OOP-     2- 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 


MARKETABLE   TITLE 


TO 


KSTATE 


BEING  ALSO 


A  TREATISE 


ON  THE 


RIGHTS  AND  REMEDIES  OF  VENDORS  AND  PURCHASERS 
OF  DEFECTIVE  TITLES  (As  BETWEEN  THEMSELVES) 


INCLUDING  THE 


Law  of  Covenants  for  Title,  the  Doctrine  of  Specific 
Performance,  and  other  Kindred  Subjects 

THIRD  EDITION 


BY 

CHAPMAN    W.    MAUPIN 

in 

OK  THH   WASHINGTON,    D.  C.,   BAR 


NEW  YORK 

BAKER,  VOORHIS  &  COMPANY 
1921 


COPYBIGHT.     1921, 

BY  BAKER,  VOORHIS  &  CO. 

T 


PREFACE. 


This  work  is  a  treatise  on  the  law  of  title  to  real  property,  as 
that  law  is  applied  between  vendor  and  purchaser.  The  material 
which  composes  it  has  been  drawn  principally  from  cases  that  have 
arisen  between  the  buyer  and  seller  of  lands,  and  not  from  decisions 
in  ejectment,  or  other  possessory  actions,  though  of  course  these 
latter  cases  have  been  availed  of  whenever  they  supply  principles 
which  affect  the  rights  of  the  vendor  or  purchaser  with  respect  to 
the  title  that  is  to  be  conveyed.  The  work  is,  therefore,  in  no  re- 
spect a  treatise  upon  real  property,  real  property  tenures,  nor  titles 
to  real  estate,  in  the  sense  in  which  this  last  term  is  commonly 
used,  but  is,  instead,  a  collation  of  the  laws  and  decisions  which 
govern  the  rights  of  both  parties  with  respect  to  the  title,  and 
prescribe  the  remedies  of  the  purchaser ;  precautionary,  where  it  is 
anticipated  that  the  title  may  prove  defective,  and  compensatory, 
where  it  has  proven  to  be  so.  Therefore,  what  circumstances  will 
entitle  a  vendee  to  protection  as  a  bona  fide  purchaser  for  value 
without  notice,  or  will  sustain  his  title  in  ejectment,  or  will  sup- 
port his  bill  to  remove  a  cloud  from  the  title,  have  not  been  made 
the  subject  of  separate  and  independent  treatment  in  this  work, 
and  have  been  considered  only  so  far  as  they  have  served  to 
illustrate  some  principle  of  the  law  of  defective  titles,  as  applied 
between  vendor  and  purchaser.  That  law  is  to  be  found  dispersed 
through  the  text  books,  and  through  the  reports  and  digests  under 
the  several  heads  of  Vendor  and  Purchaser,  Covenants  for  Title, 
Specific  Performance,  Equity  Jurisprudence,  Deeds,  Titles  to 
Real  Estate,  Real  Property,  Abstracts  of  Title,  Judicial  Sales. 
Subrogation,  and  many  other  minor  heads  of  the  law.  The  effort 
of  the  writer  has  been  to  collect  the  relevant  matter  from  these 
different  sources  in  one  volume,  and  so  to  arrange  and  to  dispose 
it  as  to  render  the  whole  easily  accessible  to  the  profession. 

Some  difficulty  has  been  experienced  in  choosing  between  several 
apparently  appropriate  titles  for  the  work.  That  which  has  been 
selected,  "  Marketable  Title,"  is  satisfactory,  but  requires  a  word 
of  explanation.  The  modern  use  and  acceptation  of  this  term  it  is 
believed  justifies  its  employment  as  the  title  of  a  treastise  upon 

[Hi] 

755649 


IV  PREFACE. 

the  rights  of  vendors  and  purchasers  of  defective  titles,  including 
as  well  the  law  of  covenants  for  title  as  the  equitable  doctrine  of 
doubtful  titles.  But  originally  the  term  was  narrow  and  technical 
in  its  meaning,  being  used  in  equity  to  denote  a  title  concerning 
which  there  was  no  reasonable  doubt.  The  term  was  not  known  in 
the  law  courts,  where  titles  were  treated  either  as  good  or  bad,  and 
judgment  rendered  accordingly.  Hence  at  law  a  title  might  be 
adjudged  good  which  in  equity  the  purchaser  would  not  be  com- 
pelled to  accept.  A  small  but  learned  and  abstruse  treatise  upon 
the  equitable  doctrine  of  marketable  titles  by  S.  Atkinson  was 
published  in  London  and  republished  in  America  (1838)  in  the 
"  Law  Library;"  from  this  work  the  limited  and  technical  signifi- 
cance of  the  expression  will  appear.  Of  late  years,  however,  the 
American  courts  have  very  generally  applied  the  term  "  un- 
marketable "  to  any  title  which  a  purchaser  cannot  be  required  to 
acfept,  without  discriminating  between  titles  absolutely  bad  and 
those  merely  doubtful,  so  that  now  "  unmarketable  "  is  commonly 
employed  by  the  courts  and  the  profession  as  a  synonym  for  "  de- 
fective "  title.  This  is  probably  due  to  the  fact  that  in  most  of  the 
States  legal  and  equitable  relief  are  administered  in  one  and  the 
same  court  and  form  of  action  without  distinction,  or  at  least 
equitable  defenses  are  allowed  to  be  interposed  in  actions  at  law. 
Ilenco  there  is  no  longer  any  occasion  for  treating  the  expression 
"  marketable  title  "  as  limited  and  technical  in  its  character.  The 
term  then,  or  rather  its  negative  form,  being  applicable  to  all 
defective  titles  whether  absolutely  bad  or  merely  doubtful,  it  is 
apprehended  that  no  inconvenience  can  arise  from  treating  under 
that  head  such  subjects  as  Covenants  for  Title,  Estoppel,  Action 
for  Damages,  Right  to  Perfect  the  Title,  and  so  on,  none  of  which 
belong  to  the  original  equitable  doctrine  of  marketable  titles,  but 
obviously  pertain  to  the  law  of  defective  titles. 

The  author  desires  to  acknowledge  the  many  facilities  for  the 
prosecution  of  his  labors  which  have  lieen  afforded  him  in  a 
generous  manner  by  his  publishers,  Messrs,  linker.  Yoorhi?  &  Co., 
of  the  city  of  New  York  ;  and  courtesies  extended  to  him  by 
Messrs.  H.  Krnnon  Peter  and  F.  S.  Key  Smith,  in  charge  of  the 
law  librarv  of  the  liar  Association  of  the  District  of  Columbia. 

C.  W.  M. 

WASHINGTON,  D.  C..  .1/Vn/  Ixf. 


PREFACE  TO  THIRD  EDITION. 


Since  the  year  1907,  more  than  twelve  hundred  decisions  have 
appeared  in  the  reports  under  the  several  heads  of  the  law  of 
"Vendors  &  Purchasers  that  are  treated  of  in  this  work.  These 
cases  have  been  examined  by  the  author  and  have  been  cited  or 
referred  to  in  their  proper  places  throughout  the  work.  Many 
of  them  have  furnished  valuable  material  for  the  enlargement  of 
the  text,  and  for  the  introduction  of  explanatory  and  illustrative 
notes.  Many  of  them  are  no  more  than  the  reaffirmation  of 
settled  principles  of  law,  but  they  have  been  cited  because  of  the 
well-known  desire  of  the  practical  lawyer  to  have  a  reference  to 
every  decision  of  his  own  court  involving  the  particular  question 
which  he  has  under  consideration. 

C.  W.  M. 

WASHINGTON,  D.  C.,  October,  1921. 

[v] 


ANALYSIS 


BOOK  I. 

Of  remedies  in  affirmance  of  the  contract  of  sale.    1 
Of  affirmance  by  proceedings  at  law.     I 

Of  proceedings  at  law  while  the  contract  is  executory.     1 
Introductory.     1 
Action  for  breach  of  contract.     11 

Title  which  the  purchaser  may  demand.     20 

Implied  and  express  agreements  as  to  the  title.     20 
Sufficiency  of  the  conveyance.     42 
Caveat  Emptor.     79 

Covenants  which  the  purchaser  may  demand     147 
Abstract  of  title.     163 
Waiver  of  objections  to  the  title.     190 
Tender  of  purchase  money  and  demand  of  deed.     209 
Measure  of  damages.     223 
Action  for  deceit.     247 

Of  proceedings  at  law  after  the  contract  has  been  executed.     270 
Action  for  covenant  broken.     270 

Covenants  for  seisin  and  for  right  to  convey.     270 

Covenant  against  incumbrances.     299 

Covenant  of  warranty  and  for  quiet  enjoyment.     354 

Covenant  for  further  assurance.     476 

Detention   of   purchase  money  on  breach  of   the  covenants 

of  warranty  and  against  incumbrances.     480 
Of  affirmance  by  proceedings  in  equity.     519 

Specific  performance  of  executory  contracts.     519 

Right  of  the  purchaser  to  take  the  title  with  compensation 

for  defects.     532 

Right  of  the  purchaser  to  perfect  the  title.     549 
Specific  performance  of  covenants  for  title.     557 
Estoppel  of  the  grantor.     561 
Reformation  of  the  conveyance.     603 

[vii] 


Vlll  ANALYSIS 

BOOK  II. 

Of  remedies  in  disaffirmance  or  rescission  of  the  contract  of  sale.    626. 
Of  rescission  by  act  of  the  parties.     626 
Of  virtual  rescission  by  proceedings  at  law.     632 

Of  proceedings  at  law  where  the  contract  is  executory.     632 

Of    the    right    to    recover    back    or    to    detain    the    purchase 

money.     632 
Of  the  obligation  of  the  purchaser  to  restore  the  premises 

to  the  vendor.     670 

Of  proceedings  at  law  where  the  contract  has  been  executed.     687 
Detention   of   the   purchase   money   on   breach  of   the   covenant 

of  seisin.     687 

Acceptance  of  conveyance  without  covenants  for  title.     705 
Restitution  of  the  purchase  money  where  there  are  covenants. 

734 

Fraud  in  respect  to  the  title.     739 
Of  rescission  by  proceedings  in  equity.     749 

Where  the  contract  is  executory.     749 

Suit  for   rescission   and  defenses  to  suit  for  specific  per- 
formance.    749 

The  doctrine  of  doubtful  titles.     767 
Right  of  the  vendor  to  perfect  the  title.     872 
Right  to  require  the  purchaser  to  take  the  title  with 

compensation     907 

Where  the  contract  has  been  executed.    917 
Injunction.     917 
Fraud  and  mistake.    938 


CONTENTS. 


BOOK  I. 

OF  REMEDIES  IN  AFFIRMANCE  OF  THE  CONTRACT  OF  SALE. 
OF  AFFIRMANCE  BY  PROCEEDINGS  AT  LAW. 

OF  PROCEEDINGS  AT  LAW  WHILE  THE   CONTRACT  is 
EXECUTORY. 

CHAPTER  I. 
INTRODUCTORY. 

CHAPTER  II. 
ACTION  FOR  BREACH  OF  CONTRACT. 

General  principles;   form  of  action.     §    1 

Doubtful  title  in  action  for  damages.     §  2 

Purchaser  in  possession  may  sue.     §  3 

Defenses  to  the  vendor's  action  for  breach  of  contract.     §  4 

CHAPTER   III. 
IMPLIED  AND  EXPRESS  AGREEMENTS  AS  TO  THE  TITLE. 

Implied   agreements: 

General  rule.     §  5 
Express   agreements: 

General  principles.     §  6 

Terms  and  conditions  of  sales.     §   7 

Auctioneer's    declarations.      Parol    evidence.     §    8 

English  rules  as  to  conditions.     §  9 

Agreement   to   make   a   "good    and   sufficient   deed."     §    10 

Agreement  to  convey  by  quit  claim.     §   11 

Agreement   to  sell   "  right,  title  and  interest."    §    12 

Agreement  to  sell  subject  to  liens.     §   13 

CHAPTER  IV. 
OF  THE  SUFFICIENCY  OF  THE  CONVEYANCE  TENDERED  BY  THE  VENDOR. 

General  observations.     §  14. 

Essential   requisites  of  the  conveyance.     §   15 

Material,  printing,  etc.     §   16 

Date.     §   17 

Parties.     §  18 

Words  of  conveyance.     §   19 


X  CONTEXTS. 

Description  of  the  premises.     §  20 

Description  of  the  estate  or  interest  conveyed.     {  21 

Signature  and  seal.     $  22 

Attestation  or  acknowledgment     f  23 

(a)  Venue  of  the  certificate.     §  24 

(b)  Name  and  official  designation  of  certifying  officer,     f  25 

(c)  Name  of  grantor.     $  20 

(d)  Annexation  of  deed.     §   27 

(e)  Jurisdiction   of   certifying  officer.     §   28 

(f)  Personal  acquaintance  with  grantor.     §29 

(g)  Fact  of  acknowledgment.     $  30 
(h)    Privy   examination   of   wife.     $    31 
(i)    Explanation  of  contents  of  deed.     §  32 
(k)   Voluntary  act  of  wife.     §   33 

( 1  )   Wish  not  to  retract.     $  34 
(m)   Reference  to  official  seal.     §  35 

(n)   Date  of  certificate.     §   36 

(o)   Signature  of  officer.     §  37 

(p)   Abbreviation  of  official  designation.     §  38 

(q)   Seal   of  officer.     $    3ft 

(r)   Surplusage  nnd  clerical  mistakes.     $  40 

(s)   Amendment  of  certificate.     §   41 
Reservation,  restrictions  and  conditions.     5  42 
Waiver  of  objections  to  the  conveyance,     i  43 

CHAPTER  V. 
CAVEAT  EMPTOB. 

General  observations.     I  44 
Application  of  the  maxim  to  judicial  sales: 
Inherent  defects  of  title,     f   45 

Effect  of  confirmation  of  the   sale.     $   46 

Exceptions  to  the  rule.     $  47 

Fraud  as  it   affects  rights  of  purchasers  at  judicial  sales.     |  48 
Errors   and   irregularities   in   the   proceedings.    Collateral   attack,     f   40 
Want  of  jurisdiction.     5  SO 
Matters  occurring  after  jurisdiction  has  attached.     |   51 

Fraud  as  ground  for  collateral  attack,     f  52 
Sales  by  executors  and  administrators: 

Snl«>s  in  pursuance  of  testamentary  powers,     f  53 
Sale*   in   pursuance  of   judicial   license,     f   54 
Fraud  on  thr;part  of  personal  representative.     I  55 
Want  of  jurisdiction.     Errors  and  irregularities,     f  66 
Sheriff's  salon: 

Want  of  title  in  execution  defendant: 

General  rules,     i  57 

Exceptions.     I  53 

Fraudulent    representations.     I   59 

Right*   of   purchaser    from    purchaser    tinder    execution.     I    60 


CONTENTS.  XI 

Sheriff's  sales  —  Continued. 

Title  under  void  judgment.     §  61 

Title  under  void  sale.     §  62 
Tax  sales.       §   63 

Sales  by  trustees,  assignees,  etc.     §  64 
Subrogation  of  purchaser  at  judicial  aad  ministerial  sales: 

Where  the  sale  is  void.     §  65 

Where  the  sale  is  valid.     §  66 

CHAPTER  VI. 
COVENANTS  WHICH  THE  PURCHASE  HAS  A  RIGHT  TO  DEMAND. 

Usual  covenants.     §  67 

From  grantors   in   their  own  right.     §   68 

From  fiduciary  grantors.     §  69 

From    ministerial    grantors.        §    70 

CHAPTER  VII. 

ABSTRACT  OF  TITLE. 

In  general.     §  71 

Root  of  title.       §    72 

Duty  to  furnish  abstract.     §  73 

Property  in  the  abstract.     §   74 

Time   in   which    to    examine   the   title  'and   verify   the   abstract.     §    75 

Summary  of  the  various  sources  of  objections  to  title.     §   76 

Objections     appearing    from     the     instruments     under     which     title     is 

claimed.     §    77 

Objections   which    appear   from   the   public   records.     §    78 
Objections  which  appear  upon  inquiries  in  pais.     §   79 

CHAPTER  VIII. 

WAIVER  OF  OBJECTIONS  TO  TITLE. 
In  general.     §   80 

Waiver  by  taking  possession.     §  81 
Laches   of   purchaser.     §    82 
Waiver  by  continuing  negotiations.     §  83 
Waiver  in  cases  of  fraud.     §   84 
Waiver  by  purchasing  with  notice  of  defect.     §  85 

CHAPTER  IX. 
TENDER  OF  PERFORMANCE  AND  DEMAND  FOR  DEED. 

General   rule.     §   86 

Exceptions.     §  87 

Duty  of  the  vendor  to  tender  performance.     §  88 

Pleadings.     §   89 


iil  CONTEXTS. 

CHAPTER  X. 
MEASURE  OF  DAMAGES  FOB  INABILITY  TO  CONVEY  A  GOOD  TITLE. 

General    observations.     §   90 

Where  the  vendor  acts  in  good  faith: 

Flureau  v.  Thornhill.     Hopkins  v.  Lee.     §  91 

Barter   contracts.     §   92 

Expenses  of  examining  the  title.     §  93 

Interest.     §    94 

Rents  and  profits.     8  95 

Improvements.        §   96 

Where  the  vendor  acts  in  bad  faith.     §  97 
Where  the  vendor  expects  to  obtain  the  title.     §  98 
Where  the  vendor  refuses  to  perfect  the  title.     §  99 
Liquidated  damages.     §  100 

CHAPTER  XI. 
ACTION  AGAINST  THE  VENDOR  FOB  DECEIT. 

General  principles.     §  101 

What  constitutes  fraud  with  respect  to  the  title: 

Concealment  of  defects.     §   102 

Willful  or  careless  assertions.     §  103 

Defects  which   appear  of   record.     §    104 
•••nee  of  fraudulent  intent.     §  105 

Statements  of  opinion.     §  106 
Pleading.     §   107 

OF  A  i  i  II:.MA.\(  K  BY  PROCEEDINGS  AT  LAW  AFTER  THE  CONTRACT 
HAS  IJEKN  EXECUTED — ACTION  FOR  COVENANT  BROKEN. 

CHAPTER  XII. 
OF  THE  COVENANT  FOB  SEISIN. 

Form  and  effect.     §  108 

What    collet it lite*    a    breach.      §    109 
Aksignability  of  tlii>  imciiant: 

In  general,     f    110 

Doe*  not  run  with  (lie  land.     §    111 

itraiy   rule.      Diriiiiu-  <.f  continuing  breach.     §    112 

Possession    nn;»l    ha\c   |.a-«e<l   \\ith   the   covenantor's  deed.     §    113 

Wh-n   Statute  nf    Limitations  Iwgin.s  to  run.     8    114 

(mi  Hi.  t   of  laws.     {    }\:> 
ire  c,f  damages.      {110 
Kurdm  of  proof,     f   117 
Pleading*.     |  118 


CONTENTS.  Xlll 

CHAPTER  XIII. 

COVENANT  AGAINST  INCUMBRANCES. 

Form.     §  119 

Restrictions  and  exceptions.     §    120 

Parol  agreements.     §   121 
What  constitutes  breach.     §   122 

Definition  of  incuinbrance.     §   123 

Pecuniary   charges  and  liens.     Effect  of  notice.     §    124 

Outstanding  interest  less  than  a  fee.     §    125 

Easements   or   physical   incumbrances.     §    126 

Notice  of  easement  at  time  of  purchase.     §  127 
Assignability  of  this  covenant,     §   128 
Measure  of  damages : 

General  rules.     §   129 

Where  covenantee  discharges  the  incumbrance.     §    130 

Damages   cannot   exceed   purchase   money  and   interest.     §    131 

Where   incumbrance   is  permanent.     §    132 
Pleading  and  proof.     §  133 

CHAPTER  XIV. 
COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT. 

Form.     §   134 

Construction  and  effect.     §    135 
Qualifications  and  restrictions.     §   136 
When  implied.     §   137 
Parties  bound  and  benefited: 
Married  women.     §   138 

Heirs  and  devisees.     Joint  convenantors.     §  139 
Personal   representatives.     §    140 
Who  may  sue  for  breach.     §  141 
What  constitutes   breach : 

Tortious  disturbances.     §   142 

Eminent  domain  and  acts  of  sovereignty.     §  143 

Actual  eviction : 

General  rule.     §   144 

Entry  by  adverse   claimant.     Legal  process.     §    145 
Constructive  eviction: 

Inability   to   get  possession.     §    146 
Vacant  and  unoccupied  lands.     §   147 
Surrender  of  possession.     §   148 
Hostile  assertion  of  adverse  claim.     §   149 
Purchase   of    outstanding   title.     §    150 
Hostile  assertion  of  adverse  claim.     §   151 
Loss  of  incorporeal   rights.     §    152 


XIV  CONTEXTS. 

Covenant  of  warranty  runs  with  the  land: 

General  rule.     §   153 

Assignee  may  sue  in  his  own  name.     §    154 

Separate  actions  against  original  covenantor.     §  155 

Release  of  covenant  by  immediate  covenantee.     §   156 

Quit   claim   passes  benefit  of  covenant.     $    157 

Immediate  covenantee  must  have  been  damnified.     $    158 

Remote  assignee  may  sue  original   covenantor.     §    159 

Mortgagee  entitled  to  benefit  of  covenant.     §    1GO 

Original   covenantor  must  have  been  actually  seised.     §    1(51 

Assignee  not  affected  by  equities  between  original  parties.     $   102 

Covenant  extinguished  by  reconveyance  to  covenantor.     §   1C3 
Measure  of  damages: 

General   rule.     §    164 

New  England  rule.     §  165 

Amount  to  which  assignee  is  entitled.     §  166 

Consideration   may  be  shown.     §    167 

Where  covenantee  buys  in   paramount  title.     8   168 

Loss  of   term    for  years.     §    169 

Eviction  from  part  of  the  estate.     §   170 

Improvements.     §   171 

Interest  on  damages.     §  172 

Costs.     §    173 

Counsel  fees  and  expenses.     §  174 

Notice  of  In •. till-  suit  and  request  to  defend.     §  175 

Pleading  and  burden  of  proof.     $  176 

Covenant  for  quite  enjoyment.     $  177 

CHAPTER   XV. 

COVENANT  FOR  FURTHER  ASSURANCE. 
In  general.     $  178 
Breach.     Estoppel.     Assignability.     Damages.     §   179 

CHAPTER  XVI. 

DETENTION  OF  THE  PURCHASE  MONEY  WHERE  THERE  HAS  BEEN  A  BREACH  Of 

THE  COVENANTS  FOB  TITLE. 
General   rule.     |    180 

Merger  of   prior   agreements   in   covenant*   for   title.     §    181 
Purchase  with  knowledge  of  defect.     $  182 
Recoupment.     $    183 

Keroupment  in  foreclosure  of  purchase-money  mortgage.     8   184 
Partial   failure  of  consideration.     |    185 
AftMimpftit  to  try  title.     |   186 
What  constitute*  eviction.     I    187 
Discharge  of  im  umbra  noes.     I    188 
Rule  in  Texnu.     |  180 
Rule  in  South  Carolina,     i    190 
Plending*.     I    191 
Re*  u  m.'.     I    102 


CONTENTS.  XV 


OF  AFFIRMANCE  OF  THE  CONTRACT  BY  PROCEEDINGS  IN  EQUITY. 

CHAPTER  XVII. 

SPECIFIC  PERFORMANCE  OF  EXECUTORY  CONTRACTS  AT  THE  SUIT  OF  THE 

PURCHASER. 
In  general.     §   193 

Payment  of  the  purchase  money  as  condition  precedent.     §  194 
Laches  of  purchaser.     §   195 
Damages  in  equity.     §    196 

CHAPTER  XVIII. 
RIGHT  OF  THE  PURCHASER  TO  TAKE  TITLE  WITH  COMPENSATION  FOB  DEFECTS. 

General  rule.     §   197 

Indemnity  against  future  loss.     §  198 

Indemnity  against  dower.     §    199 

Exceptions  to  general  rule.     §  200 

Right  of  vendor  to  rescind  on  failure  of  the  title.     §  201 

.  CHAPTER  XIX. 
OF  THE  RIGHT  OF  THE  PURCHASER  TO  PERFECT  THE  TITLE. 

By  the  purchase  of  adverse  claims.     §  202 

By  the  discharge  of  liens  or  incumbrances.     §  203 

Subrogation  of  purchaser.     §  204 

CHAPTER   XX. 
OF  SPECIFIC  PERFORMANCE  OF  COVENANTS  FOB  TITLE. 

General  rules.     §  205 

Covenant  against  incumbrances.     §  206 

Conveyance  of  after-acquired  estate.     §  207 

CHAPTER  XXI. 

ESTOPPEL  OF  THE  GRANTOB. 
General  rules.     §   208 

After-acquired  estate  must  be  held  in  same  right.     §  209 
Mutual  estoppels.     §  210 
Estoppel  of  mortgagor.     §  211 

Effect  of  void  conveyance  as  an   estoppel.     §   212 

Effect  of  estoppel  as  an  actual  transfer  of  the  after-acquired  estate.     §  213 
Rights  of  purchaser  of  the  after-acquired  estate  from  the  covenantor.     §  214 
Compulsory  acceptance  of  the  after-acquired  estate  in  lieu  of  damages.     §  215 
What   covenants  will   pass  the  after-acquired  estate.     §    216 
Estoppel  not  dependent  on  avoidance  of  circuity  of  action.     §  217 
Effect  of  quit  claim  by  way  of  estoppel.     §  218 
Estoppel  of  grantee.     §  219 
Resume.     §  220 


XVI  CONTENTS. 

CHAPTER   XXII. 
REFORMATION  OF  THE  CONVEYANCE. 

When  granted  and  when  denied: 

General  principles,     g  221 

Mistake  of  fact.     §  222 

Mistake  of  law.     §  223 

Mutuality  of  mistake.     Fraud.      §   224 

Mistakes  resulting  from  negligence.     §  225 

Nature  and  degree  of  evidence  required.     §  22G 

Laches  in  application  for  relief.     £  227 

Defective  execution  of  statutory  power.     §   228 
In  favor  of  and  against  whom   relief  may  be  had: 

In  general.     §  229 

In  favor  of  grantor.     §  230 

Purchasers   and   creditors.     §   231 

Volunteers.     §  232 

Married  women.     §  233 


BOOK  II. 

OF  REMEDIES  ix  RESCISSION  ou  DISAFFIRMA_NCE  OF  THE  CON- 
TRACT OF  SALE. 

CHAPTER  XXIII. 

OF  RESCISSION  BY  ACT  OF  THE  PARTIES. 

General  principles.     S  234 
Rescission  by  one  party  only.     §  235 
Statute  of  Frauds.     §   236 

OF  VIRTUAL  RESCISSION  OF  THE  CONTRACT  BY  PROCEEDINGS  AT 
LAW. 

OF  PROCEEDINGS  AT  LAW  WHERE  THE  CONTRACT  is  EXECU- 
TORY. 

CHAPTER  XXIV. 

OF  THE  RIGHT  TO  RECOVER  BACK  OR  PFTAI*  THE  PURCHASE  MONET  ON 
FAILURE  OF  THE  TITLE. 

General  principles.     I   237 

Restitution  of  the  pun-haw  money.     8  238 

What  notion  purchaser  should  bring.     S  230 

Detention  of  the  purehaw  money.     {  240 

Exception*  nnd  qualifications,     f  241 

What  objections  to  title  may  be  made.     I  242 


CONTEXTS.  XV11 

Expenses  of  examining  the  title.     §  243 

Burden  of  proof.     Miscellaneous  rules,     §   244 

Right  to  rescind  where  the  estate  is  incumbered.     §   245 

Buying  with  knowledge  of  defect  or  incumbrance.     §  246 

Chancing  bargains.     §  247 

Effect  of  accepting  title  bond.     §  248 

Inquiry  into  consideration  of  sealed  instrument.     §   249 

Right  to  enjoin  collection  of  purchase  money.     §  250 

Rights  against  transferee  of  purchase-money  note.     §  251 

Refusal  of  vendor  to  convey  for  want  of  title.     §  252 

Tender  of  purchase  money  and  demand  of  deed.     §  253 

Offer  to  rescind.     §  254 

Pleadings.     §   255 

CHAPTER  XXV. 

OF  THE  OBLIGATION  OF  THE  PURCHASES  TO  RESTORE  THE  PREMISES  TO  THE 

VENDOR. 

General  principles.     §  256 

Vendor  must  be  placed  in  statu  quo.     §  257 

Restoration  of  premises  a  condition  precedent  to  rescission.     §  258 

Rule  in  Pennsylvania,     §  259 

Restoration  of  the  premises  in  cases  of  fraud.     §  260 

When  purchaser  need  not  restore  the  premises.     Purchaser's  lien.     §  261 

Other  exceptions.     §  262 

Restoration  of  the  premises  where  the  contract  is  void.     §   263 

OF  VIRTUAL  RESCISSION  BY  PROCEEDINGS  AT  LAW  AFTEK  THE 
CONTRACT  HAS  BEEN  EXECUTED. 

DETENTION  OF  THE  PURCHASE  MONEY. 

CHAPTER  XXVI. 

OF  DETENTION  OF  THE  PURCHASE  MONEY  WHERE  THERE  HAS  BEEN  A  BREACH 
OF  THE  COVENANT  OF  SEISIN. 

General  rule.     §  264 

Qualifications  of  this  rule.     §  265 

Breach  of  covenant  as  to  part  of  the  premises.     §  266 

CHAPTER  XXVII. 

OF  THE  DETENTION  OR  RESTITUTION  OF  THE  PURCHASE  MONEY  WHERE  THH 
DEED  CONTAINS  NO  COVENANTS  FOR  TITLE. 

General   principles.     §   267 
Exception.     Void  conveyances.     §   268 
Merger  of  prior  agreements  in  the  deed.     §  269 
Merger  in  cases  of  fraud,     §  270 

Rule  in  Pennsylvania  as  to  detention  of  the  purchase  money.     §  271 
iii 


CONTENTS. 


CHAPTER   XXVIII. 

OF  RESTITUTION  OF  THE  PURCHASE  MONEY  WHERE  THERE  ARE  COVENANTS  FOB 

TITLE. 

General  rule.     8  272 
Exceptions.     8   273. 

CHAPTER  XXIX. 

OF  DETENTION  OR  RESTITUTION  OF  THE  PURCHASE  MONEY  IN  CASES  OF  FRAUD. 

General  rule.     §  274 
Executed  contracts.     8  275 
Waiver  of  fraud,     fi  270 

OF  RESCISSION  BY  PROCEEDINGS  IN  EQUITY. 
WHERE  THE  CONTRACT  is  EXECUTORY. 

CHAPTER  XXX. 
OF  THE  SUIT  FOB  RESCISSION  PROPER. 

General  principles.     8  277 

Defenses  to  suits  for  specific  performance.     8  278 

Placing  the  vendor  tn  statu  quo.     8  279 

Interest.     Rents  and  profits.     Improvements.     6  280 

Pleading.     8  281 

Parties.     8  282 

CHAPTER  XXXI. 

OF  DOUBTFUL  TITLES. 
General  rules.     8  283 

Classification  of  cases  of  doubtful  titles.     8  284 
Cases  in  which  the  title  will  be  held  free  from  doubt.     8  285 
Doubtful  titles  at  law.     8  286 
Inconclusiveness  of  judgment  or  decree.     8  287 
Special  agreements  as  to  the  title.     8  288 
Parol  evidence  to  remove  doubts.     8  289 
Equitable  title.     Adverse  claims.      8  290 
Defeasible  estates.     8  291 

Title  as  dependent  upon  adverse  possession.     8  292 
Presumptions  from  lapse  of  time.     8  293 
Title  as  affected  by  notice.     8  294 
Burden  of  proof.     8  295 
Illustrations  of  the  foregoing  principles.     8  290 

Errors  and   irregularities  in  judicial  proceedings.     8  297 

Sale  of  the  estates  of  persons  under  disabilities,     f  288 

Want  of  parties  to  suits.     8  299 

Defective    conveyances    and    acknowledgments.      Imperfect    registration. 
fl  300 

Construction  of  deeds  and  wills.     8  301 

Competency  of  parties  to  deeds.     8  302 

Title  as  dependent  upon  intestacy.     Debts  of  decedent.     8  303 


CONTENTS.  XIX 

Incumbrances.     §  304 

Admitted  incumbrances.     §  305 

Incumbrances  which  make  the  title  doubtful.    §  306 
Apparently  unsatisfied  incumbrances.     §  307 
Encroachments  and  deficiencies.     §  307a 

CHAPTER  XXXII. 
OF  THE  RIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE. 

Before  the  time  fixed  for  completing  the  contract.     §  308 
After  the  time  fixed  for  completing  the  contract.     §  309 
Exceptions:    (1)    Where  time  is  material.     §  310 

(2)  Where  the  covenants  are  mutual  and  dependent.     §  311 

(3)  Waiver  of  the  right.     §  312 

(4)  Loss  and  injury  to  the  purchaser.     §  313 

(5)  Fraud  of  the  vendor.     §  314 

(6)  Want  of  colorable  title.     §  315 

(7)  Laches  of  vendor.     §  316 

(8)  Effect  of  special  agreements.     §   317 

(9)  Effect  of  notice  and  request  to  perfect  the  title.     §  318 
In  what  proceedings  the  right  may  be  asserted.     §   319 
Reference  of  the  title  to  master  in  chancery: 

When  directed.     §  320 
When  refused.     §  321 

At  what  stage  of  the  proceedings  reference  may  be  made.     §  322 
Procedure.     Costs.     §  323 
Interest  on  the  purchase  money  while  title  is  being  perfected.     §  324 

CHAPTER  XXXIII. 

OF  THE  RIGHT  OF  THE  VENDOR  TO  REQUIRE  THE  PURCHASER  TO  TAKE  THE 
TITLE  WITH  COMPENSATION  FOR  DEFECTS. 

General  rule.     §  325 

Exceptions.     §  326 

Indemnity  against  future  loss.     §  327 

CHAPTER  XXXIV. 

WHERE  THE  CONTRACT  HAS  BEEN  EXECUTED.    OF  THE  REMEDY  BY  INJUNCTION 
AGAINST  THE  COLLECTION  OF  THE  PURCHASE  MONEY. 

General  observations.     §  328 
Fraud  on  the  part  of  the  grantor.     §   329 
Want  of  opportunity  to  defend  at  law.     §  330 
Insolvency  or  non-residence  of  grantor.     §  331 

Where  the  estate   is   incumbered.      §   632 

Foreclosure   of  purchase-money  mortgage.      §   333 

Where  there  are  no  covenants  for  title.     §   334 

Temporary  and  perpetual  injunction.     §  335 

Resume.     §  336 

Where  there  is  no  present  right  to  recover  substantial  damages  for  breach 
of  the  covenants.     §  337 


XX  CONTENTS. 

CHAPTER  XXXV. 
OF  FRAUD  AND  MISTAKE. 

Fraud  on  the  part  of  the  grantor.     §  338 
General  principles: 

Damages  in  equity,     f  339 
Mistake  of  fact: 

General  rule.     $  340 

Negligence  of  purchaser.     §  341 

Immaterial   mistakes.     §   342 

Mistakes  as  to  quantity,     f  343 
Mistake  of  law: 

General  rule.     §  344 

Distinction  between  ignorance  of  law  and  mistake  of  fact.     §  345 

Erroneous  construction  of  devise  or  grant.     8  340 

Where  the  construction  of  the  law  is  doubtful.     §  347 

Misrepresentation  of  the  law  by  the  vendor,     §  348 


TABLE  OF  CASES 


[REFERENCES  ARE  TO  PAGES] 


A. 


Abate  v.  Bianco,  848 

Abbott  v.  Allen,  272,  275,  294, 

297,  485,  487,  694,  934 
Abbott  v.   Fellows,  867 
Abbott  v.  Hills,  414 
Abbott  v.  James,  785,  844 
Abbott  v.  Rowan,  399 
Abby  v.  Goodrich,  413 
Abel  v.  Hethcote,  798 
Abendroth  v.  Greenwood,  36 
Abercombe  v.  Owings,  516 
Aberdeen  v.  Blackman,    301 
Abernathy  v.  Boazman,  276,  361 
Abernathy  v.  Phillips,  226 
Able  v.  Chandler,  116 
Abner  v.  York,  933,  934 
Abraham  v.  Mieding,  806 
Abrams  v.  Rhoner,  806,  814 
Ackerman  v.  Smilev,  595 
Ackley  &  Co.  v.  Hunter,  270,  391 
Acme    Realty    Co.    v.    Schinasi, 

•870 

Adair  v.  McDonald,  624 
Adam  v.  McClintock,   572 
Adami  v.  Backer,  826,  829 
Adams  v.  Baker,  363 
Adams  v.  Conover,  275,  407,  444 
Adams  v.  Cox,  425,  459 
Adams  v.  Fairbain,  647 
Adams  v.  Gibney,  372 
Adams  v.  Heathcote,  197,  199 
Adams  v.  Henderson,  853 
Adams  v.  Jarvis,  266 
Adams  v.  Jordan,  511 
Adams  v.  Kibler,  86 
Adams  v.  Messenger,  533 
Adams  v.  Reed,  604,  699 
Adams  v.  Rhoner,  809 
Adams  v.  Ross,  367,  596 
Adams  v.  Smith,  145 
Adams  v.  Stevens,  622 
Adams  v.  Valentine,  853,  914 
Adamson  v.  Rose,  226 
Aday  v.  Echols,  530 
Addleman  v.  Mormon,  928 
Adkins  v.  Gillespie  795,  808,  810 
Adkins  v.  Tomlinson,  276,  292 
Adler  v.  Kohn,  216 
Agan  v.  Shannon,  109 
Agens  v.  Koch,  852,  865,  873 
Aiken  v.   Franklin,  274 
Aiken  v.  McDonald,  431,  436,  449 


Aiken  v.  Sanford,  35 
Aiple  &c.  R.  E.  Co.  v.  Spelbrink,  321 
295,  538 

Ake  v.  Mason,  327 

Akerly  v.  Vilas,  690 

Ala.  Life  Ins.  Co.  v.  Boykin,  70 

Albright  v.  S'chwabland,  388 

Albro  v.  Garland,  871 

Alday  v.  Rock  Island  Co.,  122 

Alden  v.  Parkhill,  509 

Alexander  v.  Kerr,  203 

Alexander  v.  McAuley,  706 

Alexander  v,  Merry,  66 

Alexander  v.  Mills,  775,  777,  779 

Alexander  v.  Newton,  607 

Alexander  v.  Schreiber,  336 

Alexander  v.  Staley,  459 

Alexander  v.  Utley,  201,  627 

Alger  v.  Anderson,  943 

Alkus  v.  Goettmann,  843 

Allaire  v.  Whitney,  747 

Allemong  v.  Gray,  366 

Allen  v.  Adams,    192,    196,   671,   753, 

765,  880 

Allen  v.  Allen,   283 
Allen  v.  Anderson,  226,  229,  609 
Allen  v.  Atkinson,    171,   646,   819 
Allen  v.  Denoir,  70 
Allen  v.  Elder,  609 
Allen  v.  Hammond,  945 
Allen  v.  Hazen,    153 
Allen  v.  Holton,  367,  596 
Allen  v.  Hopson,   652,   744,   920 
Allen  v.  Kennedy,   283,   410 
Allen  v.  Lee,  304,  362 
Allen  v.  Little,  286.  412,  415 
Allen  v.  Miller,  402,  406,  426,  439 
Allen  v.  Milling  Co.,   796 
Allen  v.  McKeon,  791,  792 
Allen  v.  Pegram,  483,  705 
Allen  v.  Phillips,   659,   799,   806 
Allen  v.  Sayward,  586 
Allen  v.  Talbot,   940,   942 
Allen  v.  Taylor,    361 
Allen  v.  Thornton,  921,  923 
Allen-West  Com.  Co.  v.  Patrick,  322 
Allen  v.  Yeater,  153 
Allinder  v.   Bessemer  Co.,  426 
Ailing  v.  Vanderstucken,  859,  881 
Allis  v.  Nininger,  394,  395 
Allison  v.  Allison,  363,  386 
Allison  v.  Shilling,  538,  542 
Allstead  v.  Nicoll,  880 
[xxi] 


XXII 


TABLE   OF   CASES 


[REFERENCES  ARE  TO  PAGES] 


Almy  v.  Hunt,  312 

Alpern  v.  Farrell,  212,  215,  801 

Alpha  Cera.  Co.  v.  Shirk,  812 

Alston  v.  Pieerson,  300 

Altemus  T.  Nichols,  572 

Altgelt  v.  Mernitz,  112 

Altman  v.  McMillin,  853 

Alvarez  v.  Brannan,  13,  585,  718,  889 

Alvord  v.  Waggoner,  372,  387 

Alwood  v.  Fagan,  790 

American  Assoc.  v.  Short,  694 

American  Sav.  Bank  v.  Helgesen,  571 

Ames  v.  Cosby,  343,  402 

Amick  v.  Bowyer,  660 

Amos  v.  Cosby,  343,  402 

Anderson  v.  Anderson,  187 

Anderson  v.  Casey  Co.,  597 

Anderson  v.  Cresfon  L.  Co.,  874 

Anderson  v.  Foulke,  82 

Anderson  v.  Knox,  343,  344,  406 

Anderson   v.    Lincoln,  203,  484,   703. 

932 

Anderson  v.  Long,  714 
Anderson  v.  Merrill  Co.,  454 
Anderson  v.  Ohmmtka,  645,  675 
Anderson  v.  Snyder,  907 
Anderson    v.    Strasburger,    172,    792, 

876,   878 
Anderson   v.    Washabaugh,   388,  457, 

717 

Anderson  v.  Wilder,  574 
Andrews  v.  Appel.  286,  338,  339,  346 
Andrews  v.    Babcock,  762,  798,   872, 

894 

Andrews  v.  Richardson,  141,   144 
Andrews  v.  Spurrs,  608 
Andrews  v.  Wolcott.  414.  418 
Andrews  v.  Word,  153,  866 
Andrus    v.    Smelting   Co.,    257,    380, 

453.  719 
Ankeny  v.  Clark,   154,  762,  798,  906 

911 
Anniaton     Lumber    Oo.    v.    Griffith, 

309,   311 
Anonymous,  478 

Anthony  v.   Rockefeller,  361,  393 
Appleton  v.   Hanks.   161 
Appowel  v.   MI mn mix.  415 
Arhib.  In  re.  547 
Archer  v.  Archer,  857 
A  rent. -»en  v.  Moreland,  39,  789,  890 
Arey  v.  Baer,  807 
Argall  v.  Raynor.  785.  822,  831 
A  fledge  v.  Brook*.  220 
Armstead  v.  Ifundly,  267,  944,  948 
Armstrong'**  App..  *120 
Armstrong  v.  Breen,  879 
Armstrong  v.  Coal  Co.,  157,  873 
Armstrong  v.  I)mrby,  477,  478,  558 


Armstrong  v.  Dunn,  218,  222 

Armstrong  v.   Harshorn,   107 

Armstrong  v.  Palmer,  49,  218,  873 

Armstrong  v.  Trust  Co.,  315 

Arnaud  v.  Austin,   789 

Arnett  v.  Smith,  876 

Arnold  v.  Carl.  928 

Arnold  v.  Chamberlain,  327 

Arnold  v.  Joines,  410,  426,  467 

Arnold  v.  Nichols,  563 

Arnstein  v.   Burroughs,  914 

Aroian  T.  Fairbanks,  807 

Arrison  v.  Harmstead,  188 

Arthur  v.  Weston,  48 

A.  S.  Abel!  Co.  v.  Ins.  Co.,  815 

Asay  v.  Lieber,  725 

Ash  v.  Holder,  549 

Ashbaugh  v.  Murphy,  78 

Ashburn  v.  Watson,*  376.  462 

Ashburner  v.  Sewell,  205,  547 

Asher  Lumber  Co.  v.  Cornett,  410 

Ashwell  v.  Ayres,  58 

Ashwoith  v.  Mounsey.  30 

Askew  v.  Bruner,  311   312 

Astor  v.  Miller,  412,  418 

Athens  v.  Nale,  358 

Athey  v.  McIIcnry,  607 

Atkins  v.  Hahrett"  38 

Atkinson  v.  llager,  483,  923 

Atkinson  v.  Taylor,  773.  836 

Atlantic    Ref'g  "Co.  v.  Sylvester,  856 

Atler  v.  Krskine,  390 

Atteberry  v.  Blair.  164,  796,  811,  837 

Atty.-Gen.  v.  Day.  534.  535,  915 

Atty.-Gen.  v.  Purmort,  366 

Atwood   v.  Chapman.  722 

Atwood  v.  Fagan,  825 

Atwood  v.  Frost,  120 

Aufricht  v.  Northrup,  304,  305,  306, 

362 

Augdberg  v.  Meredeth.  886 
Austin    V.    I  tar  n  mil.   866 
Austin  v.  Ewell,  521,  533 
Austin  v.  McKinney,  402 
Austin  v.  Richards!  363 
Austin  v.  Shipman.  26 
Auwerter  v.  Mathiot,  122,  130 
Aven  v.  Beckom.  100 
Averett   v.    Lipscombe,   27,   34,   790, 

897 

Averell  v.  Wilson.  600 
Avery  v.  Aikens.  592 
Avery  v.  Dougherty,  371,  382 
Axtel   v.    Chase,   209,  395,  396,  604, 

7.r>9 

Aver  v.  Brick  Co.,  307 
Aylett  v.  Afthton.  637,  015,  016 
Ayling  v.  Kramer,  323 
Avre«  v.  Mitchell.  201 


TABLE  OF   CASES 


xxm 


[REFERENCES  ABB  TO  PAGES] 


B. 


Babbitt  v.  Doe,  107 

Babcock  v.  Case,  253,  257,  678,  739, 

758,  941 

Babcock  v.  Collins,  48 
Babcock  v.  Day,  730 
Babcock  v.  Trice,  509 
Babcock  v.  Urquhart,  227 
Babcock  v.  Wilson,  40,  155 
Bacchus    v.    McCoy,    272,    283,    287, 

289 

Bachman  v.  Ennis  R.  E.  Co.,  796,  847 
Backhurst  v.  Mayo,  131 
Backman  v.  Park,  892 
Bacon  v.  Lincoln,  296,  297 
Bacot   v.    Fessenden,    208,    804,    853, 

854,  858 

Baecht  v.  Hevesay,  646 
Bagley  v.  Fletcher,  153 
Bailey  v.   Hopper,  575 
Bailey  v.  James,  39,  542,  753,  911 
Bailey  v.  Miltenberger,  384 
Bailey  v.  Murphy,  361 
Bailey  v.  School,  94 
Bailey  v.  Smock,  257,  258 
Bailey  v.  iSnyder,  725 
Bailey  v.  Timberlake,  622 
Bain  v.  Fothergill,  226,  238,  531 
Bainbridge  v.  Kinnaird,  537 
Baird  v.  Goodrich,  692,  918,  924 
Baird  v.  Laevison,  926 
Baker  v.  Austin,  595 
Baker  v.  Baker,  93,  754 
Baker  v.  Bradt,  302 
Baker  v.  Coe,  104 
Baker  v.  Corbett,  229,  439,  550 
Baker  v.  Howell,  503 
Baker  v.  Hunt,  272 
Baker  v.  Johnson,  390 
Baker  v.  Massey,  609,  620 
Baker  v.  Pyatt,  621,  624 
Baker  v.  Railsback,  508,  539 
Baker  v.  Savidge,  737 
Baker  v.  Shy,  846,  876 
Balch  v.  Arnold,  562 
Baldridge  v.  Oook,  2,05 
Balclry  v.  Parker,  912 
Baldwin  v.  Brown,  534 
Baldwin  v.  Drew,  148,  369,  514,  707 
Baldwin  v.  MoGrath,  879 
Baldwin  v.  Munn,  223,  226,  229,  23-1 
Baldwin  v.  Kerlin,  609 
Baldwin  v.  Salter,  878 
Baldwin  v.  Smith,  393 
Baldwin  v.  Trimble,  853,  866 
Balfour  v.  Whitman,  318 
Ballard  v.  Burroughs,  361 
Ballard  v.  Child,  367 
Ballard  v.  Johns,  119 


Ballard  v.  Way,  32 

Ballard  v.  Walker,  199 

Ballentine  v.  Clark,  618 

Ballou  v.  Clark,  352 

Ballou  .v.  Lucas,  722 

Ballou  v.  Sherwood,  806 

Balmanno  v.  Lumley,  537,  911,  915 

Baltimore,  etc.,  Society  v.  Smith,  226 

Bamford  v.  Harris,  495 

Bandy  v.  Cortright,  371 

Baney  v.  Killman,  534 

Bangs  v.  Barrett,  906 

Bank  v.  Bank,  940 

Bank  v.  Baxter,  252 

Bank  v.  Clements,  345,  440 

Bank  v.  Ettinge,  758 

Bank  v.  Loughran,  819 

Bank  v.  Mersereau,  524,  575,  584 

Bank  v.  Risley,  134 

Bank  of  Col.  v.  Hagner,  197 

Bank  of  U.  S.  v.  Bank  of  Wash.,  134 

Bank  of  U.  S.  v.  Cochran,  96 

Bank  of  U.  S.  v.  Daniel,  954 

Bank  of  Winchester  v.  White,  461 

Banks  v.  Ammon,   55,   116,   253,   726 

Banks  v.  Walker,  499,  734,  705,  931 

Banks  v.  Whitehead,  391,  472 

Bankson  v.  Lagerlof,  308 

Bannister  v.  Higginson,   107 

Bannister  v.  Read,   634 

Baptiste  v.  Peters,  26'2,  942,  944 

Barada-Ghia  Co.  v.  Keleher,  568 

Barber  v.  Gery,  866 

Barbour  v.  Hickey,  528,  539 

Barbour  v.  Nichols,  228 

Bardeen  v.  Markstrum,  486 

Bardell  v.  Trustees,  376 

Barden  v.  Stickney,  370 

Bardes  v.  Herman,  646,  770 

Bardsley's  Appeal,  762 

Barger  v.  Gery,  797 

Barickman  v.  Kuykendall,  685,  915 

Barker  v.  Circle,  588 

Barker  v.   Denning,  321,  349 

Barker  v.  Kuhn,  295 

Barkhamstead  v.  Case,  706,  920 

Barlow  v.  Delaney,  361,  385,  402 

Barlow  v.  McKinley,  330,  332 

Barlow  v.  St.  Nicholas  Bank,  316 

Barlow  v.  Scott,  154 

Barnard  v.  Brown,  806 

Barnard  v.  Duncan,  158,  159 

Barnard  v.  Lee,  886,  896 

Barnes'  Appeal,  533 

Barnes  v.  Bartlett,  609 

Barnes  v.  Lightfoot,   364 

Barnes  v   U.  P.  R.  Co.,  255 

Barnes  v.  Wood,  532 

Barns  v.  Wilson,  326 


XXIV 


TABLE  OF  CASES 


[REFERENCES  ARE  TO  PAGES] 


Barnett  v.  Clark,  600,  924 

Barnett  v.  Garnis,  196 

Barnett  v.  Hughey,   160,  425 

Barnett  v.  Keehn,  306 

Barnett  v.  Montgomery,  391,  455 

Barnett  v.  Shackelford,  67 

Barnett  v.  Telephone  Co.,  774 

Barnhart  v.  Hughes,  315 

Barnum  v.  Lockhart,  833 

Barnwell  v.  Harris,  778,  805 

Barr  v.  Gratz,  575 

Barr  v.  Greeley,  400,  441 

Barre  v.  Flemings,  383 

Barrere  v.  Bartet,  383 

Barrett  v.  Churchill,  87 

Barrett  v.  Gaines,  882 

Barrett  v.  Hughey,  437 

Barrett  v.  Porter,  389 

Barrette  v.  Whitney,  777,  785,  796, 

826 

Barren  v.  Cooperage  Co.,  587 
Barron     v.  Easton,  13 
Barron  v.  Mullin,  82 
Barrow  v.  Bispham,  35 
Barry  v.  Guild,  392,  705 
I'.ar-k y  v.  Posey,  562,  836,  867 
Bartak  v.  Isvolt,  540 
Bartee  v.  Tompkins,  117 
Barth  v.  Ward,  314 
Barthel  v.  Kngle,  534 
Bartholomew  v.  Candee,   280 
Bartle  v.  Curtis,  866 
Bartlett  v.  Blanton,  838 
Bartlett  v.  Farrington,  382 
Bartlett  v.  London.    127,   659 
J '.art Ictt  v.  Magee,  801 
Bartlett  v.  Salmon,  854 
Bartlett  v.  Tarbell,  484 
Barton  v.  Bouvien,  911 
Barton  v.  Long,  263 
Barton  v.  Morris,  56,  573 
Barton  v.  Rector.   197,  640 
Baftford  v.  Pearson,  276 
Bafthore  v.  Whialer,   113,  731 
Mii-km  v.  Hnuner,  905 
BM»  v.  Gilliland,  534,  905 
B«M  T.  Stamen,  393,  437,  450 
Bannett  v.  Lockard,    122,     140,     144, 

145 

Busett  v.  Welch,  313 
Baston  v.  Clifford,  220,  634,   759 
Batrhelder  v.  Curtfa,  346,   349 
Batrhelder  v.  Maron.  767,  787 
Batrhelder  v.  Sturgia,  321,  349 
Bateman  v.  Hopkintt,  526,  528 
Hat i- man  v.  .Tohnnon,   38,   49,   528 
Battman'R  Petition,  70 
Bates  v.  Bate*,  616 


Bates  v.  Delavan,  736,  753,  705,  943, 

946,  947 

Bates  v.  Foster,  367 
Bates  v.  Lyons,  878 
Bates  v.  Swiger,  521,  535,  556 
Batley  v.  Foederer,  853 
Batterman  v.  Pierce,  485 
Hanoi-inn  v.  Smith,  361 
Battle  v.  Rochester    City    Bank,    634 
Baucher  v.  Stewart,  653 
Baugh  v.  Price,   194 
Baum  v.  Ihibois,  210,  213 
Baumeister  v.  De  Muth,  826,  879 
Baumeister  v.  Silver,  812 
Baxter  v.  Aubrey,  646,  819 
Baxter  v.  Bradbury,   272,    292,     684, 

585 

Baxter  v.  -Camp,  160 
Baxter  v.  Howell,  61 
Baxter  v.  Lewis,  209 
Baxter  v.  Ryerss,  415 
Baylies  v.  Stinson,  777,  782,  783 
Baynes  v.  Bernhard,  213 
Baze  v.  Arper,  72 
Beach  v.  Hud.  R.  L.  Co.,  852,  908 
Beach  v.  Miller,  330 
Beach  v.  Xordman,  397,  459,  460 
Beach  v.  Packard,  405 
Beach  v.  Waddell,  485,  507,  696 
Beal  v.  Beal,  589 
Beale  v.  Seively,   500.  934 
Beall  v.  Davenport,  549,  601 
Beall  v.  Taylor,  375 
Beaman  v.  Simmons,  628 
Beaman  T.  Whitney,  61 
Beams  v.  Mila,  840 
Bean  v.  Herrick,  253 
Bean  v.  Mayo,  312,  339 
Bear  v.  Fletcher,  811 
Bearce  v.  Jackson,  272 
Beard  v.  Delaney,  243,  245.  490,  690 
Beardslee  v.  Underbill,  792,  836 
BeardHley  v.  Knight,  279,  413,  414 
Beawley'v.  Phillips.  363.  410,  439 
Beauchamp  v.  Handler,   898 
Beauchamp  v.  Winn,  *960 
Beauman  v.  Whitney,  48 
Beaumont  v.  Yeatman,   63 
Beaupland  v.  McKeen,  448,  723,  724, 

726 

Beck  v.  Bridgman,  633 
Beck  v.  Simmons,  196,  206,  601,  753, 

(195 

Beck  v.  Staatu,  228.  890 
Beck  v.  I'lrich,  712 
Becker  v.  Krirxon.    794 
Beckman  v.  Henn,  294 
Beckman  v.  Park,  892 
Berkwith  v.  Knuns,   807 


TABLE   OF   CASKS 


XXV 


(REFERENCES  ABE  TO  PAGES] 


Bedell  v.  Christy,  399 
Bedell  v.  Smith,   17,  212,  386 
Beddoe  v.  Wadsworth,  280,  380,  409, 

414,  421 
Beebe  v.  Swartwout,    278,    385,     398, 

497,  600,  737,  687,  695 
Beech  v.  Steele,  37 
Beecher  v.  Baldwin,  432 
Beeler  v.  Sims,  795,  810 
Beer  v.  Leonard,  774 
Beeson  v.  Beeson,  141 
Beetem  v.  Follmer,   228 
Begen  v.  Pettus,    887,   894 
Behr  v.  Hurwitz,  21,  203 
Beidelman  v.  Foulk,  727 
Beioley  v.  Carter,   776,   777 
Belcher  v.  Weaver,   70,   74 
Belden  v.  Seymour,  160,  161,  437 
Bell  v.  Adams,  575 
Bell  v.  Duncan,   180 
Bell  v.  Flaherty,   124 
Bell  v.  Higgins,  386 
Bell  v.  Holtby,  777 
Bell  v.  Kennedy,  213 
Bell  v.  Stadler,  638 
Bell  v.  Sternberg,   898 
Bell  v.  Thompson,  494,  545 
Bell  v.  Twilight,  593,  596 
Bell  v.  Vance,  199 
Bell  v.  Woodward,   54 
Bellamy  v.  Ragsdale,  236,  671 
Bellefont  Iron  Wks.  v.  McGuire,  483 
Bellinger  v.  Society,  383 
Bellows  v.  Oheek,  464,  656,  657 
Bellows  v.  Litchfield,    415,   453 
Belmont  v.  Coman,  305 
Belmont  v.  O'Brien,  845,  866 
Bemis  v.  Bridgman,  706 
Bemis  v.  Smith,    404 
Bender  v.  Fromberger,  282,  289,  297, 

366,  385,  429,  450 
Benedict  v.  Oilman,  237 
Benedict  v.  Hunt,   741 
Benedict  v.  Williams,   892 
Benjamin  v.  Hobbs,  757 
Bennet  Col.  v.  Gary,  520 
Bennett  v.  Abrams,   491,   524 
Bennett  v.  Adams,  524 
Bennett  v.  Bittle,  382 
Bennett  v.  Booth,  334 
Bennett  v.  Caldwell,  143 
Bennett  v.  Fuller,   11 
Bennett  v.  Jenkins,    289,     345,     451, 

453 

Bennett  v.  Keehn,  368 
Bennett  v.  Latham,  364,   451 
Bennett  v.  Pierce,  930,  931.  936,  937 
Ben-nett  v.  U.  S.  Land  Co.,  678 
Bennett  v.  Waller,  477,  478,  086,  592 


Bennett  v.  Womack,  150 

Bennett's  Case,  478 

Benningfield  v.  Reed,  96 

Bensel  v.  Gray,    136,  550 

Bensinger  v.  Erhardt,  49 

Benson  v.  Coleman,  657 

Benson  v.  Cromwell,    200 

Benson  v.  Markel,  610,  956 

Benson  v.  Shotwell,    548,    681,     788, 

810,  835 

Benson  v.  Yellott,  94 
Bentley  v.   Craven,   797,   800 
Bentley  v.  Long,  141 
Benton  v.  Sentell,  562 
Bergen  v.  Eby,  614 
Berger  v.  Crist,  651 
Bergmann  v.  Klein,  868,  870 
Bernardy  v.  Mortgage  Co.,  577,  588 
Berrian  v.   Rogers,    121 
Berry  v.   Armstead,   940 
Berry  v.   Billings,  47 
Berry  v.  Lowell,  621 
Berry  v.  Van  Winkle,  531 
Berry  v.  Walker,  553 
Berry  v.  Webb,  607 
Berryman  v.  Schumaker,  855 
Bertram  v.  Curtis,  326 
Bess-Mar  R.  E.  Co.  v.  Capell,  812 
Bethell  v.  Bethell,  149,  264,  268,  287, 

288,  483,  581,  706. 
Bethell  v.  MeKinney,  540 
Bethune  v.   McDonald,  516 
Betts  v.  Union  Bank,  437 
Bever  v.  North,   395,   401,   405,   461, 

714 

Beverly  v.  Lawson,  534,  900 
Bevins  v.  Vansant,  580 
Beyer    v.    Braender,   646 
Beyer  v.  Schulze,  403,  406 
Bianconi  v.  Smith,  269 
Bibb  v.  Coal  &  Iron  Co.,  549 
Bibb  v.   Prather,   681 
Bibb  v.  Wilson,  546 
Bickford  v.  Page,  272,  280,  352,  415 
Biddey  v.  Biddle,  116 
Bicknell  v.  Corn-stock,  805 
Big  Bend   L.    Co.   v.   Hutchings,  49, 

417 

Bierer  v.  Fretz,  232 
Bigelow  v.  Hubbard,  322 
Bigelow  v.  Jones-,  389 
Bigler  v.  Morgan,  49,  77,  157,  233 
Billick  v.  Davenport,  770 
Binford's  Appeal,  82,  822 
Bingham  v.  Bingham,  303,  348,  955, 

957 
Bingham  v.   Maxey,   113 


XXVI 


TABLE   OF   CASES 


[REFERENCES  ARC  TU  PAGES] 


Bingham  v.  Weiderwax,  436 

Binzer  v.  Epstein,  846 

Birch  v.  Cooper,  802 

Bircher  v.  Watkins,  292,  294,  297 

Bird  v.  Cross,  503 

Bird  v.  Smith,  81 

Birdsall  v.  Walton,  527 

Birkett  v.  De  Van*,  325) 

Birney  v.  1 1  aim.  415,  423 

Bishop  v.  O'Connor,  81,  91,  117,  140, 

144 
Bitner  v.  Brough,  223,  226,  233,  239, 

539 

Bitzer  v.  Orban,  759,  761 
Bixby  v.  Smith,  824 
Black  v.  Aiuaii.  834 
Black  v.  Barto,  475 
Black  v.  Barton,  365 
Black  v.  Coan,  340 
Black  v.  Croft,  652 
Black  v.  Dressel,  120 
Black  v.  Grant,  54 
Black  v.  Gregg,  61 
Black  v.  Intejnafl   Corp'n,   641,  801 
Black  v.  Stone,   604 
Black  v.  Walker,  657 
Blackhurn  v.  Randolph,  619 
Blackburn  v.  Smith,    166,  675 
Black    Hills,   N.    B.  v.  Kellogg,    502, 

894 

Blackie  v.  Hudson,  312 
Blacklow  v.  Laws,  168 
Blackmore  v.  Shelby,  584,  585,  889 
Blackshire  v.  Homestead    Co.,   295 
Blackwell  v.  Atkinson,    409 
Blackwell  v.  Harrelson,  595 
Blackwell  v.  Lawrence  Co.,  226,   229 
Blair  v.  Claxton.  506 
Blair  v.  Perry,    505 
Blair  v.  Rankin,  916 
Blake  v.  Kverett,  323 
Blake  v.  O'Neal,  563 
Blake  v.  Fhinn,  30,  911 
Make  v.  Tucker.  5,  10,  004 
Blakemore  v.  Kimmona,  845 
Blakenlee  v.  Ins.   Co.,   586 
Blanchard  v.  Blanchard,     322,     367, 

390,  392,  445,  596 
Rlanchard  v.  Brooks.  367 
Blanchard  v.   Klli-.  581 
Blanchard  v.  Hazeltine,  371 
Blanchard  v.  Hoxie,  289,  207,  471 
Mlanchard  v.  Stone,   202 
Blanck  v.  Sadlier,  794,  858 
Bland  v.  Bowie,    143 
Bland  v.  Thomas,  473 
Blanks  v.  Ripley.   511 
Blanks  v.  Walker,  684 
Blann  v.  Smith,  213 


Blanton  v.  Ky.  Dist.  Co.,  85,  218 

Blasser  v.  Moats,  483 

Bledsoe  v.  Doe,  46 

Bledsoe  v.  Little,  53 

Bletz  v.  Willis,  482 

Blevins  v.  Smith,  322 

Blied  v.  Barnard,  896 

Bliss  v.  Negus,  713 

Blivis  v.  Franklin  Inv.  Co.,  318,  856 

Blodgett  v.  Hitt,  141,  556 

Bkmdeau  v.  Sheridan,  277,  326,  335, 

391 

Bloom  v.  Welsh,  125 
Bloom  v.  \Volf,  160,  431 
Blossom  v.  Knox,  425 
Blossom  v.  Van  Court,  312 
Blue-Grass  Realty  Co.  v.  vShelton,  76 
Blumenfeld  v.  St'ine,  240,  262 
Blydenburgh  v.  Cotheal,  280,  385,  409 
Boar  v.  McCormick,  730 
Board  of  Commrs.  v.  Younger,  250 
Board  of  Ed.  v.  Reilly,  842 
Boardman  v.  Taylor,  621 
Boas  v.  Farrington,  25,  168,  170 
Boatman  v.  Wood,  425 
Bobb  v.  Barnum,  50 
Bodcaw   Lumber   Co.  v.   White,  774, 

801 

Bodine  v.  Taylor,  791 
Bodley  v.   Bodley,  740 
Bodley  v.  Botfley,  740 
Bodley  v.  McChord,  37,  671 
Boehm  v.  Wood,  879 
Bogan  v.  Baughdrill,  533 
Bogart  v.   Burkhalter,  718 
Boger  v.  Bell,  215,  218 
Boggess  v.  Robinson.  156 
Boggs  v.  Bodkin,  808 
Boggs  v.  Hargrave,  87,  88.  90 
Bogy  v.  Shoab,  686,  088,  596 
Bohanan  v.  Bohanan,  607 
Bnhlcke  v.  Buchanan,  309 
Bohon  v.  Bohon,  595 
Bohm  v.  Fay,  806 
Boice  v.  Coffeen,  340.  343,  426 
Boiler  Co.  v.  Gordon,  792 
Bolen  v.  Lilly,  673 
Bolgiano  v.  Cook,  80,  94 
Bolinger  v.   Brake.  275,  292 
Bollenbachcr  v.   Lee.  462 
Bollis  v.  Beach,  564 
Boiling  v.  Jones,  113,  114 
Boiling  v.  Teel.  68 
Bologniano  v.   Shot  land.  804 
Bolton  v.   Branch.   168,  646 
Bolton  v.  .Schtwl  Board.  805 
Bond  v.  Montague.  549 
Bond  v.  Ramsey.  110.  263.  265,  041 
Bonhara  v.  Walton,  259.  884 


TABLE  OF   CASES 


XXV11 


[REFERENCES  ARE  TO  PAGES] 


Bonner  v.  Johnston,  527 

Bonner  v.  Lessly,  137 

Booher  v.  Goldsborough,  264 

Booker  v.  Bell,  356,  389,  425,  468 

B'ooker  v.  Meriweather,  468,  484 

Bool  v.  Mix,  275 

Boon  v.  McHenry,  283,  292 

Boone  v.  Armstrong,  571 

Boone  v.  Chiles,  187 

Boone  v.  Templeman,  667 

Boorum  v.  Tucker,  84 

Booth  v.  Cook,  72 

Booth  v.  Millikin,  216 

Booth  v.  Ryan,  202,  691 

Booth  v.  Saffold,  212,  670 

Booth  v.  Starr,  395,  416,  418 

Booth  v.  Wyatt,  3:10 

Boothby  v.  Hathaway,  272,  295 

Boothby  v.  Waller,  527 

Boothroyd  v.  Engles,  63 

Bordeaux  v.  Carr,  516 

Borden  v.  Borden,  860 

Bordewell  v.  Colie,  403 

Boreel  v.  Lawton,  300,  387,  391 

Born  v.  Castle,  788 

Boro  v.  Harris,  124 

Bostick  v.  Winton,  123 

Boston  v.   Binney,  503 

Boston  Steamboat  Co.  v.  Manson,  383 

Bostwick  v.  Beach,  533 

Bostwick  v.  Lewis,  747,  719 

Bostwick  v.  Williams,  322,  360,  385 

Boswell  v.  Buchanan,  592 

Boswell  v.  Mendheim,  778 

Botsford  v.  McLean,  614 

Botsford  v.  Wilson,  705 

Bott  v.  Maloy,  817 

Botto  v.  Berges,  43 

Bottorf  v.  Smith,  275,  287,  488 

Bouldin  v.  Wood,  607 

Bourg  v.  Niles,  852 

Bours  v.  Zachariah,  75 

Bowden  v.  Achor,  747 

Bowen  v.  Jackson,  213 

Bowen  v.  Mandeville,  14,  747 

Bowen  v.  Thrall,   149,  508,  510 

Bower  v.  Cooper,  22 

Bowers  v.  Real  Est.  Co.,  315 

Bowers  v.  Chaney,   94 

Bowery  N.  B.  v.  Mayor,  792 

Bowersock  v.  Beers,  218,  873 

Bowie  v,  Brahe,  914 

Bowles  v.  Stewart,  250 

Bowley  v.  Holway,  501,  502,  508 

Bowlin  v.  Pollock,  946 

Bowling  v.  Benge,  3.73 

Bowman  v.  Wittig,   55 

Bowne  v.  Potter,  600 

Bowne  v.  Wolcott,  299,  358 


Boyce  v.  Grundy,  749,  751,  912 

Boyce  v.  McCullogh,  621,   630 

Boyd  v.  Bartlett,  312,  397 

Boyd  v.  Boley,  790 

Boyd  v.  Hallowell,  791 

Boyd  v.  Hazeltine,  371 

Boyd  v.  Hoffman,  218,  642,  850 

Boyd  v.  McCullough,  727 

Boyd  v.  Schlessinger,    13*6 

Boyd  v.  Whitfield,  346 

Boyd  v.  Woodbury  Co.,  790 

Boyer  v.  Amet,  204,  550,  736 

Boyer  v.  Porter,  926 

Boykin  v.  Cook,    132 

Boykin  v.  Rain,  70 

Boylan  v.  Townley,  785 

Boylan  v.  Wilson,  836 

Boyle  v.  Edwards,   469 

Boyle  v.  Rowand,  904 

Boyles  v.  Bee,   39 

Boyman  v.  Gutch,  783 

Brackenridge  v.  Dawson,    103,   158 

Brader  v.  Zbranek,  462,   940 

Bradford  v.  Bradford,  609 

Bradford  v.  Dawson,  74 

Bradford  v.  Potts,  206,  729,  725 

Bradley  v.  Chase,  267 

Bradley  v.  Dibrell,  391,   734,  939 

Bradley  v.  Dike,  315 

Bradley  v.  Munton,   5&2 

Bradshaw  v.  Atkins,  619,   6,25 

Bradshaw  v.  Crosby,  343 

Bradshaw's  Case,  294 

Bradway  v.  Miller,     795,     810,     833, 

836 

Brady  v.  Bank  of  Com.,  498,  534,767 
Brady  v.  Peck,   471 
Brady  v.  Spurck,  272.  275,  281,  305, 

468 

Bragg  v.  Chilcote,   165,   195,  897 
Braman  v.  Bingham,   343 
Branch  v.  Hough,   313 
Brand  v.  Odom,  739 
Brandt  v.  Foster,  272,  275,  289,  400. 

424,  425,  445,  505,  506,  706 
Branger  v.  Manciet,  380 
Branham  v.  San   Jose,   142 
Brannum  v.   Ellison,  661,  678 
Brant  v.  Clifford,   841 
Brantley    Co.  v.  Johnson,    482 
Brantley  v.  Kee,   56 
Brass  v.  Vandecar,  320,  335,  349 
Brassfield  v.  Walker,  814 
Brashier  v.  Gratz,  886 
Bratton  v.  Guy,  287 
Braun  v.  Vollmer,   817 
Brawley  v.  Copelin,  403,  446,  459 
Breckenridge  v.  Hoke,  904 
Breckenridge  v.  Waters.    707,   709 


XXV111 


TABLE  OF  CASES 


[REFERENCES  ABB  TO  PAGES] 


Bree  v.  Holbcch,  705,  706 

Breen  v.  Morehead,  585,  587.  593 

Breithaupt  v.  Thurmond,  20,  296 

Brennan  v.  Curtis,  939 

Brereton  v.  Barry,  194 

Brett  v.  Marsh,  554 

Brewer  v.  Fox,  168 

Brewer  v.  Herbert,  850 

Brewer  v.  Parker,  482 

Brewer  v.  Wall,  542 

Brewton  v.  Smith,  609 

Brick  v.  Center,  691,  725 

Bricker  v.  Bricker,  3O7,  405 

Bridge  v.  Wellington,   53 

Bridge  v.  Young,  219 

Briegel  v.  Moehler,  607 

Briegel  v.  Muler,  621 

Brigga  v.  Gillam,  196 

Briggs  v.  Morse,  339 

Brigham  v.  Evans,  228,  232 

Bright  v.  Boyd,  143,  237 

Brinckerhoff  v.  Phelps,  222,  241 

Brink  v.  Mitchell,  39 

Brisbane  v.  McCrady,  336 

Brisbane  v.  Sullivan,  21,  534 

Briscoe  v.  Mining  Co.,  481 

Hristor  v.  McBean,  341 

British-Am.  Mtge.  v.  Todd,  451 

Britt  v.  Marks,  268 

Brittain  v.  McLain,    657,   659 

Britton  v.  Hemingway,    563 

Britton  v.  Ruffin,  401 

Brizzolara  v.  Mosher,  524 

Broadbelt  v.  Loew,  870 

Broadway  v.  Buxton,  364,  606 

Broadway  v.  Sidway,  671 

Broadwell  v.  Phillips,  562 

Brobst  v.  Brock,  141 

Brock  v.  Hidy,  215 

Brock  v.  O'Dell,  609,  957 

Brock  v.  South-wick,  512 

Brockenbrough  v.  Blythe,  904,  906 

Brodie  r.  Mortgage  Co.,  310,  325 

Brodie  v.  WatkinH,  506 

Brody  &  Co.  v.  Hochstadter,  645,  826 

Brokaw  v.  Duffy,  843 

Bronk  v.  MrMalion,  837 

Bronaon  v.  Coffin,  159,  310,  324,  349 

Brooke  v.  Clarke,  900 

Brooklyn  v.  Brooklyn    City    R.    Co., 

792 
Brooklyn    Park    Com.  v.  Armstrong, 

7:.7.   M;( 

Brookman  v.  Kurzman,  836 
Brooks  v.  Black.  436,  454,  459 
Brook*  v.  Chaplin,  60 
Brooks  v.   Mohl,  288,  387,  439,  458 


Brooks  v.  Moody,  312,  339,  343,  508. 

923 

Brooks  v.  Riding,  264,  952 
Brooks  v.  Winkles,  462 
Brown  v.  Allen,  388,  399 
Brown  v.  Bank,  309 
Brown  v.  Bellows,  43,  295,  860 
Brown  v.  Blake,  581 
Brown  v.    Brodhead,  339 
Brown  v.  Brown,   141 
Brown  v.  Cannon,  36,  807,   812,  813 
Brown  v.  Carpenter,  275,  289 
Brown  v.  Christie,  134,  138 
Brown  v.  Combs,  131 
Brown  v.  Connell,  555 
Brown  v.  Cor  son,  399 
Brown  v.  Covilland,  35,  36 
Brown  v.  Dickinson,  402,  404,  425 
Brown  v.  Eaton,  215 
Brown  v.  Farrar,  72 
Brown  v.  Feagin,  474 
Brown  v.  Frost,  87 
Brown  v.  Gammon,  37 
Brown  v.  Gordon,    741 
Brown  v.  Haff,  788,  878,  880 
Brown  v.  Harrison,  638 
Brown  v.  Hearon,  451,  464 
Brown  v.  Herrick,  267 
Brown  v.  Jackson,  596 
Brown  .v.  Lee,  216 
Brown  v.  Lunt,  63 
Brown  v.  Manning,  252 
Brown  v.  Manter,  52,  574,  575 
Brown  v.  McCormick,  577 
Brown  v.  MoMullen,  465 
Brown  v.  Met*,  409 
Brown  v.  Montgomery,  252,  691 
Brown  v.  Moore,  61 
Brown  v.  Morehead,  714,  717 
Brown  v.  Phillips,  572 
Brown  v.  Pinniger,  198 
Brown  v.  Reeves,  737 
Brown  v.  Reichling,   628,  834 
Brown  v.  Rice,  261 
Brown  v.  Staples,  307,  413,  414,  419, 

422,  564,  568,  570,  571 
Brown  v.  Starke,  37 
Brown  v.  Taylor,   391,    465.   466 
Brown  v.  Thompson,  404,  439,  601 
Brown  v.  Wallace,  81 
Brown  v.  Witter,  633,  770,  836 
Brown  v.  Yocum,  363 
Browning  v.  Canal   Co.,   408 
Browning  v.  Clymer,  209 
Browning  v.  Kstes,  673 
Browning  v.  Stillwell,  450 
I'.i -.wiling.  In  re,  82,  138 
Browning  v.  Wright,    152,    156,    366 
Broylea  v.  Bell,  753 


TABLE   OF   CASES 


XXIX 


[REFERENCES  ARE  TO  PAGES] 


Bruce  v.  Luke,  592 

Bruce  v.  Wolfe,  810 

Bruegger  v.  Carter,  861 

Brugman  v.  Charleson,  49 

Bruington  v.  Barber,   405 

Brumfield  v.  Palmer,  671,  755 

Brumfit  v.  Morton,  32 

Brummel  v.  Hunt,   128 

Bruner  v.  Diamond,  77 

Bruner  v.  Meigs,   751,   843 

Bruns  v.  Schreiber,  330,  352 

Brush  v.  Ware,   177 

Brya  v.  Thomas,  882 

Bryan  v.  Boothe,  239 

Bryan  v.  Johnson,   512 

Bryan  v.  Lewis,  520 

Bryan  v.  Osborne,  203,  805 

Bryan  v.  Ramirez,   66 

Bryan  v.  Read, '84,  828,  911,  915 

Bryan  v.  Salyard,  555 

Bryan  v.  Swain,  48'9,  510 

Bryant  v.  Booth,  262,   760,  940 

Bryant  v.  Fairfield,    131 

Bryant  v.  Hambrick,   227 

Bryant,  In  re,  872,  890 

Bryant  v.  Mosher,  282 

Bryant  v.  Wilson,   155 

Bryson  v.  Crawford,  634 

Buchan  v.  Land   Co.,  772 

Buchanan  v.  Alwell,  637,  696,  902 

Buchanan  v.  Burnett,  256,   260,   261, 

265,  940 
Buchanan  v.  Lorman,  213,  215,  640, 

759,  761 

Buchanan  v.  Yudelson,   874 
Buck  v.  McCaugMry,  913 
Buck  v.  Waddle,  648 
Buckel  v.  Auer,   593 
Buckles  v.  Mouzon,  461 
Buckhouse  v.  Crosby,    630 
Buckingham  v.  Thompson,  679 
Buckle  v.  Mitchell,  778 
Bucklen  v.  Raster lik,  72,  218,  806 
Buckles  v.  Northern    Bank    of    Ky., 

482 

Buckley  v.  Dawson,  225 
Buckmaster  v.  Grundy,   14,  220,  227 
Buckner  v.  Street,  303,  304,  370,  706 
Buell  v.  Tate,  482,  498,  508,  690,  928 
Buffalo  Coal  Co.  v.  Vance,  678 
Buford  v.  Adair,  565 
Buford  v.  Guthrie,  695,  889 
Bugajski  v.  iSikwa,  228,  238 
Building  Co.  v.  Fray,  277,  292,  477, 

584 

Bulkley  v.  Hope,   29 
Bull  v.  Beiseker,  282 
Bull  v.  Burton,  323,  326,  853,  854 
Bull  v.  Weisbrod,   149 


Bull  v.  Willard,  714 

Bullard  v.  Bicknell,  801 

Bullard  v.  Perry,    72 

Bullitt  v,  Coryell,  313 

Bullitt  v.  E.  Ky.  Land  Co.,  681 

Bullitt  v.  Songster,   659 

Bullock  v.  Adams,  529 

Bullock  v.  Beemis,   750 

Bullock  v.  Whipp,   621,  623 

Bulow  v.  Witte,  95 

Bumiberger  v.  Clippinger,  843 

Bumnier  v.  Boston,   383 

Bumpass  v.  Anderson,  368 

Bumpass  v.  Platner,   485,    516,     694, 

934 

Bumstead  v.  Cook,  318 
Bunch  v.  Johnson,   593 
Bundy  v.  Ridenour,   340 
Burbank  v.  Pillsbury,   324 
Burbridge  v.  Sadler,  363 
Burchard  v.  Hubbard,   570 
Burchfield  v.  Brinkman,  456 
Burk  v.  Brown,  303 
Burk  v.  Hill,  330,   332,   336 
Burk  v.  Serrill,  228,  239,  243,  539 
Burk's  Appeal,  539 
Burke  v.  Beveridge,    578,    584 
Burke  v.  Davies,   637,   667,    891,   892 
Burke  v.  Elliott,   103,   105,   106 
Burke  v.  Gummey,  41 
Burke  v.  Johnson,  555 
Burke  v.  iXichols,  365 
Burke  v.  Ryan,  844 
Burke  v.  Schreiber,   637 
Burke  v.  Tim'ber   Co.,   380,  424 
Burke  v.  Trabue,    330 
Burkett  v.  Mumford,   695 
Burkett  v.  Twyman,  562 
Burkholder  v.  Farmers'  Bank,  446 
Burley  v.  Shinn,  646 
Buriock  v.  Peck,  326 
Burnell  v.  Firth,  774 
Burnett  v.  Hamill,  94 
Burnett  v.  McCluey,   58 
Burnett  v.  Sulflow,  642 
Burnett  v.  Wheeler,   32,    197 
Burnham  v.  Laselle,  283 
Burns  v.  Hamilton,   113,  114,  954 
Burns  v.  Ledbetter,   132,   141 
Burns  v.  Vereen,  397 
Burns  v.  Witter,  21 
Burr  v.  Greely,  388 
Burr  v.  Hutchinson,  620 
Burr  v.  Lamaster,    326 
Burr  v.  Todd,  245,  479,  899 
Burr  ill  v.  Jones,  161 
Burroughs  v.  McNeill,  559 
Burroughs  v.  Oakley,   197,   198,   818 
Burrow  v.  Scammel,   531,   532 


XXX 


TABLE  OF  CASES 


[REFERENCES  ARE  TO  FACES] 


Burrows  v.  Harter,  675 

Burrows  v.  Locke,  250,  256 

Burrows  v.  Stryker,  483 

Burrows  v.  Yount,  217 

Burruss  v.  Wilkinson.  403 

Bur-ton  v.  Jackson,  590 

Burt  v.  Wilson,  609 

Burtners  v.  Keran,   562,  575 

Burton  v.  Cowles,  364 

Burton  v.  Perry,  816 

Burton   v.   Reed,   425,  452,   581,   584 

Burwell  v.  Brown,  32 

Burwell  v.  Jackson,  20,  22,  38,  257, 

261,  267,  782,  947 
Burwell  v.  Sollock,   879,  912 
Busby  v.  Treadwell,    206,     481,    923, 

933 

Bush  v.  Adams,  439 
Bush  v.  Bush,  607,  622 
Bush  v.  Cole,  241 
Bush  v.  Collins,  555 
Bush  v.  Cooper.  376,  524,  590 
Bush  v.  Hicks,  616,  620 
Bush  v.  Marshall,  878 
Bushong  v.  .Scrimshire,  655 
Bustard  v.  Gates,  96 
Buswell  v.  Kerr  Co.,  49,  774 
Butcher  v.  Peterson,    425,   445,     534, 

952 

Butcher  v.  Rogers,  586,  592 
Butler  v.  Barnes,  409,  433,  454 
Butler  v.  Gale,  329,  332 
Butler  v.  Miller,  706,  707,  949 
Butler  v.  O'Hear,  863 
Butler  v.  Seward,   157,   572 
Butte  v.  Riffe,    328,     359,   408,    483, 

730 

Butte  Creek,  etc.,  Co.  v.  Olney,  447 
Butterfield  v.  Harris,  883 
Butterfield  v.  Copper   Co.,  601 
Butterfield  v.  Heath,  772,  802 
Butterworth  v.  Volkenning,  382 
Buttron  v.  TiM.itt-.    146 
Butts  v.  Andrews,   786,  840 
Byers  v.  Aiken.  209.  220 
Bynes  v.  Rich,  280.  289,  290 
Bui i irn  v.  Govan,   132 


CabeH  v.  Grubba,  66 
Cable  v.  Hoffman.    752 
Cabrera  v.  Payne.  21,  25,  215 
Cadiz  v.  Majors,  592 
Cadmus  v.  Pagan,   312,  318 
Cadwalader  v.  Tryon,   164 
Cady  v.  Gale.  533 
Oain  v.  Outline,  755 
Cain  v.  Woodward,  133 
Cake  v.  Peet,  616 


Calcraft  v.  Roebuck,  191,  196,  907 

Calder  v.  Chapman,  57? 

Calder  v.  Jenkins,  834,  855 

Caldwell  v.  Bower,  403 

Caldwell  v.  Kirkpatrick,    358,   385 

Calhoun  v.  Belden,    757,  796 

Cal.  Real  Est.  Co.  v.  Walkup,  219 

Calkins  v.  Williams,  550 

CaManan  v.  Keenan,  361 

Calton  v.  Lewis,  950 

Calumet,  etc.,  Canal  Co.  v.  Russell, 

73 

Calvert  v.  Ash,  99 
Calvert  v.  Sebright,  470 
Cambrelleng  v.  Purton,   770,   816 
Cameron  v.  Logan,   127 
CamfieM  v.  Gilbert,  12,  14,  233,  645, 

774,  781,  783,  791 
Camp  v.  Morse,   221,   647,   604,   668, 

891 

Camp  v.  Pulver,  741 
Campbell  v.  Bentley,  426 
Campbell  v.  Brown,   117,  119 
Campbell  v.  Carter,  952 
Campbell  v.  Cronley,  534 
Campbell  v.  Fleming,  193,  202 
Campbell  v.  Harsh,   794 
Campbell  v.  Haven,  318 
Campbell  v.  Johnson,  608 
Campbell  v.  McCahan,  84,  107 
Campbell  v.  McClurc,  650 
Campbell  v.  Lowe,   125,    141 
Campbell  v.  Mcdbury,  486 
Campbell  v.  Pruyn,  214 
Campbell  v.  Shaw,  234.  446 
Campbell  v.  Shields,  382 
Campbell  v.  Shrum,  41,  653 
Campbell  v.  Spears,  738 
Campbell  v.  Watkins.  366 
Campbell  v.   Whittinghara,  250,  259, 

261,  267 

Cannday  V.  Miller,  792 
Candler  v.  Lunsford,  590 
Cnnedy  v.  Marry,  609,  611,  617 
Canton  Co.  v.  B*.  &  O.  R.  Co.,  198,  203 
Cnntrcll  v.  Mobb,  646.  684.  936 
Capehart  v.  Dowery,  82.  94 
Capital  Bank  v.  Hiintoon,  134,  135 
Cap.   City    Inv'mt   Co.   v.    Burnham, 

326 

Caporale  v.  Rubine,  891 
Cap-tick  v.  Crane,  535 
Carbrey  v.  Willis,  324 
Carey  v.  Daniels,  325 
Carey  v.  Guillow.  496 
Carev  v.  Gundlefinger,  315,  649 
Carlisle  v.  Carlisle,  71 
Carlton  v.  Smith,  853 
Carman  v.  Bedell,  826 


TABLE   OF   CASES 


XXXI 


[REFERENCES  ARE  TO  PAGES] 


Carnahan  v.  Hall,  724 

Carne  v.  Mitchell,  560 

Uarneal  v.  Lynch,  83 

Carnes  v.  Swift,  562 

Carney  v.  Newberry,  627,  667 

Carpenter  v.  Bailey,  38 

Carpenter  v.  Brown,  168,  221,  877 

Carpenter  v.  Carpenter,  462 

Carpenter  v.  Holcomb,   19 

Carpenter  v.  Lockhart,  213,  246 

Carpenter  v.  Schemerhorn,   588 

Carpenter  v.  Stilwell,  134 

Carpenter  v.  Strother,   87 

Carpenter  v.  Thompson,  570 

Carper  v.  Munger,  625 

Carr  v.  Callahan,  252 

Carr  v.  Dooley,  312,  314 

Carr  v.  Roach,   168,  718 

Carrabine  v.  Cox,  884 

Carrico  v.  Froman,  6:61 

Carrodus  v.  Sharp,  904 

Carroll  v.  Carroll,  423 

Carroll  v.  McKahary,  770 

Carroll  v.  Mundy,  879,  882 

Carroll  v.  Trust  Co.  854 

Carson  v.  Carson,  570 

Carson  v.  Kelly,  512 

Carter  v.  Beck  15,  507 

Carter  v.  Carter,  516 

Carter  v.  Chandron,  74 

Carter  v.  Denman,  281,  322,  409 

Carter  v.  Fox,  627,  639 

Carter  v.  Morris,  825 

Carter  v.  Morris  B.  &  L.  Asso.,  800, 

825 

Cartwright  v.  Briggs,  482,  929 
Cartwright  v.  Culver,  690 
Carver  v.  Howard,  141 
Carver  v.  Jackson,  587 
Carver  v.  LaSalette,  622 
Carver  v.  Louthain,  303 
Carvill  v.  Jacks,  249,  429 
Gary  v.  Gundlefinger,  315,  649 
Cassada  v.  Slralbel,  390 
Case  v.  Boughton,  742 
Case  v.  Stipes,  574 
Case  v.  Wolcott,  224 
Casey  v.  Lucas,  483,  69'5 
Cash  v.  Meisenheimer,  213 
Cashman  v.  Bean,  534,  857 
Cashon  v.  Faina,  81 
Cass  Co.  v.  Oldham,  623 
Cassell  v.  Cooke,  842,  862,  886 
Cassidy's   Succession,   431 
Castlefeerg  v.  Maynard,  844 
Caswell  v.  Black 'River  Mfg.  Co.,  196 

199,  201 

Caswell  v.  Wendell,  289 
Cater  v.  Pembroke,  259 
Gates  v.  Field,  459,  468 


Cathcart  v.  Bowman,  311,  319,  332 
Cathcart  v.  Sugenheimer,  142 
C'atlin  v.  Hurlburt,  271,  284,  289 
Cattell  v.  Corrall,  21,  774,  778 
Gaulkins  v.  Harris,  451 
Causton  v.  Macklew,  778,  805 
Cavanaugh  v.  Casselman,  491 
Cavanaugh  v.  McLaughlin,  856 
Ceconni  v.  Rodden,  392,  433 
Celestial  Realty  Co.  v.  Childs,  871 
Cent.  App.  Co.  v.  Buchanan,  275,  378 
Cerf  v.  Diemer,  815 
Chabot  v.  Winter  Park  Res.  Co.,  528 
Chace  v.  Gregg,  568 
Chace  v.  Hinman,  301 
Chamberlain  v.  Amter,  648 
Chamberlain  v.  Lee,  88'5,  890 
Chamberlain  v.  McClurg,    567 
Chamberlain  v.  Meeder,   571,   590 
Chamberlain  v.  Preble,  463,  464 
Chambers  v.  Cochran,  127,  129 
Chambers  v.  Cox,  483 
Chambers  v.  Jones,   143 
Chambers,  v.  Pleak,  404 
Chambers  v.  Smith,  287,  398 
Chambers  v.  Tulane,  753,  843,  850 
Champion  v.  Brown,  521 
Champlin  v.  Dotson,  549,  929 
Champlin  v.  Layton,  262,  956,  957 
Champlin  v.  Williams,  555 
Chandler  v.  Brown,   393,   397 
Chandler  v.  Spear,  64 
Chapel  v.  Bull,  345 
Chaplain  v.  Southgate,  3831 
Chaplin  v.  Briscoe,  488 
Chapman  v.  Brooklyn,   126i 
Chapman  v.  Fxidy,  663 
Chapman  v.  Holmes,  281,  356,  408 
Chapman  v.  Kimball,  281,  310' 
Chapman  v.  Lee,   168,   170,  220,  808, 

811 

Charbonier  v.  Arbona,  650 
Charles  v.  Dana,  639 
Charleston  v.  Blohme,  82,  86,  88,  91, 

865 

Charman  v.  Tatum,  351 
Chartier  v.  Marshall,  244,  521 
Chase  v.  Chase,  831 
Chase  v.  Palmer,  46 
Chase  v.  Peck,  682 
Chase  v.  Weston,  413 
Chastain  v.  Staley,  155 
Chatfield  v.  Williams,  664 
Chatham  v.  Lonsford,  565 
Chauncey  v.  Leominster,  848 
Chauvin  v.  Wagner,  68,  283,  287,  478, 

565,  586 

Chaves  v.  Bergere,  678 
Cheesman  v.  Thome,  804,  907 
Cheever  v.  Minton,  94 


XXXI 1 


TABLE   OF  CASES 


[REFERENCES  ARE  TO  PAGES] 


Chenault  v.  Thomas,  387,  461,  472 

Cheney  v.  Straube,  387,  400,  426,  471 

Cherry  v.  Cherry,  594 

Cherry  v.  Davis,  670,  674,  810 

Chesman  v.  Cummings,  786 

Chester  v.  Rumsey,  73 

Chew  v.  Tome,  805,  815,  848 

Chesterfield  v.  Jansen,  193 

Chicago  v.  Rollins,  465 

Chicago,    Kans.    &    Neb.    R.    Co.    v. 

Cook,  120 

Chicago  Title  Co.  v.  MvDonald,  49 
Chillis  v.  Alexander.  516 
child-  v.  Lockett,  671 
Childs  v.  McChesney,  589 
Chinn  v.  Heale,  529,  533 
Chitwood  v.  Russell,  367 
Chopin  v.  Pollet,  849 
Chouteau  v.  Allen,  66 
Chrisman  v.  Partee,  840,  892 
Christian    v.    Cabell,    38,    196,    861, 

889,  891 

Christian  v.  Stanley,  911 
Christman  v.  Colbert,  607,  62f> 
Christy  v.  Ogle,  272,  275,   322,  349, 

456 

Christy  v.  Reynolds,  731 
Church  v.  Brown,  151 
Church  v.  Shanklin,  790 
Churchill  v.  Moore,  70 
Citizens'  Bank  v.  Freitag,  126,  128 
Clagett  v.  Crall,  261 
Clanton  v.  Burges,  485,  702 
Clapp  v.  Greenlee,    738 
Clapp  v.  Herdmann,  272,  295,  440 
Clare  v.  Lamb,  710 
Clare  v.  Maynard,  225 
Clark,  In  re,  848 

Clark  v.  Anbury,  792,  807,  S10,  811 
Clark  v.  Baird,'  14.  24» 
Clark  v.  Baker,  303,  571,  588,  597 
Clark  v.  Briggs,  755 
Clark  v.  Clark,  563 
Clark  v.  Cloghorn,  925 
Clark  v.  Conroe,  275,  391,  408 
Clark  v.  Croft,  640 
Hark  v.  Drake,  620 
Clark  v.  Faux,  30 
Clark  v.  Fisher,  310,  320,  442 
Clark  v.  Hardgrove,  534,  934,  935 
Clark  v.  Harper,  391 
Clark  v.  Hutzler,   836 
Clark  v.  Jacobs,  682 
Clark  v.  Johnson,  413 
Clark  v.  Lambert,  562 
Clark  v.  Lockwood.  131 
Clark  v.  Lyons,  153 
Clark  v.  Mumford,  513 
cl.irk  v.  Parr,   425 
Clark  v.  Perry,  339 


Clark  v.  Post,  138,  715 

Clark  v.  Redman,   37,   49,    149,    153, 

855 

Clark  v.  Rosario  Min.  Co.,  754 
Clark  v.  Seirer,  539 
Clark  v.  Spelling,  482 
Clark  v.  Swift,  286 
Clark  v.  Weiss,  212,  657,  886 
Clark  v.  \\  hitehead,   160,  397,  434 
Clark  v.  Woolport,  807 
Clark  v.  Zeigler,  319 
Clarke  v.  Cleghorn,  925 
Clarke  v.  Elliott,  527 
Clarke  v.  Locke,    15,   222,    228,    673, 

756 
Clarke  v.  McAnulty,    385,    386,    306, 

437 

Clarke  v.  Priest,  336,  478 
Clarke  v.  Scudder,  288 
Clarke  v.  Thorpe,  260 
Clarke  v.  Wilson,  137 
Clarkson  v.  Skidmore,  442 
Clason  v.  Bailey,  46 
Claxton  v.  Gilben.  419 
Claycomb  v.  Munger,  395,  402 
Claypoole  v.  Houston,  607 
Clee  v.  Seaman.  600 
Clegg  v.  Lemessurier,  58 
Clemens   v.    Loggins,    209,   210,    665, 

670,  672,  872 

Clement  v.  Bank,  275,  368,  415 
Clement  v.  Burtia,  854 
Clement  v.  Collins,  397,  460,  470 
Cleveland  v.  Bergen  B.  &  I.  Co.,  912 
Cleveland  v.  Flagg,  573 
Cleveland  Park  Co.  v.  Campbell,  308, 

314 

Cleveland  v.  Smith,  569 
Click  v.  Green,  226,  376,  425 
Clifton  v.  Charles,  238,  880 
Clinoh  River  Co.  v.  Kurth,  61,  69 
Cline  v.  Booty.  809,  810 
Oline  v.  Catron,  96 
Clinton  v.  Shugart,  649 
Clive  v.  Beaumont.  22 
Clody  v.  Southard,  846,  862,  868 
Clopton  v.  Bolton,  665 
Clore  v.  Graham,  311 
Close  v.  Martin.  769 
Close  v.  Stuyvpsant.  779 
Close  v.  Zell!  714,  716.  731 
Clough  v.  London.  Ac.  Ry.  Co.,  534 
Clouse's  Appeal.  841.  844 
Clowes  v.  Higginson.  34 
Clute-  v.  "Robinson,  37 
Coal  Crook  Mining  Co.  v.  Ross,  592 
Cobb  v.  Hatfleld,   14 
Cobb  v.  Klosterman.  293 
Oobb  v.  Naval  Stores  Co.,  563 
v.  Wellborn,  406 


TABLE   OF   CASES 


XXX111 


[REFERENCES  ARE  TO  PAGES] 


Coburn  v.  Haley,  680,  797 

Caburn  v.  Litehiield,   318,   343 

Cochran  v.  Guild,  312,  314,  318 

Cochran  v.  Pascault,  476,  477,  584 

Cockerell  v.  Cholmeley,  194 

Cocke  v.  Taylor,  228 

Cockey  v.  Cole,  94,  97 

Cockrell  v.  Bane,  371 

Cockrell  v.  Proctor,  292,  294 

Oockroft  v.  Railroad  Co.,  226,  233 

Codman  v.  Jenkins,  503 

Codrington  v.  Denham,  382 

Coe  v.  Harahan,  157 

Coe  v.  N.  J.  Mid.  R.  Co.,  605,  611 

Coe  v.  Persons  Unknown,  596 

Coffee  v.  Newson,  679,  739,  908,  915 

Coffin  v.  Cook,  120 

Coffman  v.  Huck,  450 

Coffman  v.   Scoville,   930 

Cogan  v.  Cook,  37 

Cogel  v.  Raph,  176,  186,  188 

Cogswell  v.  Boehm,  193,  909 

Cogwell  v.  Lyons,  236 

Cohen  v.  Woolard,  496,  696, 

Coit  v.  McReynolds,  275,  277,  278 

Colbert  v.  Moore,  113,  115 

Colby  v.  Keene,   313 

Colby  v.  Osgood,  379,  478 

Colcord  v.  Leddy,  892 

Colcord  v.  'Swan,  589 

Cole  v.  Gibbons,  193 

Cole  v.  Hawes,  366 

Cole  v.  Hughes,  326 

Cole  v.  Johnson,    142 

Cole  v.  Justice,  481,  493,  553 

Cole  v.  Kimball,  283,  336,  343 

Cole  v.  Lee,  358,  404 

Cole  v.  Raymond,  587 

Coleman  v.  Bank,  199,  657,  879 

Coleman  v.  Bruch,  838 

Coleman  v.  Clark,  274,  275,  459 

Coleman  v.  Coleman,   606 

Coleman  v.  Floyd,    681 

Coleman  v.  Hart,  71'5 

Coleman  v.  Insurance  Co.,  509 

Coleman  v.  Lucksinger,  284,  426  , 

Cbleman  v.  Luetcke,  361,  430 

Coleman  v.  Lymam,  283 

Coleman  v.  Rowe,   484,   606,   665 

Coleman  v.  Sanderlin,   658 

Coleman  v.  Whittle,   517 

Collier  v.  Cowger,  346,  389,  404,  451, 

463 

Collier  v.  Gamble,  283,  286,  292,  699 
Collingwood  v.  Irwin,  305,  438,  467, 

468 

Collins  v.  Baker,  465 
Collins  v.  Buffalo,  &c.  Ry.  Co.,  563 
Collins  v.  Clayton,  934 
Collins  v.  Delashmutt,  37,  789 


Collins  v.  Miller,  132 
Collins  v.  Smith,   533,   779 
Collins  v.   Thayer,   648,  675 
Collis  v.  Cogbill,  395,  465 
Colonial,  &c.  Mt'ge  Co.  v.  Lee,  563 
Colpe  v.  Lindblom,  759,  795,  845,  855, 

881 

Colton  v.  Wilson,  196,  779 
Colver  v.  Clay,  537,  545 
Colvin  v.  Schell,  457,  718 
Colwell  v.  Hamilton,  37,  640 
Colyer  v.  Thompson,  202,  756,  944 
Combs  v.  Combs,  390 
Combs  v.  Scott,  227,  232 
Combs  v.  Tarlton,  226,  236 
Comegys  v.  Davidson,  507 
Comer  v.  Walker,  905 
Comings  v.  Little,  320,  341,  343,  376 
Commercial  Bank  v.  Martin,  97 
Common  School  D.  v.  Conrad,  483 
Commonwealth  v.  Andre,  162,  590 
Commonwealth  v.  Bierly,  590 
Commonwealth  v.  Dickinson,    130 
Commonwealth  v.  McClanachan,    707 
Commonwealth  v.  Pejepscut,  163,  590 
Compton  v.  Nuttle,  522 
Comstock  v.  Ames,   250 
Comstock  v.  Crawford,   120 
Comstock  v.  Lager,  215 
Comstock  v.  Smith,  572,  592,  593 
Comstock  v.  Son,   362,   947 
Conaway  v.  Gore,  605,  619 
Concord  Bank  v.  Gregg,  155,  250,  743, 

674 

Condit  v.  Bigelow,  566 
Condit  v.  Johnson,  194 
Conger  v.  Weaver,  226 
Conger  v.  Mericles,   619 
Congregation  v.  Miles,  671,  756,  724 
Cong,  of  Sisters  v.  Jane,  402 
Conklin  v.  Hancock,  294,  447 
Conley  v.  Doyle,    15 
Conley  v.  Dibber,    868 
Conley  v.  Finn,   806 
Connell  v.  McLean,  226,  229 
Connolly  v.  Peirce,  168,  221 
Connelly  v.  Phila,   133 
Connelly  v.  Putnam,  846 
Connor  v.  Eddy,  484,  571 
Connor  v.  McMurray,  574 
Connor  v.  Wells,  606 
Conrad  v.  Trustees,  426,  428 
Conrey  v.  Pratt,  590 
Contee  v.  Lyons,  99,  102,  177,  843, 
Continental    Coal    Co.   v.   Kilpatrick, 

255,  263 

Converse  v.   Blumrich,  628 
Con  way  v.  Case,  36 
Conwell  v.  Clifford,  265 
Coogan  v.  Ockershausen,  845 


XXXIV 


TABLE   OF  CASES 


[REFERENCES  AKK  TO  r. 


Cook  v.  Bean,  873 
Cook  v.  Curtis,  436,  468 
Cook  v.  Fuson,  353 
Cook  v.  Jackson,  511 
Cook  v.  Mix,  500,  501,  502 
Cooice  v.  Husband,  620 
Cooley  v.  Lee,  563 
Oooley  v.  Rankin,  484,  696,  702 
Coombs  v.  Lane,  115 
Coombs  v.  O'Neal,  848 
Coonrod  v.  Studebaker,  173,  780 
Coons  v.  North,   138 
Cooper  v.  Bloodgood.  383,  384,  485 
Cooper  v.  Burns,  f>90 
Cooper  v.  Denne,  798,  900,  901 
Cooper  v.  Emery,  166 
Cooper  v.  Cranberry,  413 
Cooper,   In  re,  466 
Cooper  v.  Phibbs,  948.  960 
Cooper  v.  Reynolds,  98 
Cooper  v.  Rutland,  850 
Cooper  v.  Singleton.  511,  655,  787 
Cooper  v.  Sunderland,  107 
Cooper  v.  Watson,  464 
Cope  v.  William*,  670.  686 
Copeland  v.  Copeland,  307 
Copeland  v.  La  mi,  608 
\      Copper  v.  Wells.  531 

^Copwood  v.  MeCandless.  403,  735 
Corbally  v.  Hughes,  649 
Oprbett  v.  Dawkins,  113.  705 
Corbett  v.  McGregor,   248,    252.   257, 

940 

Corbetl  v.  Xoreross,  58 
Corbett  v.  Nutt,   843 
Oorbett  v.  Shulte,   199 
Corbin  v.  Railway  Co.,  593 
Obrooran  v.  White,  525,  544 
Cords  v.  Goodwin,  801 
Core  v.  Strieker,  83 
Core  v.  Wigner,  805,  902 
Corey  v.  Matthewson,   197,  788 
Corn  v.  Bass,  326,  857 
CorneliuH  v.  Kinnard,  362 
Cornelius  v.  Kromminga.  319,  856 
Cornell  v.  Andrews,  765.  786,  840 
Cornell  v.  Jark*on,  282.  3IMJ,  445,  584 
Cornell  v.  Rodwbaugh.  226 
<  <.r n Mi   v.   Capron.   366 
Cornwall  v.  \ViHianiH,  520 
Cornwell  v.  Clifford.  483 
(Vjrrall  v.  Cat  toll.  901 
(Vir*on  v.  Mulvany,  538 
OorW  Cane.  382 
Corwin  v.  Benhnm.  81.  122 
Oorwith  v.  (drifting,    101 
Coxhy  v.  Dnnr.inger.  856 
Conner  v.  McCrum,  68 
Costi-llo  v.  Tanker,  828 


Coster  v.  Monroe  Mfg.  Co.,  157,  357, 

922,  923 

Costigan  v.  Hastier,  522 
Costigan  v.  Hawkins,  946 
Cotes  v.  Raleigh,  913 
Ootting  v.  Comm'th,  314,  318 
Cotton  v.  Ward,  584.  839,  894 
Cottrell  v.  Cottrell,   159 
Cottrell  v.  Watkins,   805 
Coudert  v.  Sayre,  323 
Coughenour  v.  Stauft,  725 
Coulson  v.  Wing,  120 
Oourtright  v.  Courtright,  611 
Covell  v.  Cole,  533 
Coverly  v.  Burrell,  32 
Coves  v.  Hallahan,  85.1 
Cowan  v.  Kane,  322,  533.  539,  855 
Cowart  v.  Singletary,  563 
Cowdrey  v.  Coit,  403 
Cowdrey  v.     Cuthbert,  549 
Cowdrey  v.  Greenlee,  172,  839 
Cowen  v.  Wi  throw,   134 
Gowley  v.  Watts,  21 
Cox  v.  "Bradford,  462,  469 
Oox  v.  Coventon,  850 
Cox  v.  Oox,  95.  806,  822 
Oox  v.  Davis,  92 
Cox  v.  Henry,    227,    244,    425,    439, 

451,  45."',  490,  731,  717 
Cox  v.  Johnson,  549 
Cox  v.  Middleton,  21 
Cox  v.  Strode,    228,    289,    424,    423, 

468 

Coyne  v.  Souther,  123 
Crabtree  v.  Levings,  49.  159 
Craddock  v.  Shirley,  196.  203,  882 
Craft  v.  La  Toureite,  681 
Craft  v.  Merrill,  134 
Craig  v.  Donovan,  287 
Craig  v.  Heis,  312.  485 
Craig  v.  Lewis,  324.  600 
Craig  v.  Martin,  887 
Cramer  v.  Benton,  592 
Cramer  v.  Mooney,  876 
Crandnll  v.  Kirk'  228 
C'rane  v.  Collenbaugh,   400 
Crane  v.  Development  Co..  740 
Craus  v.  Durdall,  329 
Craven  v.  Clary.  402 
Crawford    v.    Kebler,   258.    259,    641, 

750,   863 

Crawford  v.  McDonald.  300.  .121 
Crawford  v.  Murphy.  702.  725 
Crawford  v.  Pendleton.  391 
Crawford    Co.    Bank    v.    Baker,    388, 

400,  410 

Trawley  v.  Timlnrlake.  788 
Crayton  v.  Munper,  116 
Creekmore  v.  Bryant,  563 


TA3LE   OF  CASES 


XXXV 


[REFERENCES  ARE  TO  PAGES] 


Creigh  v.  Boggs,  907 

Creighton  v.  Pringle,  616 

Crenshaw  v.  Smith,  445 

Creps  v.  Baird,  122 

Crim  v.  Umbsen,  26,  628 

Crippen  v.  Baumes,  619 

Cripps  v.  Read,  157,  705 

Crisfield  v.  Storr,  362,  387,  409,  436, 

453,  459,  460,  472,  473 
Critchett  v.  Cooper,  37,  216 
Critchfield  v.  Kline,  607 
Crittenden  v.   Craig,  249 
Crittenden  v.   Posey,   228,  451 
Crocker  v.  Ingersoll  Eng.  Co.,  235 
Crocker  Pt.  Asso'n  v.  Gouraud,  808, 

810 

Crockett  v.  Crockett,  624 
Croft  v.  Thornton,  562 
Cronister  v.  Cronister,  730 
Cronk  v.  Trumble,  209 
Crocker  v.  Jewell,  413 
Croom  v.  Allen,  391,  417,  433 
Crop  v.  Norton,  520,  522 
Crosby  v.  Evans,  415,  540,  f>68,  569 
Crosby  v.  Thedford,  824 
Crosby  v.  Wynkoop,  227,  228,  794 
Crosier  v.  Acer,  951 
Cross  v.  Devine,  238 
Cross  v.  Freeman,  41 
Cross  v.  Lumber  Co.,  692 
Cross  v.  Martin,  584 
Cross  v.  Noble,  320,  709,  724 
Cross  v.  Robinson,  418,  571 
Cross  v.  Zane,  144 
Crosse  v.  Young,  382 
Crotzer  v.  Russell,  714 
Crouter  v.  Crouter,  823 
Crowder,  Ex  parte,   158 
Crowe  v.   Ballard,   194 
Crowell  v.  Jones,  275,  485 
Crowley  v.  Lumber  Co.,  323 
Crowell  v.  Packard,  706 
Croxall  v.  Sherrard,  805 
Crum  v.  Getting,  415 
Crum  v.  Loud,  609 
Crump  v.  Schneider,  251,  889 
Crutcher  v.  Stump,  386 
Crutchfield  v.  Danilly,  252,  258 
Crutchfield  v.  Hewett,  63,  833 
Cuba  v.  Duskin,  317 
Cnlbertson  v.  Blanchard,  680,  941 
Culler  v.  Motzer,  725 
Cullum   v.   Br.   Bank,   257,   259,   481, 

744,  928 

Culver  v.  Avery,  13,  747,  719 
Culver  v.  Jennings,  460 
Cumming's  Appeal,  125,  130 
Cummings  v.  Dolan,  837 
Cummings  v.  Freer.  624 


Cummings  v.   Hamrick,   300 
Cummings  v.  Harrison,  467 
Cummings  v.  Holt,  380 
Cummins  v.  Boyle,  492,   765,   925 
Cummins  v.  Kennedy,  392,  414,  425, 

430 

Cunningham  v.  Anderson,    119 
Cunningham  v.  Blake,  840 
Cunningham  v.  Buck,   133 
Cunningham  v.  Depew,  521,  530 
Cunningham  v.  Fithian,  202 
Cunningham  v.  Friendly,  773,  807 
Cunningham  v.  Gwinn,  640 
Cunningham  v.  Knight,  409 
Cunningham  v.  Sharp,   37,    799,    811, 

840,  912 

Curd  v.  Davis,   496 
Curling  v.  Flight,  903 
Curling  v.  Shuttleworth,  771 
Curran  v.  Banks,  549 
Currie  v.  Cowles,  529 
Currie  v.  Nind,  802 
Curtis  v.  Deer  ing,  391,  471 
Curtis  v.  Gooding,    142 
Curtis  v.  Hawley,  423,  792,  793 
Curtis   Land   Imp.   Co.   v.   Land   Co., 

21,  36,  37,  789 
Gushing  v.  Spalding,  842 
Cushman  v.  Bean  534,  857 
Cushman  v.  Blanchard,  456 
Custer  v.  Hall,  565 
Cuthbertson  v.   Irving,  420 
Cutter  v.  Waddingham,  600 
Cutts  v.  Thodey,   193 
Cypress  Lumber  Co.  v.  Tiller,  535 

D. 

Daggett  v.  Reas,  289,  386 

Dahl  v.  Pross,  548 

Dahle  v.   Stakke,   309,  343,  502,  503, 

509 

Dail  v.  Moore,  61,  64 
Dailey  v.   Springfield,   595 
Daily  v.  Litchfield,  765 
Daisy  Realty  Co.  v.  Brown,  329 
Dalby  v.  Pullen,  889 
Dale  v.   Shively,  272,   289,   439,   456, 

458 

Dale  v.  Sollett,  648 
Dallmyer  v.  Ferguson,  806 
Dalrvmple  v.  Cole,  540 
Dalton  v.  Bowker,  425,  465,  468 
Dalton  v.  Taliaferro,  150,  300 
Daly  v.  Bernstein,  652,  654 
Daly  v.  Bruen,  214 
Dalzell  v.  Crawford,  773,  822 
D'Amelio  v.  Abraham,  340 
Damm  v.  Moors.  620 
Dana  v.  Goodfellow,  302 


XXXVI 


TABLE   OF   CASES 


IKUFEKEXCES  ABE  TO  P.UJKS] 


Dunaher  v.  Hildebrand,  846 

Dane  v.  Berber,  607,  014 

Danforth  v.  Smith,  292,  431 

Daniel  v.  Baxter,  642 

Daniel  v.  Hollingshed,  186 

Daniel  v.  Leitch.  hii.  S4,  96 

Daniel  v.  Sinythe,  860 

Daniell  v.  Shaw,  77:5,  856 

Daniels  v.  Newton,  19 

Danly  v.  Rector,   122 

Danzer  v.  Moersehel,  810 

Darlington  v.  Hamilton,  31,  854 

Darrow  v.  Cornell,  222,  800 

Darrow  v.  Horton,  888 

Dart  v.  Barbour,  622 

Dart  v.  Dart,  592 

Dart  v.  McQuilty,  536 

Darvin  v.  HiUfield,  87 

Daughtry  v.  Knolle,  363,  952 

Davar  v.  Caldwell,  837 

Davenport  v.  Bartlett,  394,  395,  402, 

406 

Davenport  v.  Latimer,  203,  521 
Davenport  v.   Roberts,  600 
Davenport  v.  Scovil,  619 
Davenport  v.  Sparkman,  172 
Davenport  v.  Whisler,  734 
Davidson  v.  Cox,  281,  419 
Davidson  v.  Keep,  630 
Davidson  v.  Moss,  250,  940 
Davidson  v.  Van  Pelt,  38 
Davies  v.  Hughes,  113 
Davis  v.  Agnew,  568 
Davis  v.  Bean,  508 
Davis  v.  Beasley,  61 
Davis  v.  Evans,  2(12 
Davis  v.  Fair,  364,  425 
Davis  v.  Gaines,    141 
Davis  v.  Heard,  267,  7S1,  681,  944 
Davis  v.  Henderson.  38,  153 
Davis  v.  Hunt,  125 
Davis  v.  Lee,  234.  451,  491 
Davis  v.  Lewis,  240 
Davi-  v.   Ixigan,  390.  927 
Davis  v.  Lyman,  272.  27.">,  280,  313. 

366 

Davis  v.  Murray,  l:t'>.  517 
Davis  v.  Park 
DavU  v.   K«-nl  214 

Davis  v.  Rogers,  "621.  t; 
Davi-*  v.    Ilii-i-n/wpig,    683 
D.ivi-   v.   SliirMs,  40 
D.ivi-  v.   Smitli  .  425,  465 

Davis  v.  Symoinls.  <',:i 

->  v.  Teal.    3R7 

D.ivi-  v.  Tnllemtu-he.  477.  558 
Davis  v.  Watwn,  671.  912 

v.   Willx, nrni'.  461.  468 
Davinor  v.  DeFreect,  4W 
v    IVrrine,  757 


Danes  v.  Betts,  32 

Dawson  v.  Shirley,  149 

Day  v.  Browne,   160 

Dav  v.   Biirnham.    153 

Day  v.   (JhiMn,   3!I2,  472 

Day  v.  Kingslund,  813,  816,  832 

Day  v.  Nason,   233 

Dayton  v.  Citizens'  Nat.   Bank,  623 

Dayton  v.  Dusenberry,  928,  930 

Dayton  v.  Mi-lick,   499 

Deacon  v.  Doyle,  331 

Deal  v.  Dodge,  482,  500,  755,  692 

Dean  v.  Morris.  127 

Dean  v.  Williams,  792 

Dearth  v.  Williamson,  37,  789 

Deaver  v.  Deaver,  37  S 

De  Chaumont  v.  Forsyth,  414 

Dock's  Appeal,  320 

Decker  v.   S-hult/i-.  256 

De  Courcey  v.  Barr,  62 

Deery  v.  Cray,  68 

De  Forest  v.  Leete,  347,  353 

Dellaven's  Appeal,  81 

Dehority  v.  Wright,  336 

Deichman  v.  Deichman,  215 

De  Jarnette  v.  Cooper.  614,  622 

De  Jarnette  v.  Dreyfus,  297,  352.  466 

De  Kay  v.  Bliss,  499 

Delafield  v.  James,  791 

Delano  v.  Saylor,  683 

Delavan  v.  Duncan,  213 

Delavergne  v.  Norris,  339,  343,  344, 

508 
Delco  Holding  Co.  v.  Rosenthnl,  311, 

373 

De  Long  v.  Improvem't  Co..  327.  410 
De  Long  v.  Spring  Lake  C".,   ».">! 
Demarest  v.  Friedman,  816 
Demarest  v.  Hopper.  .">!>2 
Demarett  v.  Bennett,  511.  512.  932 
Dcinars  v.  Koehler,  321 
Deim-rse  v.  Mitcholl.  589 
Demmy's  Appeal,   120 
Den  v.  Den i a  n-st.    589 
Den  v.  Oeiper.  70.  276 
Den  v.  Hamilton.    7  J 
Den  v.  Young,   125 
Denn    v.    C.inn-11.    r)87 
D.'iiiK-  v.  Light.  22 
Denning  v.  Crr-^.n.  268 
Dennis  v.  lyonp.  388 
D.-nnis   v.   Heatl..  :{!)B.   3<>7.   403,  484, 

.",0.1 

D-nni-  v.   Strain r^.-r.  2n;i.   s?2,  875 
Dtmnison  v.  Eh 
Denny  v.  C«\.  K',:.    . 
Denny  v.  Wi.-kliir.-.  ?:.».  TM.  !».'7 
Dc-n^.n  v.  I.OVP,  420.  50.'» 
Ih-nston  v.  Morris,  268.  931 
DcntW  v.  ISruwn.  726 


TABLE   OF   CASES 


XXXV11 


Dentler  v.   O'Brien,  893 

Depavo  v.  Rizzo,  896 

DePeyster  v.  Murphy,  314,  316 

Derr  v.  Wilson,  96 

De  Saussuer  v.  Bollman,  8,32 

Deseumuer  v.  Rondel,  785,  794 

Des  Moines,  etc.,  R,.  E.  Co.  v.  Beale, 

169 

Desverges  v.  Willis,  328,  921 
Dethloff  v.  Voit,  854 
Detroit  R.  Co.  v.  Griggs,  929 
Deverell  v.  Bolton,  138,  193,  196 
Devin  v.  Hendershott,  418,  419 
Devin  v.  Himer,  232 
Devine  v.  Lewis,  437 
Devine  v.  Rawle,   313 
Devling  v.  Little,  41 
DeVoney  v.  Chiappi,  852 
Devore  v.  Sunderland,  283,  287 
Devour  v.  Johnson,  468 
Dewey  v.  Campau,  67,  68 
DeWolf  v.  Hayden,  586 
DeWolf  v.  Mallet,  127 
Dexter  v.  Manly,  371,  390,  471,  473, 

475 

Dial  v.  Grain,  630 
Diamond  v.   Shriner,  523 
Diamond  State  Co.  v.  Husbands,  768, 

847 

Dickinson  v.  Colgrove,   806 
Dickerson  v.  Davis,  73 
Dickerson  v.  Trustees,  807 
Dickins  v.  Shepherd,  425,  445 
Dickinson  v.  Dickinson,  848 
Dickinson  v.  Glenney,  604,  624 
Dickinson  v.  Hoomes,   150,   153,   155, 

336,  366,  412,  420 
Dickinson  v.  Talbot,  562,  585 
Dickinson  v.  Voorhees,  363,  725 
Dickson  v.  Desire,  283,  287,  436 
Dig&le  v.  Boulden,  877 
Dif.'gs_  v.  Henson,  414 
Diggs  v.  Kirby,  247,  739,  743 
Dignan  v.  West,  404,  486 
Dikeman  v.  Arnold,  855 
Dill  v.  Noble,  792 
Dill  v.  Wareham,  712 
Dillahunty  v.  R.  Go.,  399,  400,  440, 

441 

Dillard  v.  Cochram,  565 
Dillinger  v.  Ogden,  792 
Dillingham  v.  Estil,  491 
Dimmick  v.  Lockwood,  346,  347,  431 
Dinniny  v.  Brown,  342 
Disbrow  v.  Folger,  829,  847 
Disbrow  v.  Harris,  491 
Diseker  v.  Eau  Claire  L.  Co.,  390 
Ditehey  v.  Lee.  203,  855 
Dix  v.  School  District,  486 
Dixo-n  v.  Astley,  196 


Dixon  v.  Cozine,  825 

Dixon  v.  Rice,   540 

Dixon  v.  Robbins,  65 

Doak  v.  Smith,  369 

Doan  v.  Mauzy,  528 

Doane  v.  Willcutt,  586,  589,  593 

Dobbins  v.  Brown,  360,  383,  384,  385 

Dobbs  v.  Norcross,  799 

Dobson  v.  Zimmerman,  241,  771 

Doctor  v.  Hellberg,  535 

Dod  v.  Paul,  605 

Dodd  y.  Nelson,  132 

Dodd  v.  Seymour,  36,  154,  159 

Dodd  v.  Templeman,   110 

Dodd  v.  Toner,  506 

Dodd  v.  Williams,  578 

Dodson  v.  Cooper,  555 

Doe  v.  Anderson,  104 

Doe  v.  Dowdall.  580 

Doe  v.  Oliver,  578 

Doe  v.  Quinlan,  562 

Doe  v.  Smith,   134 

Doe  v.  Stan  ion,  20,  30 

Doebler's  Appeal,  785,  840 

Doggett  v.  Emerson.  759 

Doherty  v.  Dolan,  12,  227 

Dole  v.'  Shaw,  803 

Doll  v.  Pizer,  829 

Dom.  Bldg.  Asso.  v.  Guardiano,  173 

Dominick  v.  Michael,  589,  901 

Donaldson  v.  Waters,  670 

Donehoo  v.  King,  573 

Donlon  v.  Evans,  20,  425 

Donnell  v.  Thompson,  293,  322,  350, 

360,  439 

Donner  v.  Reden'baugh,  243 
Donohoe  v.  Emery,  161,  376 
Donohue  v.  Vosper,  563,  575 
Donovan  v.  Frisker,  756 
Donovan  v.  Hoenig,  645,  896 
Donovan  v.  Twist,  571 
Doody  v.  Hollwedel,  837 
Doom  v.  Curran,  425,  459 
Dooman  v.  Killilea,  316 
Doppelt  v.  Geliebter,  839 
Dore  v.  So.  Pac.  Ry.  Co.,  880 
Doremus  v.  Bond,  495 
Dorincourt  v.  La  Croix,  227 
Dorr  v.  Middileburg.  950 
Dorr  v.  Steichen,  620 
Dorr  v.  Wilson,  96 
Dorsch  v.  Andrus,  194,  218,  852 
Dorsey  v.  Dashiell,  301 
Dorsey  v.  Gassaway,  591 
Dorsey  v.  Hobbs,  640 
Dorsey  v.  Jackman,  730,  725 
Dorsey  v.  Kendall,  104 
Doswell  v.  Buchanan,  578,  579> 
Dotson  v.  Bailey,  630,  761 
Dougald  v.  Dougherty,  564 


XXXV111 


TABLE   OF   CASES 


[REFERENCES  ARE  TO  PAGES] 


Dougherty  v.  Carberry,  838 

Dougherty  v.  Duval,  412,  436 

Doughty  v.  Cottraux,  511 

Douglas  v.  Lewis,  370 

Douglas  v.  Soott,  575 

Doupe  v.  Genin,  382 

Doutney  v.  Lambie,  776 

Dow  v.  Lewis,  158,  162 

Dowdney  v.  Mayor,  317 

Dowdy  v.  McArthur,  177 

Downer  v.  Fox,  555 

Downer  v.  Smith.  272,  275,  343,  446 

Downey  v.  Seib,  785 

Downing  v.  Anders,  883 

Downs  v.  Nally,  311 

Dowson  v.  Solomon,  194,  196,  198,  906 

Doyle  v.  brundred,  425 

Doyle  v.  Emerson,  311 

Doyle  v.  Hord,  363,  386,  951 

Drake  v.  Baker,   226,   229,   230,  242, 
425 

Drake  v.  Barton.  20.  149 

Drake  v.  Codci-oft,    382 

Drake  v.  Collins,  546 

Drake  v.  Gaffney.  217.  233 

Drake  v.  Shiels,*  22 
Drennere  v.  Boyer,  209.  666 
Dresbach  v.  Stein,  80,  82 

Dre»el  v.  Jordan,  77,  219,  838,  872, 

890 

Drew  v.  Clark.  956.  961 
Drew  v.  Corporation,  863 
Drew  v.  Pedlar,  215 
Drew  v.  Smith.  548 
Drew  v.  Towle.  395.  425,  485,  506 
Driggin  v.  Cassaday.  102,  104 
Driggs  v.  Dwight,  223 
Drinker  v.  Byers.  717,  731,  728 
DrLscoll  v.  Carroll.  857 
Driver  v.  Rpence.  131 
Droge  v.  Cree.  784.  843 
Drott  v.  Stevens.  705 
Dniry's  Case,  131 
Dniry  v.  Connor,  533 
Drury  v.  Imp.  Co.,  305 
Drury  v.  Mickleberry.  165 
Dniry  v.  Rhumway.  397,  433 
Drysdale  v.  Mace.  30 
Dubay  v.  Kelly.  445.  454 
Dubols  v.  James,  879 
DuBow  v.  Kell.  565 
Duchess  of  Kingston1*  CMC,  671 
Dudley  v.  Bryan,  609 
Dudley  v.  Ca'dwell.  576 
Dudley  v.  Folliott.  381 
Dudley  v.  Waldrop.  309.  311.  484 
Durtzmann  v.  Kmintj»,  333,  745 
Duff  r.  WiU.n.  308 
Duflield  v.  U  il«on.  637 
Duflield  v.  Scott,  454.  464 


Duffy  v.  Sharp,  312 

Dufief  v.  Boykin,  39.  640 

Dufour  v.  Cambranc,  140 

Duke  v.  Barnett,  30,  31 

Duluth  Land  Co.  v.  Klovdahl,  874 

Dumars  v.  Miller,  229 

Dun  v.  Dietrich,  299 

Dunbar  v.  Tredennick,  194 

Duncan  v.  Blair,  303 

Duncan  v.  Cafe,   195.   197 

Duncan  v.  Charles,  218 

Duncan  v.  Gainey.  143 

Duncan  v.  Jeter,"  755,  757,  681 

Duncan  v.  Lane,  484 

Duncanson  v.  Manson,  103 

Duncan  v.  McCullough,  567 

Duncan  v.  Tanner,  245 

Dundas  v.  Hitchcock,  70 

Dundy  v.  Chambers,  62 

Dunfee  v.  Childs,  94 

Dunghee  v.  Geoghegan.  229 

Dunham  v.  New  Britain.  617 

DunkMxTtfpr  v.  Whitehall,  405 

Dunklee  v.  Wilton  R.  Co.,  333 

Dunlap  v.  Dougherty,  60 

Dunlap  v.  Hepburn,  753 

Dunmars  v.  Miller.  226 

Dunn  v.  Frazier.  126,  144 
Dunn  v.  Huether.  855 
Dimn  v.  Mills.   194,   198.  671 

Dunn  v.  White,  311.  483.  494 

Dunnioa  v.  Sharp.  226.  235.  425 

Dunning  v.  Leavitt.  485.  500 

Dunn  i van  v.  Hughes,  657 

Dupre  v.  Thompson.  609.  624 

Dupree  v.  Savage.  261.  718 

Dupuy  v.  Roebuck.  394 

Duraml  v.  Williams.  281 

Durbin  v.  Shennor*,  379 

Dtirliam  v.  Hadlev.  20,  868,  877 

Duroe  v.  Evans.  .102 

Durrett  v.  Piper.  322 

Dussnume  v.  Burnett,  61 

Dust  in  v.  Newcomer,  224 

Dutch  v.  Warren.  648 

Dutch  Church  v.  Mott.  825.  879,  887 

DTtrirht  v.  MHohoir.  737.  949 

Dutton  v.  Oerish.  303 

Duval  v.  Craig.  100.  352.  366,  391 

Duvall  v.  Parker.  302,  772.  808  813 

D.   W.   Alderman  Co.   v.   McKnight. 

807 
Dwight  v.  Cutler,  20,  37,   150,  290, 

046,  765,  780.  »19 
Dwight '»  Case,  130 
Dwinel  v.  Vcazie,  158 
Dworsky  v.  Arndstein,  815,  830 
Dye  v.  Mnntngrte,  220 
Dye  v.  Thompson.  562 
Dyer  v.  Mm  ton.  403 


TABLE   OF   CASES 


XXXIX 


[REFERENCES  ARE  TO  PAGES] 


Dyer  v.  Dorsey,  243,  245 

Dyer  v.  Ladomus,  312 

Dyer  v.  Wightman,  383 

Dyett  v.  Pendleton,   382 

Dyker,  M.  L.  &  I.  Co.  v.  Cook,  767, 

859 

£. 

Eads  v.  'Murphy,  494,  670 
Eaker  v.  Harvey,  395 
Eames  v.  Armstrong,  275,  278,  282, 

290,   295.   601 
Eames  v.  Der  Gerrnania  Turn  Verein, 

191,  758 

Eames  v.  Savage,  15 
Earl  v.  Campbell,  640,  799,  860 
Earle  v.  Bickford,  712 
Earle  v.  De  Witt,  734,  737.  706,  714 
Earle  v.  Middleton.  434,  452 
Early  v.  Douglas,  825 
Early  v.  Garrett,  252,   745 
East  v.  Davis,  593. 
Easter  v.  Severin,  609,  611 
Eastman  v.  Home,   791 
Easton  v.  Montgomery,  20,   168,  172, 

643,  875,  881.  889 
East  Tenn.  Nat,  Bank  v.  First  Nat. 

Bank,  476,  559,  743 
Eaton  v.  Chesbrough,  314 
Eaton  v.  Eaton,  624 
Eaton  v.  Hopkins,  429 
Eaton  v.  Lyman,  283,  294,   340,  341, 

346.    465 

Eaton  v.  Tallmadge,   486 
Eberhardt  v.  Miller,   809 
Ebling  v.  Dwyer,  777-786,  827 
Eby  v.  Eby,  36.  37 
Eby  v.  Elder,  729 
Eccles  v.  Timmons,    90 
Echols  v.  Miller,    216 
Eckel  v.  Spitzer,   854 
Edde  v.  Cowan,   145 
Eddleman  v.  Carpenter,  565 
Eddy  v.  Chace,    334 
Eden  v.  Blake,  34 
Edgerton  v.  Page,   382 
Edington  v.  Nix,  343.  484,  696 
Edmison  v.  Zaborowski,   876 
Edmonds  v.  Cochran,  213 
Edwards  v.  Bodine,   485.  498,  923 
Edwards  v.  Clark,  303,  311.   320,321 
Edwards  v.  Davenport,   571-588,   589 
Edwards  v.  McLeay,    247,    252,    254, 

739,  744 

Edwards  v.  Morris,  485,  806 
Edwards  v.  Roys,  276 
Edwards  v.  Strode,    661 
Edwards  v.  Van  Bibber,  199,  800 
Edwards  v.  Varick.  592 
Edward^  v.  Watson,  216 
Edwards  v.  Wick  war,    30 


Efta  v.  Swanson,  378,  406 

Egan  v.  McDonald,   829 

Egan  v.  Martin,  289,  292 

Egan  v.  Yeaman,  340,  341,  929 

Eggers  v.  Busch,  767,  894 

Eisler  v.  Halperin,  801,  846,  855 

Ela  v.  Card,   289,  445 

Elam  v.  Donald,  14,  145 

Elder  v.  Chapman,  629,  873 

Elder  v.  First  Nat.  Bank,  490 

Elder  v.  McCloskey,   806 

Elder  v.  True,  433 

Elfenheim  v.  Von  Hafen,   14,  645 

Eller  v.  Moore,   323,   390 

Eller  v.  Newell,   882 

Elkin  v.  Timlin,  718 

Elkins  v.  Thompson,   50,   805 

Elkin s  v.  Seigler,  21 

Elliot  v.  Boaz,  757,  680,  681,  684 

Elliot  v.  Piersol,  75,  102 

Elliot  v.  Sanfley,  461 

Elliott  v.  Blair',   889 

Elliott  v.  Garvin,   736 

Elliott  v.  Hogue,  873' 

Elliott  v.  Osborn,  64 

Elliott  v.  Sackett,  615 

Elliott  v.  Thompson,  425,  440,  486 

Ellis  v.  Abbott,  460 

Ellis  v.  Anderton,  39,  90,  647,  654 

Ellis  v.  Crossley's    Sons,     399,     441, 

601,  733 

Ellis  v.  Ellis,  142 
Ellis  v.  Hoskwis,  666 
Ellis  v.  Lockett,  77,  791 
Ellis  v.  Welch,   381-383,   384 
Else  v.  Kennedy,   624 
Elterman  v.  Hyman,   683,   860 
Ely  v.  Hergesell,  413,  419 
Emerick  v.  Hackett,   149 
Emerson  v.  Hiles,  912 
Emerson  v.  Minot,  385 
Emerson  v.  Roof,   883,   884 
Emerson  v.  Sansom,   564 
Emerson  v.  Wlash.   Co.,   706 
Emery  v.  Barfield,  593 
Emery  v.  Grocock,  776,  778,  805 
Emery  v.  Pickering,  902 
Enrmons  v.  Moore,   252 
Engel  v.  Fitch,  223,  225,  226,  243 
Engel  v.  Tate,  801 
England  v.  Clark,   116.   122.   126 
England  v.  Garner,  94,   101.  Ill 
Englander  v.  Rogers,   212,    876 
English  v.  Benedict,  249,  940 
English  v.  McCrary,   594 
English  v.  Plaster'  Co,   212 
English  v.  Thomasson,  507,  695,  933 
English  v.  Thompson,    507,    695,    933 
Ennis  v.  Leach,    158 
Ensign  v.  Colt,  324,  350,  393 


TABLE  OF  CASES 


[HEFERENCK8  ARC  TO  PAGES] 


Eppig  v.  Gruhn,  868 

Eppstein  v.  Kuhn,  244,  534 

Erdman  v.  Corse,  805 

Kri.-kson  v.  Bennett,  236,  237,  238 

Krik>en  v.  \VKiteacarver,  858 

Krnst  v.  Ernst,  594 

Krnst  v.  Parsons,  286,  337 

Krskine  v.  Davis,  48 

Krwin  v.  flyers,  533,   763 

Espy  v.  Anderson,  154,  168,  295,818, 

865 
Estabrook  v.  Smith,    307,    320,    402, 

404,  436,   438 

Estell  v.  Cole,  524.  674,  787,  799 
Estep  v.  Bailey,    321,    349,    354,    462 
Estep  v.  .Estep',  482 
Estep  v.  'Walking,  855 
Ethington  v.  Rigg,  36,  867,  8S3 
Evans  v.  Ashby,   102.   103 
Evana  v.  Bicknell,  250 
Evans  v.  Boiling,  876,  885,  950 
Evans  v.  Gerry,  773,  819,  881 
Evans  v.  Dend'y.  90,  514 
Evans  v.  Jones.   Ti'T 
Evans  v.  Kingsberry,  53.1,  913 
Evans  v.  Marsh,  234,  853,  854 
Evans  v.  McLucas,  514.  510 
Evans  v.  Orchard   Co.,    170 
Evana  v.  Saunders.  :<7<i 
Evana  v.  Rnyder,    142 
Evan*  v.  Taylor,  3fl.  7S9,  856,  858 
Evans  v.  Turn  Verein.  191,  758 
Eveleth  v.  ('r<>ii<h.  422 
Kvcretl  v.  Dilley.   31  f, 
Kven-tt  v.  Mansfield,   681 
Everett  v.  Marston,  316 
Ev«rsole  v.  Eversole,  912 
Everson  v.  Kirtlnnd,   38 
K\ .  rta  v.  Brown,  365 
Kwart  v.   Item-man.  C.'J 
F.wing  v.   Hiimlley.  7^1 
Ewing  v.  Thompson,  226 
Kyre  v.  Woodfine.    131 
Eytrton  v.  Syin..n.l.   S79.  880 
Eyton  v.  Dicken,  77<6,  808 

F. 

Pagan  v.  Davidson,     105.    232.    7f>2. 

7!'7.  806 

F«gan  v.   M<\Vhirter,  512 
Fahy  v.  Cavanagh,  794 

Pithy  v.  K«i«-v   .-,1  » 

•  v.  Craw-ford.  837.  904 
Failing  v.  '  4K5.  653 

Fairbanks  v.  \Villininm.n 

'•rntluT  v.   Criflin.    415 
Fair.-liil.I  v.  Afart.hall.    777 
F«mloth  v.  I-'lor.    153.    158 
Fain  I'.'h   v.   .!«.r.l«n,    576 


Fairfax  v.  Lewis,   220 

Falk  v.  Organ,  284,  288 

Falkner  v.  Eq.  Rev.  Society,  777 

Falkner  v.  Guild,  38 

Falkner  v.  Haokett,  499 

Faller  v.  Davis,  275,  -2\  7 

Falls  v.  Dickey,  925 

Falls   City  Lumber   Co.   v.   Watkins, 

371 

Fane  v.  Fane,  961 
Fant  y.  Wright.  806 
Farber  v.  Bluhaker   Coal   Co.,   534 
Fariea  v.  Smith,  470 
Farley  v.  Bryant,  6*6,  617,  621 
Farley  v.  Eller,  580 
Farley  v.  Howard,  ::2.~, 
Farm,  Etc.,  Mtg'e  Co.  v.  \\ '!].!•>,  790 
B'armers',  Etc.,  Bank  v.  Cole,  4  1C. 
Farmers'  &   Mech.    Bank  v.   Detroit, 

818,  621 

Farmers'  Bank  v.  Galbraith,  730,725 
Farmers'  M;uik  v.  Glenn,  439,   584 
Farmers'  Tx>an  &  Trust  Co.  v.  Malt- 

•by,  578 

Farmers'  Bank  v.  Martin,  85 
Farmers'  Bank,  v.  Peter,  85,  146 
Farnham  v.  Hotdikiss,  485,  4'J7,  502 
Fainsworth  v.  Duffner,   721 
Farnunr  v.  BufTtim,  72 
Farnum  v.  I'rterMui.    572 
Farreli  v.  Lloy.l.  2:.:..  74-3 
Farrington  v.  Tennessi'i'.   698 
Farrington  v.  Tourtdlut,   330 
Farrow  v.  May».    ">1"> 
Farwell  v.  Bean,  433,  462 
Fash  v.  Blake. 
Fassler  v.  S-treit,  402,   402 
Favill  v.  Roberts,    14.T 
Feemster  v.  M:iy.   :{7,   t'.r,.").   071 
Fehlaber  v.  Foh'la1..-r.    27s.    J!)0, 
K.'lir!.-  v.  Turner,   4S:t,   923 
Feiner  v.  K.-i-s.  845 
Feist  v.  Blork.  »i:,:i 
Feldbhimv.  I^aror  Co.,  683 
F.'l.lhut    v.    I'.rummitt.   330 
Felix  v.  ivvlin.  :>.•{:! 
r.-ller  v.   MiMi.-ll.   K28 
Felln\v>  v.    KVJIIIX.    2Ci5.    485 
Krltcn-t.'in  v.   Kru-t,   654 
Fenton,  v.  Alw>p.  93ft 
v.   Huir.   622 
v.  Hint  on,   65 
ii  v.   !>ni».   372 
"ii  v.    I-M gar.   H52 
Ferjruwm  v.  Prinre.  563 
Ferguson  v.  Terl.   i 
•>r'«  Case.  108 
l"rrnl..i.-h    v 
I-Ym-ll  V.  Alden.    466 


TABLE   OF   CASES 


xli 


[REFERENCES  ARE  TO  PAGES] 


Ferris  v.  Crawford,  305 

Ferris  v.  Harshea,   386,   397 

Ferris  v.  Plumber,  775 

Ferry  v.  Sampson,   770,  816 

Ferson  v.  Sanger,   9*43 

Feurer  v.  Stewart,   385 

Fewster  v.  Turner,  521 

Fid.  Lumber   Co.  v.  Ewing,  426,  446 

Field  v.  Snefl,  413,  423 

Fields  v.  Clayton,   607,  939 

Fields  v.  Hunter,  468 

Fields  v.  Baum,  637 

Fields  v.  Squires,  376,  412,  478,  694 

Fierce  v.  Houghton,   330,   332,   612 

Fife  v.  Clayton,  34 

Fillingin,  v.  Thornton,    927 

Final  v.  Backus,   72 

Finch  v.  Edmondson,  119 

Finch  v.  Noble,   601 

Findlay  v.  Toncray,  360,  386 

Findley  v.  Horner,  206 

Finley'v.  gteele,  370 

Finn  v.  Sleight,   600> 

Fir.ton  v.  Eggleston,   397 

First  Af.  Soc.  v.  Brown,  764,  818 

First  Af.  OI.  E.  Church  v.  Brown,  818 

First  Church,  Etc.,  v.  Cox,  318 

First  Xat.   Bank  v.  Gough,   607,  621 

First  Xat.  Bank  v.  Wentworth,  6'17, 

623 
First  Unit'rn   Soc  v.   Cit.,  Etc.,  Co., 

330 

Fish  v.  Cleland,  265 
Fish  v.  West,  640  ^ 
Fishback  v.  Williams,   662,  878 
Fishel  v.  Browning,    277,    322,    349, 

380 

Fisher  v.  Abney,   514 
Fisher  v.  Dow,   511,   513 
Fisher  v.  Eggert,   841 
Fisher  v.  Hurley,  940 
Fisher  v.  Kay,  529,  530 
Fisher  v.  Parry,   288; 
Fisher  v.  Salmon,   506 
Fisher  v.  Wilcox,    785 
Fisher  v.  Wood,   110 
Fitch  v.  Baldwin,  277,  278,  600,  940, 

949 

Fitch  v.  Casey,   37 
Fitch  v.  Fitch,   586 
Fitch  v.  Polke,  255,  919,  922 
Fitch  v.  Seymour,  325 
Fitch  v.  Willard,  26,  39,  453 
Fitts  v.  Hoitt,   322,   651,   855 
Fitzer  v.  Fitzer,   304 
Fitzgerald  v.  Peck,  956,  957 
Fitzhugh  v.  Croghan,   271,  277    278 

584 
Fitzhugh  v.  Land  Co.,  759 


Fitzpatrick  v.  Crowther,  363 
Fitzpatrick  v.  Featherstone,    755 
Fitzpatrick  v.  Fitzpatrick,  45 
Fitzpatrick  v.  Hoffman,  461,   736 
Fitzpatrick  v.  Leake,   849 
Fitzpatrick  v.  Sweeny,   834 
Flagg  v.  Eames,  57 
Flajole  v.  Schulze,   317 
Flanary  v.  Kane,  564,  587 
Flannagan?  v.  Oberthier,    188 
Flannagan  v.  Young,    76 
Flannigan  v.  Fox,  219,   792,   854 
Flanniken  v.  Xeal,   409 
Fleming  v.  Burnham,   7'85,   843 
Fleming  v.  Harrison,    153 
Fleming  v.  Holt,  137,  158 
Fletcher  v.  Brewer,  890 
Fletcher  v.  Beck,  698 
Fletcher  v.  Button,  17,  38,  223,  226, 

235,  673 

Fletcher  v.  Moore,  897 
Fletcher  v.  Wilson,  584,  879* 
Flickinger  v.  Glass,  682 
Flight  v.  Booth,  201 
Flinn  v.  Barber,  20,  648 
Flint  v.  Steadman,   451 
Flint  v.  Woodin,  201 
Flood  v.  Graham,   320 
Flood  v.  Von  Marcard,  772,  819 
Floom  v.  Beard,   297 
Florence  Oil  Co.  v.  McCandless,  533, 

671,  683,  907 
Florentine  v.  Barton,    102 
Flowe  v.  Hartwick,  534 
Fluyder  v.  Cocker,  905 
Fly'v.  Brooks,   620 
Flurea.u  v.  Thornhiil,   225,  2i28 
Flynn  v.  Bourneuf,  303; 
Flynn  v.  White  Breast  Coal  Co.,  332 
Fogarty  v.  Finlay,  66 
Foland  v.  Italian   Sav.   Bank'  855 
Foley  v.  City  of   Haverhill,   313 
Foley  v.  Cro'w,  907,  911 
Foley  v.  Keegan,  226- 
Folk  v.  Graham,   367,  426,  447 
Folk  v.  Varn,  53 
Folliard   v.   Wallace,    380,    383,    469, 

472    792 

Follett  v.  Grant,  272 
Folts  v.  Huntley,  3i84 
Foor  v.  Bank,  Etc.,  Trust  Co.,  830 
Foot  v.  West,  215,  221,  647 
Foote  v.  Burnett,  283,  287,  346,  417 
Foote  v.  Clarke,    160,   274,   566 
Force  v.  Butcher,  637 
Ford  v.  Belmont,   S31 
Ford  v.  McBrayer,   563 
Ford  v.  Schlosser,   805 
Ford  v.  Walworth.   104,  409 
Ford  v.  Wright,   812 


xlii 


TABLE  OF  CASES 


[BBinMCM  ABB  TO  PAGES] 


Ford  v.  Yates,  34 

Fordtran  v.  Cunningham,  450,  889 

Fordyce  v.  Ford,  193 

Fore  v.  McKenzie,  92,   116 

Foreman  v.  Wolf,  805 

Forest  v.  Camp,  131 

Forster  v.  Abraham,  777 

Forster  v.  Hoggart,  30,  31 

Forster  v.  ficott,   856 

Forsyth  v.  Leslie,  193,  805,  816,  866 

Forteblow  v.  Shirley,  904 

Fortescue  v.  Real    Kst.   Co.,  393 

Fortlunan  v.  Deters,    553 

Fort  Jeff.  Imp.  Co.  v.  DuPeyster.  681 

Fort  Payne  Coal  &  I.  Co.  v.  Webster, 

891 

Fosdick  v.  Burr,   125 
Fosgate  v.  Herkimer  Mfg.  Co.,  878 
Foshay  v.  Shafer,  288,  387 
Foss  v.  Strachn,  586 
Fossume  v.  Requa,   38,  323,  333 
Foster  v.  Dwinel,   600 
Foster  v.  Foster,  323,  332,  346,  34<8 
Foster  v.  Gillam,  743 
Foster  v.  Gressett,  202,  259,  457,  940 
Foster  v.  Herkimer    Mfg.    Co.,    212, 

449 

Foster  v.  Hoggart,  30 
Foster  v.  Jared,   666 
Poster  v.  Kennedy,  249 
Foster  v.  Lyons,  933 
Foster  v.  Thompson,  452 
Foster  v.  Woods,  306 
Foster  v.  Young,   160,   162 
Foster  &  Co.  v.  Saylea,  833,  859 
Fountain  Val.  Co.  v.  Waggoner,  740, 

741 

Foute  v.  Elder,  204,  657 
Fouler  v.  Cravens,  757 
Fowler  v.  Johnson,  225 
Fottirr  v.  M  anheimer,  815 
Fowler  v.  Poling,  272.  38.1.  389,  395 
Fowler  v.  Shearer,   589 
Fowler  v.  Smith.   397,  482 
Fowler  v.  Ward.  755 
Fox  v.  Biroh,  527 
Fox  v.  Haughton,  263 
Fox  v.  Kitton,  698 
Fox  v.  Lunilxr  Co.,  .">63 
Fox  v.  McGoodwin.  82 
Fox  v.  M.-iwh,    113.    115,  731 

v.  Widgery,  600 
Foy  v.  Houston.  riTft 
Tn.Ur  v.  Ura/olton.'&SO 
Fraixliot   v.  T.cnch.  742 
FrntH-i-.   v.   l!;i/«-lrip.   800 
Fram-i*  v.  Phnulor.   671.   678 
Franciscus  v.  Reipert,  4lt 


Frank  v.  Frank,  8&8 

Frank  v.  Riggs,  481,  923 

Franklin  v.  Dorland,  565 

Frantz  v.  Masterson,  512 

Frantz  v.  Vincent,  194 

Franz  v.  Orton,  521 

Fraser  v.  Prather,  61 

Fratt  v.  Fiske,  678 

Frazer  v.  Bentel,  325,  351 

Frazer  v.  Robinson,   699 

Frazer  v.  Supervisors,  272,  274,  275, 

289,  451 

Frazier  v.  Boggs,  36,  884 
Frazier  v.  Tubb,  950 
Frederick  v.  Campbell,  717,   730 
Frederick  v.  Cox,  94 
Freebody  v.  Perry,  527 
Freedman   v.    Oppenheim,    807,    834, 

844 

Frcelnmt  v.  Pearson,    798 
Freeligh  v.  Platt,   502 
Freeman,  v.  Auld,  509 
Freeman  v.  Bow,  657 
Freeman  v.  Caldiwell,    145 
Freeman  v.  Duncan,  200 
Freeman's  Bank  v.  Vose,  622 
Freeman  v.  Foster,  306,  308 
Freeman  v.  Preston,  70 
Freer  v.  Hesse,  770,  817 
Freetly  v.  Barnliart.  775,  843 
Freize  v.  Chapin.   fi.~>!> 
Freme  v.  Wright,    30,   738 
French  v.  Folsom,  329 
French  v.  Howard,  936 
French  v.  Genet,  556 
French  v.  Pratt,  134 
French  v.  Spencer.   597 
French  v.  "MrMillion,   588 
French  v.  Phelps,  829 
French  v.  Slack,  3-52 
Frenzel  v.  Miller.  264 
Frey  v.  Rawson.  :>r.j 
Freymoth  v.  Nelson,  400 
Friedly  v.  8<-heetz,  122.   162.  731 
Friedman  v.  Dcwees,  873 
Friend  v.  Mahan,  810 
Friendly  v.  El  wart.  .VJ  I 
Friendly  v.  Kurt 
Frink  v.   Hdlis. 
Frink  v.   |)ar-t.  371.  592 
Frisl.i..  v.  Hitfrnagli',   502 
Fri^by  v.  IVnllnnce,    592 
Friwihe  v.  Kramer,   142 
Fri-1oc  v.    T.atbani.    739 
Frit/  v.  Pii-(-y.    ::iO.    320,    301,    3M. 

442 
Friv  v.  Miller,  381.  -r>r>l 

in  v.  "Froman.  524,  624 
Front  v.  An  pier.   32ft 


TABLE   OF  CASES 


xliii 


[REFERENCES  ARE  TO  PAGES] 


Frost  v.  Atwood,  99,   140,   142 

Frost  v.  Bunson,  902 

Frost  v.  Earnest,  384 

Frost  v.  Knight,  19 

Frost  v.  Raymond,  274 

Frost  v.  Smith,  664 

Frost   v.    Yonkers    Sav.    Bank,    124, 

134 

Fruhauf  v.  Bendheim,   855 
Fryer  v.  Rockefeller,  66,  81,  834,  839 
Fucha    v.     Treat,  620 
Fuhr  v.  Cronin,  812,  871 
Fuhrmart  v.  London,    60,    727,    7!29 
Fullenlove  v.  Vaughn,  803 
Fuller  v.  Devoid,  308 
Fuller  v.  Savings  Bank,  .607 
Fuller   v.    Hubbard,    154,    220,    221, 

642,  855 

Fuller  v.  Hovey,   885 
Fuller  v.  Jillette,   312,  335 
Fuller  v.  Williams,  221 
Fulton  v.  Teager,  594 
Fuhveiler  v.  Baugher,    455-460 
Funk  v.  Creswell,  359,  395,  399,  400 
Funk  v.  Newcomer,  562 
Funk  v.  Voneida,  301,  311,  912,  332, 

347 

Furber  v.  Purdy,  649 
Furman    v.    Elmore,    289,    406,    425, 

433. 

Furnas  v.  Durgin,   301.   389,   396 
Furness  v.  Williams,   600 
Furnisa  v.  Williams,    272,   278,    600 
FurnoH  v.  Bank,  555 
Furst  v.  Bohl,  803 
Fuson  v.  Lambdin,  549 

G. 

Gadow  v.  Hunholz,  325 

Gage  v.  Cummings,  892 

Gager  v.  Edwards,  509 

Gaines  v.  Jones,  806 

Gaines  v.  Kenned-y,   142,   143 

Gaines.v.  Merchants'   Bank,   126 

Gaither  v.  O'Doherty,  153,  155,  521, 

879 

Galbraith  v.  Dilday,  611 
Galbraith  v. 'Reeves,  681 
Gale  v.  Conn,  483,  695 
Gale  v.  Dean,  227 
Gale  v.  Edwards,  321 
Gale  v.  Gale,  781 
Gale  v.  Morris,  609,  622 
Gale  v.  Nixon,  67'1 
Gallagher  v.  Withington,   551,   757 
Gallagher  v.  Stern,  571.  575 
Gallimore  v.  Grubb,   192 
Galloway  v.  Barr,  528 
Galloway  v.  Bradshaw,  911 


Galloway  v.  Finlay,  441,   551,  67-8 

Galvin  v.  Collins,  836 

Galwa'y  v.  Melchow,  622 

Gamble  v.  Daugherty,  605 

Gamble  v.  McClure,  372 

Games  v.  Bonner,   805 

Gammon  v.  Blaisdell,  16,  384 

Gano  v.  Green,  471 

Gans  v.  Renshaw,  196,  640,  677,  753, 

772,  775,  780,  908 
Gant  v.  Dunlap,  165 
Gantly  v.  Ewing,   134 
Ganz's  Appeal,  653 
Garber  v.  Armentrout,  713 
Garber  v.  Button,   873 
Garberino  v.  Roberts,  213 
Garcia  v.  Yzaguirre,  227 
Garden  City  L.  Co.  v.  Miller,  837,  847 
Gardiner  v.  M'cPike,    387 
Gardner  v.  Dembinsky,  779* 
Gardner  v.  Ketelta®,  381,  391 
Gardner  v.  Mayo,  945 
Gardner  v.  Moore,  $25 
Gardner  v.  Niles,  301 
Garfield  v.  Williams,  273,  281,  292 
Garibaldi   Realty  Co.  v.   Santangelo, 

200,  218.  871 
Garlick  v.  R'y  Co.,  599 
Gar  lock  v.  Cross,  416,  418 
Garner  v.  Garner,   301,   303 
Garner  v.  Leaverett,    247,    481,    755, 

757,  681 

Garnett  v.  Garnett,   46 
Garnett  v.  Macon,  112,  840,  861,  862, 

887,  890 

Garnett  v.  Yoe,  212 
Garrard  v.  Lantz,  553,  555,  726 
Garrett  v.  Christopher,  368 
Garrett  v.  -Cohen,  683,  885 
Garrett  v.  Crosson,  726 
Garrett  v.  Lynch,  114,  202 
Garrett  v.  McLain,  597 
Garrett  v.  Stuart,  437 
Garrison-  v.  Moore,  444 
Garrisort  v.  Newton,  885 
Garrison  v.  Sandford,   281,    335 
Gartman  v.  Jones,  492,  703 
Gartrell  v.  'Stafford,  533 
Garvey  v.  La   Shells,   673 
Garvin  v.  Cohen,  506,  671 
Gas®  v.  Sanger,  447,  951 
Gaston-  v.  Frankum,  22 
Gastry  v.  Perrin,  38 
Gates  v.  'McLean,   670,   673,   674 
Gates  v.  Parmly,  170,  234.  238,  244, 

246,  319,  771,  849,  855 
Gates  v.  Win  slow,  706 
Gault  V.  Van  Zile,  150 
Gaunt  v.  Wainman,  600 


xliv 


TABLE  OF  CASES 


[REFERENCES  ABE  TO  PAGES] 


Gaut  v.  Dunlap,  169 

Gautreaux  v.  Boote,  39 

Gay  v.  Hancock,  500,  932,  933,  937 

Gayle  v.  Fattle,  933 

Gazley  v.  Pierce,  35,  154 

Gedye  v.  Duke  of  Montrose,  883 

Gee  v.  Pharr,  371 

Gee  v.  Moore,  359,  596 

Gee  v.  Saunders,  662 

Gehr  v.  Hcgerman,  755 

Geizzler  v.  DeGraaf,  336,  339 

Geithman  v.  Eichler,  836 

Gen.  Finance  Co.  v.  Liberator  Society, 

560,  587 
Gen.   Underwriting   Co.   v.    Stillwell, 

340 

Genner  v.  Hammond,   245 
Gennings  v.  Norton,    301 
Gentry  v.  Callahan,  600 
Gentry  v.  Hamilton,  900 
Geoghegan  v.  Conolly,  20,  190 
Geoghegan  v.  Ditto,  142,  144 
George  v.  Brandon,  564 
George  v.  Conhahn,  49,   834,   893 

:  ire  v.  Putney,  404 
George  v.  Robinson,  409 
George  v.  Stockton,  665,  670 
Geo.  H.  Paul  Co.  v.  Shaw,  49,  78 
Georgetown  v.  Smith,  1:24 
Gerald  v.  Elloy.    330 
Gerault  v.  Anderson,  224,  531 
Geray  v.  Mahnomen   Land   Co.,    794, 

845 

Gerdes  v.  Moody,  612,  tf!9 
Gerhardt  v.  Spaldinir.  363 
German  Real  Est.  Co.  v.  Starke,  491 
Gerstell  v.  Shirk,  683 
Gervaise  v.  Brookins,  21,  673 
G«8t  v.  Flock.   71 
Getchell  v.  Chase.  485.  705 
Getty  v.  Peters  ',:>!,  628 
Geyer  v.  Girnrd,  5.71 
Gheen  v.  Harris,  318 
Oibbon«  v.  Moore.  307 
Gibbg  v.  Champion.   530 
Gibbs  v.  Jeminon,  243 
f'Jil.l.s  v.  Thayer,  359.  593 
fJiUon  v.   Brmvn.   876 

:i   v.  <  .irrrkrr,   227 
CiUon   v.  rt,., t,.ftii,    586,   592,    596 
<:il>*on  v.  Clarke,  527 

n  v.  Colt,    159 
Gibson  v.   l>  i  940 

Gibson  v.   Mii—rv.    162 
Gibson  v.  Ncwnua,  665.  872,  874 

•i  v.  Patterwn,  896 

n  v.  Kirhnrt.  4fi3.  706 

n  v.  Spurrier,  794 
Giddings  v.  Confleld,  472 


Giddings  v.  Kolter,  363,  400 

Gifford  v.  Ferguton,   483 

Gifford  v.  Socui>.    }x,.   497 

Gihon  v.  'Morris,*  485 

Gilbert  v.  BuHdey,  271,  281 

Gilbert  v.  Cherry,   18 

Gilbert  v.  Cooley,  141 

Gilbert  v.  Hoffman,  145,  567 

Gilbert  v.  James,  110 

Gilbert  v.  Peteler,  236,  7*63,  853 

Gilbert  v.  Rushmer,  344 

Gilbert  v.  Wyman,  302 

Gilbreath  v.  Dilday,  619 

Gilchrist  v.  Buie.  36,  37 

Gilchrist  v.  Dilday,  73 

Giles  v.  Dugro,  320,  326,  408,  444 

Giles  v.  Paxson,  790 

Giles  v.  Peo.  Nat.  Bank.  649 

Giles  v.  Union  L.  Co.,  790 

Gilham  v.  Real  Est.  Co.,  317 

Gilhanr  v.  Walker,  923 

Gill  v.  Corbin,  2.10 

Gill  v.  Ferrin,  306 

Gillam  v.  Brings.  516 

Gillen  v.  Po\ve,  568 

Gillespie  v.  Tornance,  644 

Gillett  v.  Maynard,    .634,    647,     664, 

763 

Gillette  v.  Hill,    141 
Gillidett  v.  Harden,  40 
Gilliland  v.  Fenn.  573 
Gills  v.  Wells,  ?88,  827 
Gilnian  v.  Eichler.  26 
Gilpin  v.  -Smith,  484,  744 
Gilroy  v.  Alis,  944 
Gillner  v.  Ruyl,  525 
Giinoll  v.  Adams,  51 
Ginn  v.  Hancock,  325 
Girrther  v.  Townsend,  21,  38 
Gish  v.  Moomaw,  700 
Githens  v.  Barthill,  406 
Gittings  v.  Worthinpton,  375 
Given  v.  M<-rnrroll.  106 

\.   Brown.    940 
Glaw  v.  Richardson,   7^6 
Glasscock  v.  Minor.  202,  265 
niri-.-<-nr-k  v.  Robin-on.    7">n,    860 

;an  v.  Condon.  649 
Gler.«on  v.  Smith,  383 
Glendenning  v.  Oil  Co..  562 
Clrnn  v.  Allison.  160.  ].;| 
Glenn  v.  Clapp.  Sfi,  8S 
f']c>un  v.  Roller,  21-' 
flN-im  v.  Thistlo.  .W9,  502,   50fl 
Glnlw  More.  Co.  v.  Prrkoy,  344 
C, lover  v.  f9hiel. 

le  v.  Linden,  2Jfi 
rjober  v.  TTnrt,  684 
Gochenour  v.  Mowry,  580 


TABLE   OF   CASES 


xlv 


[REFERENCES  ABE  TO  PAGES] 


Godd'in  v.  Vaughn,  38,  153,  158,  191, 

201,  203,  902 

Godfrey  v.  Rosenthal,  867 
Godley  v.  Taylor,  160 
Godson  v.  Turner,  32,  204 
Godwin  v.  Maxwell,  204 
Goelth  v.  White,  7'56 
Goerlitz  v.  Malanistta,  840 
Goettel  v.  Sage,  730,  9-?5 
Goetz  v.  Walters,  895,  898 
Goetzmann  v.  'Caldwell,  876 
Goff  v.  Hawkes,  226,  238,  240 
Goff  v.  O'Connor,    125 
Going  v.  Oakland,  7'86,  884 
Golden  v.  Maupin,  098 
Goldman  v.  Miles,  807,  866 
Goldsmith  V.  Guild,  885 
Goldstein-  v.  Hensley,  7'6 
Goldstein  v.  Hirsh,"  854 
Golladay  v.  Knock,  565 
Gonzales  v.  Hukil,  588 
Gooch  v.  Atkins,  144 
Good  v.  Good,  239 
Good  v.  Herr,  954 
Goodbar  v.  Daniel,  122,  127,  622 
Goodbar  v.  Dunn,  622 
Goode  v.  Bryant,  567 
Goode  v.  Smith,  70 
Goodel  v.  Bennett,  423,  5(66 
Goodell  v.  Sanford,  172 
Goodenough  v.  Fellows,  588 
Goodin  v.  Decker,  203,  678 
Goodkind  v.  Bartlett,  250,  855 
Goodloe  v.  Woods,  -675 
Goodman  v.  Hadley,   706 
Goodman  v.  Heilig,    330 
Goodman  v.  Randall,  621,  623 
Goodman  v.  Rust,  751 
Goodman  v.  Schwab,  208,  683 
Goodman  v.  Winter,   143 
Goodwin  v.  Francis,  243 
Goodwin  v.  Maxwell,   361 
Goodwin  v.  Morey,  222 
Goodyere  v.  Ince,  131 
Gordon  v.  Champneys,   770 
Gordon  v.  Goodman,  950 
Gordon  v.  Mahoney,   755 
Gordon  v.  Phillips',  482 
Gordon  v.  Sims,  82 
Gordon-Tiger  Co.  v.  Brown,  202 
Gore  v.  Brazier,  389,  396,  427,  433, 

436 

Goring  v.  Shreve,  141 
Gorman  v.  Gorman,  8091 
Gorman  v.  Salisbury,  631 
Gosflbell  v.  Archer,  645,  647 
Gosman  v.  Pfistner,  847,  849,  912 
Goss  v.  Lord  Nugent,  33,  197,  630 
Goss  v.  Singleton,   872 
Gotthelf  v.  Stranahian,  520,  856 


Gottschalk  v.   Meisenheimer,   49,  219 

Goucher  v.  Helmbold,  724 

Goucher  v.  Martin,  630 

Gough  v.  Bell,  562 

Gougii  v.  Cutter,  574 

Gould  v.  Sternberg,   93,  94 

Gould  v.  Woodward,    66 

Gove  v.  Gather,  66 

Governor  v.  West  Imp.  Conrmrs.,  82 

Gourdine  V.  Fludd,  517 

Grace  v.  Regal,  "222 

Grady  v.  Ward,  807 

Gragg  v.  Richardson,  457,  461,  466 

Graham  v.  Anderson,  60,  226 

Graham  v.  Dyer,  432,  451,  461 

Graham  v.  Gates,  533 

Graham  v.  Graham,  226 

Graham  v.  Hack  well,    523 

Graham  v.  Hackwith,  523,  531 

Graham  v.  Meek,  589 

Gra'ham  v.  Tankersley,    464,    467 

Grames-  v.  Timber  -Co",  860 

Granger  v.  Olcott,  705,  945 

Grannie  v.  Clark,  391,  472 

Grant  v.  Hill,  445 

Grant  v.  Law,  756 

Grant  v.  McArthur,  11,  386 

Grant  v.  Tallman,  346,  496 

Grant  v.  Wasson,  806 

Grantland   v.   Wight,    157,   296,    517, 

764,  7'65,  926,  934,  935,  936 
Grapengether  v.  Ferjervary,  624 
Grasser  v.  Black,  769 
Grave*  v.  Mattingly,  160 
Gravea  v.  Spier,  14 
Graves  v.  Wilson,  32 
Gray  v.  Briscoe,  448 
Gray  v.  Handkisson,  516 
Gray  v.  Hill,  803 
Gray  v.  Jones,   188 
Gray  v.  Mills,  18,  218 
Gray  v.  Smith,  832,  872 
Gray  v.  Ward,  707 
Graybill  v.  Ruhl,  856 
Grayson  v.  Weddle,  621 
Great  Falls  Ice  Co.  v.  Worster,  580 
Great  Western  Stock  Co.  v.  Saas,  283 
Greaves  v.  Ashlin,  34 
Green,  v.  Biddle,  237 
Green  v.  Campbell,  925 
Green  v.  Couse,  678 
Green  v.  Chandler,  20,  248,  269,  741, 

889,  903 

Green  v.  .Collins,   407,   408 
Green  v.  Covilland,   35 
Green  v.  Finucane,  205 
Green  v.  Ditsch,  767 
Green  v.  Edwards,    423 
Green  v.  Green,    216,    555,    639,    666, 

855 


xlvi 


TABLE  OF   CASES 


[REFERENCES  ARE  TO  PA<;ES] 


Green  v.  Hern/.,  554,  650,  807 

Green  v.  Irving,  150,  394,  399,  403 

Green  v.  McDonald,  696,  697 

Green  v.  Pulsford,  778 

Green  v.  Tidball,  317 

Green  v.  Whipple,  923 

Greenbjatt    v.    Herrmann,    5S8,    819, 

830 
Greenby  v.  Cheevers,   216,    553,    666, 

887 

Greenby  v.  Wilcocks,  280,  472 
Greene  v.  Allen,   13,  761 
Greene  v.  Creighton,   323,    346,    348 
Greene  v.  Tollman,  342 
Gr«ene  v.  Williams,  224 
Greenfield  v.  Mills,  653,  867 
Greenlaw  v.  Williams,  461,  465,  467 
Greenleaf    v.    Cook,    206,    492,    501, 

751,  706 
Greenleaf    v.    Queen,    481,    750.    697, 

729 

Greenlee  v.  Gaines,  259,  757,  680,  940 
Greeno  v.  Munson,  404 
Greenough  v.  Small,  120 
Greenvault   v.   Davis,   385,   395,   398, 

400,  401,  422,  437 
Greenville  X.  B.  v.  Parkinson,  636 
Greenwood  v.  Hoyt,  232 
Greenwood  v.  Ligon,  37 
Gregg  v.  Carey.  76 
Gregory  v.  Christian.   896 
Gregory  v.  Keonan,  35.  671,  879 
Gregory  v.  Peoples,  569,  590,  591 
Gregory  v.  Sc-ott,  640 
Greisinger  v.  Nabor,  312 
Gremillion  v.  Roy,  459 
OreviHe  v.  Da  Costa.  11,  637 
Greyson  v.  Riddle,  895 
Greyson  v.  Tuson,  120 
Grin  v.   S*-ar1»orough,  303,  320 
Grider  v.  Land  Mtge.  Co.,  75 
Gridley  v.  Tucker.  500 
Griel  v.  Loina.v.  706 
Griesemer  v.  Hammond,  200.  874 
Griffin  v.  Cunningham,  765,  794,  807, 

818,   861 

Griffin  v.   Fairhrother,  272.  413 
Griffin  v.  Reynolds,  304.  426,  445 
Griffin  v.  Schneider,  869 
Griffin  v.  Sheffield,  589 
Griffith  v.  Bogert,   111 
Griffith  v.  Bradford.  791 
Griffith  v.  Drpcw,  759.  763,  6R1 
Griffith  v.  Kempshall,  257,  260,  497, 

714,  720 

Griffith  v.  Mnxfleld.  R2S.  845,  866 
Griffith  v.  Townley.  944 
Grigg*  v.  Landi*,*200 
Grigg*  v.  Woodruff.  200,  213,  681 
Grignon  v.  Atrtor,  102,  104,  106,  118 


Grimes  v.  Redman,  570 
Grist  v.  Hodges,  281,  379 
Griswold  v.  Allen,  408 
Griswold  v.  Block,  77 
Griswold  v.  Hazard,   954.    !)56 
Griswold  v.  Hicks,  111 
Grodan  v.  J^cobson,  77.  638 
Groefe'beek   v.   Harris,    386,   451,   461, 

511 

Groesbeck  v.  f^eley,   61 
Groom  v.  Booth.  30 
Gross  Lumber  Co.  v.  Leitner,  121 
Grout  v.  Townsend,  588 
Grove  v.  Bastard,  779 
Grove  v.  Zuinbro.  70 
Groves  v.  Stoudef,  678.  681,  912 
Groves  v.  Wittenberg.   678 
Grow  v.  Taylor,  789,  856 
Grubb's  Appeal,  612 
Grubbs  v.  Barber,  483 
Grundy  v.  Jackson,  550.  758 
Grymes  v.  Saunders,  952 
Gue  v.  Jones,  100 
Guerin  v.  Smith,  336,  352 
Guerrant  v.  Anderson,  581 
Gueramt  v.  Rivers,  433 
Guest  v.  Homfray,  887 
Guffey  Pet.  Co.  v.  Hooks,  585 
Guice  v.  Sellers,  484 
Guilmartin  v.  I'rquhart,  612 
Guinotte  v.  Choteau.  437 
Gulf  Coal  Co.  v.  Musgrove,  282.  363, 

385 

Gulick  v.  Railroad  Co.,  599 
Gump  v.  Sibley,  805 
Gunby  v.  Sinter,  264,  630 
Gum*  v.  'Moore.  363 
C.unn  v.  Thornton.  927 
C.unnison  v.  Blaisdell,  18,  384 
Gunnis  v.  Erhart,  34 
Gunter  v.  Williams,  394,  414 
Guthrie  v.   Pugfley,  444,  451 
Guthrie  V.  RUBMU,  343,   344.   346 
Guthrie  v.  Thompnon,  210,  216 
Guttwchlick  v.   Bank,    199,  637,   674, 

714 

Guy  v.  Hannow.  829 
Guynet  v.  Mantel,  913 
Gwin  v.  Calegaris.  646.  810 
Gwin  v.  MrCnrroll.    117.    119 
Gwirilhcr  v.  Gerding,  253,  740,   747, 

718 

Bwynn  v.  Hamilton.  954 
Gwynn  v.  Thomas,  478 


TTaag  v.  Dickinson.  652 

Ha»»er  v.  Burke.  753 

Habig  v.  Drnlge,  375,  595,  697 


TABLE   OF   CASES 


xlvii 


[REFERENCES  ARE  TO  PAGES] 


Hacker  v.  Blake,  292 

Hacker  v.  Storer,  281,  421 

Hacket  v.  Glover,  391 

Hackett  v.   Huson,  220,  221 

Haden  v.  Falls,  540 

Haddock  v.  Taylor,  239 

Haclloek  v.  Williams,  751,  90T 

Haff  v.  Price,   142 

Haffey  v.  Birchetts,   402,  427,  658 

Haffey  v.  Lynch,  860,  904 

Hagan  v.  Drucker,  770,  809 

Hagensick  v.  Oastor,  592,  597 

Haggart  v.  Scott,  879,  880 

Haggin  v.  Oliver,  922 

Hagler  v.  Simpson,  270,  398 

Hahl  &  Co.  v.  West,  227,  238 

Haight  v.  Hayt,  247,  739 

Haile  v.  Smith,  671,  673 

Haines  v.  Fort,  461 

Haire  v.   Baker,  3"05 

Halcombe  v.  Lowdermilk,  127,   145 

Haldane  v.  Sweet,  202,  321,  328,  331, 

484,  695 

Hale  v.  Cravener  545,  774,  799,   803 
Hale  v.  Marquette,  113,  115 
Hale  v.  New  Orleans,  427,   880 
Hale  v.  Wilkinson,   671 
Hall  v.  Betty,  20,  22,  30 
Hall  v.  Bray,  293,  395 
Hall  v.  Chaffee,   596 
Hall  V.  Clountz,  889 
Hall  v.  Dean,   311,   342 
Hall  v.  Delaplaine,   227 
Hall  v.  Gale,  275,  486 
Hall  v.  Huffhines,   637 
Hall  v.  McArthur,  640 
Hall  v.  McKee,   37,  790 
Hall  v.  Nevili;  204       . 
Hall  v.  Plaine,    411 
Hall  v.  Priest,  932 
Hall  v.  Scott,  805 
Hall  v.  Scott  Co.,  283 
Hall  v.  Smith,  32 
Hall  v.  York,  226 
Halley  v.  Oldham,   125 
Hallyburton  v.   Slagle,   562 
Hallick  v.  Guy,  116 
Halls  v.  Thompson,  250,  253,  267 
Halpern  v.  Fisch,  '653 
Halsey  v.  Jones,   132,  141 
Ham  V.  Ham,  599 
Hamar  v.  Medskar,  624 
Hamilton  v.  Cutts,  395,  400 
Hamilton  v.  Hamilton,   529 
Hamilton  v.  Hulett,   893 
Hamilton  v.  Lusk,  394 
Hamilton  v.  Wilson,  272,  274,  280 
Hamlon  v.  Sullivant,  616 
Hammatt  v.  Emerson,  920 
Hammers  v.  Hanrick,  259,  680 


Hammerschlag  v.  Duryea,  805 

Hammerslough  v.   Hackett.   292,   415 

Hammersmith  v.   Espy,   127 

Hammerstadt  v.  Bakeley,  292 

Hammond  v.   Chamberlain,  82 

Hammond  v.   Hamlin,  226,  229 

Hammond  v.  Jones,  393 

Hampton  v.  Pool,  415 

Hampton  v.   Specknagle,  218,  844 

Hampton  v.  Webster,  471 

Hampton  P'k  Co.  v.  Scottile,  321 

Hancock  v.  Bramlett,  909 

Hancock  v.  Carlton,   571 

Hancock  v.  Cloud,  1085 

Hancock  v.  Wiggins,  711 

Hand  v.  Grant,  84,   122 

Handy  v.  Rice,  541 

Handy  v.  Waxter,  84 

Haney  v.  Hatfield,  227 

Hanks  v.  Pickett,  650 

Hanlon  v.  Glue  Co.,  437,  447 

Hanna  v.  Phillip,  538 

Hann<a  v.  Shields,  292,  482,  929 

Hannah  v.  Henderson,  403 

Hannan  v.  McMickle,  670 

Hannis  v.  Scholz,  363 

Hanrick  v.  Patrick,  596 

Hanson  v.  Buckner,  402,  425,  430 

Hanson  v.  Fox,  664,  892 

Hantz  v.  May,   798 

Haralson  v.  Langford,  511 

Hardeman  v.  Cowan,  549 

Harden  v.  Collins,  592 

Hardigree  v.  Mitchum,  554,  960 

Hardin  v.  Clark,   134 

Hardin  v.  Harrington,  555 

Hardin  v.  Kirk,  60 

Harding  v.  Comm'l  Loan  Co.,  923 

Harding    v.    Larkin,    395,    451,    453, 

456,  458 

Harding  v.  Nelthorpe,  259> 
Harding  v.  Olsen,  765,  894 
Harding  v.  Sucher,  462 
Harthvick  v.  Forbes,  943 
Hardy  v.  Nelson,  433,  468,  571 
Hare  v.  Surges,  159 
Hare  v.  Holloman,  111,   120 
Harkreader  v.  Clayton,  549' 
Harland  v.  Eastland,   269 
Harle  V.  McCoy,  673 
Harlow  v.  Thomas,   323,  348 
Hanner  v.  Morris,  575 
Harn  v.  Smith,  565 
Harnett  V.  Yielding,  542 
Harpening  v.  Dutch  Church,  806 
Harper  v.  Dowdney,   317 
Harper  v.  Jeffries,   553,   555,   726 
Harper  v.  Perry,  411,  418 
Harper  v.  R?no,  549 
Harper  v.  Tidholm,  170 


xlviii 


TABLE  OF  CASES 


[REFERENCES  ABB  TO  PAGES] 


Harr  v.  Shaffer,  400 
Harru-s  v.  Edwards,  838 
Barrel  v.  Neef,  826 
Harriman  v.  Gray,  599 
Harrington  v.  Grimes,  842 
Harrington  v.  Higgins,  216,  219,  877 
Harrington  v.  Murphy,      322,      339, 

341,  404 

Harris  v.  Bolton,  210,  753 
Harris  v.  Byers,  563 
Harris  v.  Carter,  259,  872,  889 
Harris  v.  Granger,  909,  915 
Harris  v.  Newell,  292 
Harris  v.  Rowan,  484 
Harris  v.  Smith,   787 
Harris  v.  Van  Vranken,  794 
Harris  v.  Weed,  841 
Harrison  v.  Boring,  594,  598 
Harrison  v.  Boyer,  678 
Harrison  v.  Deramus,   206 
Harrison  v.  Harrison,   109,  120 
Harrison  v.  Palo  Alto  Co.,  378 
Harrison,  v.  Platt,  869,  870 
Harristm-  v.  Railway   Co.,   328 
Harrison  v.  Shanks,    130 
Harrison  v.  Soles,  555 
Harsin  v.  Oman,  299,  342 
Ilart  v.  Bleight,   19» 
Hart  v.  Gregg,  595 
Hart  v.  Handlin,  198,  751,  851 
Hart  v.  Hanmlwl    &   St.   J.   R.    Co., 

484,  687,  942 

Hart  v.  Porter,  731,  724,  727 
Hart  v.  Smith,   136 
Hartford  Co.  v.  Miller,  280,  292 
hurth  v.  Gibfcs,  123 
Harth  v.  Gibbs,  145,  146 
Hartley  v.  Coata,  684 
Hartley  v.  Gregory,  301 
Hartley  v.  James,  216,  646,  664,  808 
Hartley  v.  Smith,  778,  7S7 
Hartnian  v.  Stoll,  349 
Hartshorn  v.  Cleveland,  315 
Hartzell  v.  Crumh,  228 
Harvey  v.  Doe,  276 
Harvey  v.  Morris,  674 
Harvie  v.  Hodge,  662 
Harwood  v.  Benton,  334 
Harwood  v.  Blnnd,  193.  195 
Harwood  v.  Lee,  341,  944 
HiiHfltine  r.  Simmon*,  774 
Haslam  v.  Jordan,  669 
HawtelbuHch  v.   Mohmking,  341 
IlawtingM  v.  Hasting*.  343-363 
HaMings  v.  Land  Imp.  Co.,  317 
Halting*  v.  OTlonneH.  706 
Hasting*  v.  Vaughn,   72 
Hatch  v.  Barr,  61 
Hatch  v.  Cobb,  828,  807 
Hatcher  v.  Andrews,  326,  923,  925 


Hatcher  v.  Briggs,  143 

Halt  v.  Rich,  777,  845 

Haug  v.  Primeau,  119 

Haven  v.  Grand  June.  R.  Co.,  464 

Havens  v.  Foster,  959 

Havens  v.  Goudy,  667 

Haverington's  Case,  320 

Hawes  v.  Rucker,  133 

Hawes  v.  Swanzey,  201,  741 

Hawkins  v.  .Brown,  450 

Hawkins  v.  Burruss,  69 

Hawkins  v.  Johnson,  656 

Hawkins  v.  Rogers,  219 

Hawn  v.  Norris,  673 

Hawpe  v.  Smith,  114,  115 

Hawralty  v.  Warren,  539 

Hawthorn  v.  City  Bank,  336,  348 

Hayden  v.  Patterson,  275,  402 

Hayden  v.  Pirn-hot,  858 

Hayden  v.  Westcott,  63,  75 

Hayes  v.  Bickerstaff,  472 

Hayea  v.  Bonner,  641,  722 

Hayes  v.  Ferguson,  302 

Hayes  v.  Nourse,  784,  867 

Hayes  v.  Skidmore,  912 

Hayea  v.  Tabor,  594 

Hayman  v.  Steich,  868 

Haymon  v.  Camden,  111,  142 

Hayner  v.  Smith,  382 

Haynes  v.  Farley,  13,  18,  899 

Haynes  v.  Lucas,  11 

Haynes  v.  Seachriat,  6?2 

Haynes  v.  Stevens,  420,  468,  571 

Haynes  v.  White,  35,  36,  670 

Haynes  v.  Young,  408 

Haya  v.  Bonner,  743 

Hays  v.  Dalton,  142 

Hays  v.  Griffith,  94 

Hays  v.  Lackey,  563 

Hays  v.  Trible,   816,    826,    835,   889, 

899 

Hayt  v.  Bentcl,  645,  667 
Hayward  v.  Lomox,  564 
Hazclrig  v.  Hutson,  530 
Hazelton  v.  LeDnc,  210 
Hazlett  v.  Woodruff,  454 
Hazzard  v.  Morrinon,  201,  534,  546 
Headley  v.  Shaw,  209,  220 
Head 'a*  Trustees,  In  re,  893 
Hcadrick  v.  Yount,  82,   118 
Heard  v.  Hall,  162 
Heard  v.  Nnneolen,  616 
Hearnc  v.  Tomlin,   106,  636 
Hourne  v.  Tenant,  809 
Heath  v.   Black,   131 
Hea<h  v.  CYealork,  478,  660,  687 
Heath  v.  Newman,  396,  307,  484,  793 
Heath  v.  Whiddeti,  336 
Heavner  v.  Morgan,  960 
Hebler  v.  Brown,  277,  300,  387,  607 


TABLE   OF  CASES 


xlix 


[REFERENCES  ARE  TO  PAGES] 


'Heck  v.  Remka.  604 

Hecker  v.  Brown,  824 

Heeker  v.  Sexton,   830 

Hedderley  v.  Johnson,  769,  79*7 

Hedges  v.  Kerr,  153,  159 

Hedrick  V.  Smith,  456 

Hedrick  v.  Yount,  82,  118 

Heflin  v.  Phillips,  3'00,  371,  3'94,  481, 

923 

Heiberger  v.  Karfiol,  838 
Heidenburg  v.  Jones,  2l9 
Heiferman  v.  Scholder,  84>6 
Heimburg   v.    Ismay,    242,    539,    851, 

85'5 

Heisch  v.  Adams,  707 
Heisey  v.  Hartman,  805 
Heller  v.  Cohen,  808,  809,  834,  868 
Heller  v.  Maguin,  896 
Hellreigel  v.  'Manning,  797,  836 
Helm  v.  Griffith,  343. 
Helton  v.  Asher,   304,  305,   332,   349 

446,  £55,  460 

Helvenstein  v.  Higginson,  481,  670 
Hemmer  v.  Hustace,  783,  824,  827 
Hempstead  v.  Easton,  588 
Henderson  v.   Brown,   928 
Henderson  v.  Fields,  657 
Henderson  v.  Grewell,  '67 
Henderson  v.  Hay,  150 
Henderson    v.    Henderson,    322,    346, 

437,   916 

Henderson  v.  Lacon,  250 
Henderson  v.  Overton,  123,  126,  560, 

564,  600,  831 

Henderson  v.  Perkins,  814 
Henderson  v.  Rice,  70 
Hendrick  v.  Wisehart,  3'04 
Hendrick  v.  Young,   82,   118 
Hendricks  v.  Gillespie.  196,  798,  818, 

861,   863,   865,  887 
Hendricks  v.  Goodrich,    756 
Hendricks  v.  Kesee,  280 
HendTicks  v.  Stark,  326,  857,  858 
Hendrickson  v.  R.  Co.,  132 
Hennig  v.  Smith,  172,  810,  869 
Henning  v.  Withers,  289.  425 
Henofer  v.  Realty  Co.,  364 
Henry  v.  Barker,  867 
Henry  v.  Elliott,  703,  933 
Henry  v.  Liles,  153,  533 
Henry  v.  McEntyre,  409 
Henry  v.  McKerlie,  556 
Hensley  v.  Baker,  129 
Hepburn  v.  Auld,  834,  888,  907 
Hepburn  v.  Dunlop,  751,  879 
Heppinstall  v.  O'Donnell,  857 
Hepwell  v.  Knight,  884 
Herb  v.  Met.  Hosp.  &  Disp.,  351 
Herbemont  v.  Sharp,  517,  699 
Herbert  v.  Handy,  395 


Herbert  v.  Smith,  779 
Herbert  v.  Stanford,  667,  668 
Herbold  v.  Bldg.  Asso'n,  807 
Herington  v.  Clark,  400 
Herman  v.  Hall,  255 
Herman  v.  Sommers,  780,  800 
Herndon  v.  Venable,  226,  235 
Herrick  Imp.   Co.  v.  Kelly,  2(20 
Herrick  v.  Moore,  31u,  329,  351 
Herrin  v.  Mclntyre,  416 
Herrod  v.  Blackburn,  40 
Herron   v.    Bar-hour,    439,    489,    690, 

703 

Herron  v.  DeBard,   512 
Herryford  v.  Turner,   153,  484,  510, 

651 

Hersey  v.  Turbett,  725 
Hertzberg  v.  Irwin,  725,  T82,  831 
Hertzog  v.  Hertzog,  226,  236,  239 
Herzog  v.  Marks,  278 
Hesa  v.  Bowen,  803 
Hester  v.  Hunnicut,  400 
Hewison  v.  Hoffman,  214 
Hewitt  v.  Powers,  621,  625 
Heyman-v.  Steich,  868 
Heyn  v.  Ohmann,  474 
Iliatt  v.  Callaway,  606 
Hibbert  v.  'Shee,  637 
Hicksi  v.  Hicks,  187 
Hicks  v.  Lovell,  070 
Hickson  v.  Linggold,  116,  681,  889 
Hickson  v.  Rucker,  92 
Higgins    v.    Eagleton,    14,    200,    212, 

214,  649,  652,  900 
Higgins  v.  Johnson,  558 
Higginson  v.  Clowes,  33,  34 
Hightower  v.  Smith,  807 
Higley  v.  Smith,  160,  706 
Higley  v.  Whittaker,   667 
Hilary  v.  Waller,  805 
Hile  v.  Davison,  923 
Hileman  v.  Wright,  608 
Hill  v.  Bacon  312       , 
Hill  v.  Billingsly,  142 
Hill  v.  Buckley,  532 
Hill  v.  Butler,  485 
Hill  v.  Coburn,  593 
Hill  v.  Fiske,   528 
Hill  v.  Hobart,  14,  35,  220,  227 
Hill  v.  O'Brien,  571 
Hill  v.  Ressegieu,  38,  156 
Hill  v.  Samuel,   210,    549,   550,    671, 

755 

Hill  v.  West,   589 
Hilliker    v.    Rueger,    275,    290,    292, 

294,  454 

Hillyard  v.  Baiichor,  769 
Hihnert  v.  Christian,  299 
Hilton  v.  Duncan,  681 
Hinckley  v.   Smith,  909 


TABLE   OF  CASES 


[REFERENCES  ARE  TO  PAGES] 


Hinds  v.  Allen,  461,  467 

Hines  V.  Jenkins,  468 

Hines  v.  Richter,  224 

Hine*  v.  Robinson,   505 

Hinkle  v.  Margeruiu,  255 

Hilton  v.  Scwenfeld,  843 

liintz  v.  Hintz,  503 

Hipwell  v.  Knight,  875 

Hiss  v.  McCabe,  63 

Hitchcock  v.  Caruthers,  142 

Hitchcock  v.  Fortier,  571 

Hitchcock  v.  Giddiugs,       267,       710, 

944,  951 

Hitchins  v.  Pettingill,  614 
Hite  v.  Kier,  646 
Hitt  v.  Campbell,  816 
Hixon  v.  Hovey,  21,  852 
Hoag  v.  Rathbun,  4ft7,  926 
Hoback  v.  Kilgore,  153,  156 
Hobbs  v.  King,  414,  588,  589 
Hobein  v.  Drewell,  5€6 
Hobson  v.  Bell,  26 
Hobson  v.  Buchanan,  880 
Hobson  v.  Lenox,  192,  879 
Hochster  v.  De  La  Tour,  19 
Hodges  v.  Fabian,  120 
Hodges  v.  Latham.  388 
Hodges  v.  Litohfield,  231 
Hodges  v.  Saunders,  15S,  414 
H<xlgson' v.  Farrell,  111 
Hoe's  Case,  131 
Hoffman  v.  Bosch,  42.~> 
Hoffman  v.  Oolgan,   791 
Hoffman  v.  Dickson,  326.  456 
Hoffman  v.  Kirby,  263,  444.  498,  604 
Hoffman  v.  Fettj  43 
Hogan  v.  McMurtry,  875 
Hogan  v.  Weyer,  757 
Hogg  v.  Odom,  47 
Hogsett  v.  Ellis,  303 
Hohn  v.  Bidwell.  593 
Hoke  v.  Jones,  928.  934 
Holabird  v.  Burr,  622 
Holbrook  v.  Debo.  506 
Holden  v.  Curtis.  712 
Holden  v.  Reed.  945 
Holder  v.  Taylor,  392 
Holeman  v.  Maupin,  934 
Holladay  v.  Menifee,  292,  468,  474, 

671* 

Holland  v.  Anderson.  264,  269,  751 
Holland  v.  Ashley,  363 
Holland  v.  Holmes,  153 
Holland  v.  Johnson,  99 
Holland  v.  Moon,  624 
Holland  v.  Rogers,  39 
Hollenburph   v.  Morrison,   Ml 
Hollifield  v.  Landrum.  163,  668,  796, 

805,  837 
Hollinguworth  v.  Mexia,  373,  418,  436 


Hollinsworth  v.  Colthurst,  790 

Hollister  v.  Dillon,  145 

Holley  v.  Younge,  494,  742 

Holloway  v.  Miller,  4011,  441,  551 

Holly  v.  Hirsh,  777,  794 

Holm  v.  Wust,  171 

Holmau  v.   Creagmiles,   508 

Holman  v.  Criswell,  11,  156 

Holmea  v.  Carr,  595 

Holmes  v.  Holmes,     212,     245,     877, 

879,  916 

Holmei*  v.  Richards,   803,   814 
Holmea  v.  Seaman,  437 
Holmes  v.  Shaver,    84 
Holmes  v.  Sinnickson,  425,  426,  459 
Holmes  v.  Wood,  827 
Holt  v.  Mynhier,  447 
Holt  v.  Ruleau,  278 
Holt's  Appeal,  834 
Holtzinger  v.  Edwards,  122,  127 
Holyoke  v.  Clarke,  160 
Home  Life  In«.  Co.  v.  Sherman,  395 
Homer  v.  Purser,  949 
Honaker  v.  Shough,  142 
Hoock  v.  Bowman,  892,  894 
Hood  v.  Clark,  300 
Hood's  Appeal,  455 
Hood  v.  Huff.  671 
Hooe  v.  Callahan,  25 
Hooker  v.  Folsom,  398,  482 
Hooper  v.  Armstrong,  497 
Hooper  v.  Henry,  572 
Hooper  v.  Jackson,  800 
Hooger  v.  Sac.  Co.  Bank,  404 
Hoot  v.  Spade.  445 
Hoover  v.  Chamber,  892 
Hope  v.  Blair,    101 
IIoj>e  v.  Stone,  367,  586.  590 
Hopkins  v.  Delaney,  66 
Hopkins  v.  CIrazebrook,  241 
Hopkins  v.  Lane,  413.  414.  410 
Hopkins  V.  Lee,  14,  223.  225,  227,  230 
Hopkins  v.  Mayzck,  957 
Hopkins  v.  Vowell,  228 
Hopper  v.  Hopper,  539 
Hopper  v.  Smyser,  306 
Hopp  v.  Lutkin.  921 
Hoppes  v.  Cheek,   380,  481,  923,  925 
IFoppin  v.  Hoppin.  5(52 
H  or  bach  v.   Boyd,  696 
Hnrbach  v.  f5ray.  729 
Horn  v.   Butler!  789 
HornlxK'k  v.  Building  Assn..  74 
Hornbeck  v.  Smith.  206,  859 
Hornbeck  v.  Wwtbrook,  47,  74 
Home  v.  Crain,  412 
Home  v.  Hughes,  945 
Home  v.  Rogers,  36,  200,  203,  205, 

057,  828 
Horner  v.  Beaaeley,  227,  238 


TABLE  OF   CASES 


li 


[REFERENCES  ARE  TO  PAGES] 


Hornter  v.  Lowe,  706 

Homer  v.  State  Bank,  103 

Horowitz  v.  Mendel  R.  E.  Co.,  770 

Horrigan-  v.  Rice,  278 

Horrocks  v.  Elgby,  532 

Horsford  v.  Wright,  433 

Horton  v.  Arnold,  486,  671 

Hosford  v.  Nichols,  1?50 

Hough  v.  Fink,  681 

Hough  v.  Rawson-,  657 

Houghtailing  v.  Lewis,  714 

House  v.  Kendall,  637,  843 

House  v.  McCormick,  564 

Houslay  v.  Lindsay,  8f 

Houston  v.  Cameron  -Co.,  364 

Houston  v.  Dickinson,  441 

Houston  v.  Henley,  201,  919,  932 

Houston- Oil  Co.  v.  Lumber  Co.,  574 

Houston  v.  Randolph,  48 

Houx  v.  Bates  Co.,  &18 

Howard  v.  Doolittle,  383 

Howard^  v.  Hurst,  438 

Howard  v.  North,   141 

Howard  v.  Randolph,  495,  517 

Howard  v.  Sebastian,  959 

Howe  v.  Harrington,  159,  592 

Howe  v.  Hunt,  776 

Howe*  v.  Hutchinson,  169 

Howe  v.  Walker,  303 

Howell    v.    Richards,    271,    366,    380, 

381 

Howes  v.  Barker,  714 
Howland  v.  Bradley,  644 
Iloxie  v.  Finney,  596 
Hoy  v.  Smythies,  31 
Hoy  v.  TaHaferro,  399,  484 
Hoyt  v.  Dimon,  575 
Hoyt  v.  Ketcham,  853 
Hoy±  v.  Rothe,  329,  391,  486 
Hoyt  v.  Tuxbury,  171,  865,  884 
Hrdlicka  v.  Evans,   553 
H.  T.  &  C.  Co.  v.  WlKitehouse,  422 
Hubachek  v.  Bank,  828 
Hub'bard  v.  Chappel,  497.  929 
Hubbard    v.   Norton,    329,    348,    420, 

445 

Hubbard  v.  Stannaford,  397 
Huber  v.  Groo,  870 
Huber  v.  Johnson,  911 
Hubert  v.  Grady,  611 
Hudgin  v.  Hudgin,  111,  141,  556 
Hudson  v.  Max  M.  L.  &  I.  Co.,  533, 

886 

Hudson  v.  Steare,  322 
Hudson  v.  Swift,  210,  666 
Hudson  v.  Watson,  210,  221 
Huff  v.  Chamberlain,   396 
Huff  v.  Cumberland   Val.    Land   Co., 

396 
Huff  v.  Reilly,  386,  451 


Huffman  v.  Gains,  135 

Hughes  v.  Adams,  7S91 

Hughes  v.  McNider,  496,  584,  898 

Hughes  v.  Parker,  20,  21 

Huisb/s  Charity,  In  re,  779 

Hulett  v.  Hamilton,  707 

Hulfish  v.  O'Brien,  497,  725 

Hull  v.  Field,  261 

Hull  v.  Hull,  111,  142,  367 

Hulse  v.  White,  425,  452 

Hume  v.  Bentley,  31,  190,  901 

Hume  v.  Dessar,  929.' 

Hume  v.  Pocock,  31,  265,  788 

Hummer  v.  'Buerck,  812 

Humphrey  v.  Clement,  322,  539,  541 

Humphrey  v.  McOlenachan,  445 

Humphrey  v.  Wade,  82 

Humphreys  v.  Hurtt,  603 

Humphreys  v.  Moses,  802 

Humpkey  v.  Norris,  15 

Hun  v.  Bourdon,  198 

Hundley  v.  TiWbitts,  872 

Hunt  v.  Amidon,   389,  414,  489,   734 

Hunt  v.  Hay,  378,  391,  426  436 

Hunt  V.  Marsh,  352,  484 

Hunt  v.  Middlesworth,   416,   502 

Hunt  v.  Moore,  257,  261 

Hunt  v.  Orwig,   414,   422,   440 

Hunt  v.  Rousmaniere,  954,  960 

Hunt  v.  Silk,   199,  758,  675 

Hunt  V.  Smith,   5*35 

Hunt  v.  Stearns,  891 

Hunt  v.  Weir,  842 

Hunter,  In  re,  20 

Hunter  v.  Bales,  521,  905,  9.06 

Hunter  v.  Goudy,  210 

Hunter  v.  Graham,  5*15 

Hunter  v.  Jameson,    159 

Hunter  v.  Reighitley,    350 

Hunter  v.  Lewis,   879 

Hunter  v.  O'Neill,  36 

Hunter  v.  Watson,  47 

Huntley  v.  Waddell,   363,   370 

Huntsman  v.  Hendricks,  448 

Kurd  v.  Hall,  944,  946 

Kurd  v.  Smith,  482 

Hurley  v.  Brown,  520,  891 

Hurley  v.  Ch'arles,  563 

Hurley  v.  Coleman,  496 

Huron- v.  Stratton,  319,  376 

Hurst  v.  Lithgrow,  415 

Hurst  v.  McNeil,  186* 

Hurst  v.  Means,  15,  16,  656,  657,  672, 

685 

Hurt  v.  Black  stone,  197 
Hurt  v.  McReynolds,  197,  518,  654 
Husseyv.  Roquemofe,  627 
Huston  v.  Noble,  766 
Hutching  v.  Brooks,  113 
Hutching  v.  Carleton,  53 


lii 


TABLE  OF  CASES 


[REFERENCES  ARE  TO  PAGES] 


Hutchins  v.  Moody,  322 
Hutching  v.  Roberts,  115 
Hutchins  v.  Kountree,  451,   452 
Hutchinson  v.  Aiiisworth,  6«if> 
Hutchinson  v.  Coonley,  212 
Hutchinson  v.  McNutt,  521,  878 
Hutson  v.  Furnas,  6U5,  620 
Huyek  v.  Andrews,  324,  328 
Hyatt  v.  Seeley,  156 
Hyde  v.  Dallaway,  33,  805 
Hyde  v.  Heller,  210,  752,  84G 
Hyde  v.  Kelly,  535 
Hyde  v.  Redding,  107 
Hyman  v.  Boston  Cliair  Mfg.  Co.,  371, 

395 

Hyme»  v.  Branch,  ?73,  784,  840 
Hyine*  v.  Esty,  328,  334,  449 
Hvmes  v.  \'an  Cleef,  425 
Hyne  v.  Campbell,  834,  838,  945 
Hynes  v.  Oldham,  96. 
Hynea  v.  Packard,  444 
Hyslip  v.  French,  756 


Ibbetson  v.  Knodle,  319 

Ice  v.  Ball,  714 

Ikelh«imer  v.  Chapman,  117 

111.  Land  Co.  v.  Boonier,  418,  422,  570 

Inderlied  v.  Honeywell,  385 

Indiana,  Etc.,  Mfg.  Co.  v.  Pharr,  6o7 

Ingalls  v.  Cook,  313,  571 

Iii-Mlls  v.  Eaton,  205,  298 

Ingalls  v.  Huhn,  12,  17,  783 

Inge  v.  LippingAvell,  63.1 

Ingersoll  Eng.  Co.  v.  Crocker,  854 

Ingraham  v.  Grigg,  66,  7.3 

Ingraham  v.  Ward,  483 

Ingram  v.  Little,  51 

Ingram  v.  Morgan,  260,  918,  924 

Ink  v.  Rohrig,  211,  217 

Inness  v.  Agnew,  283,  359 

Innis  v.  \Villi»,  20,  21,  637,  751 

Ins.  Co.  v.  Marshall,  707 

Interborough  R.  T.  Co.  v.  Littlefield, 

871 

Internat'nl  Dev.  Co.  v.  Celemans,  340 
Irbey  v.  Wilson,    107 
Ire-ton  v.  Thoman.  329,  333 
I  rick  v.  Fulton,  955 
Irish  v.  Stceves.  563,  588 
Irvin  v.  Askew,  227 
Irvin  v.  Bleakley.  210,  213,  215,  553 
Irvin  v.  Stover,  563 
Irvine  v.  Irvine,  5,  II,  596,  599 
Irving  v.  Brownel!,  71 
Irving  v.  Campbell.  785,  794,  835 
I  ruin  v.   M:i  [>!«•-.  426 
IMMOS  v.  Skrainkn,  879.  915 
Isele  v.  Arlington   Sav.    Bank,   324 
Ishmnel  v.  Parker,  209 


Isler  v.  Eggers,  674 

Ison  v.  Saunders,  940 

Ivea  v.  Bank,  791,  810 

Ivea  v.  Kimball,  65 

Ives  v.  Niles,  362,  464,  729,  731 

Ives  v.  Pierson,    116 

Ivey  v.  McKennon,  110 

J. 

Jack  v.  Mc-Keo,  226 

Jackson  v.  Ashton,  753 

Jaekson  v.  Bowen,  141 

Jackson  v.  Bradford,  580.  595 

Jackson  v.  Bull,  5,  16,  591 

Jackson  v.  Cory,  47 

Jackson  v.  Conlin,  169 

Jackson  v.  Creek,  769,  807 

Jack-son  v.  Demon  t,  276 

Jackson  v.  Edwards,    94,    540,    887, 

916 

Jackson  v.  Fostender,  497 
Jackson  v.  Grim,  274,  366 
Jackson  v.  Hoffman.  306,  368,  569 
Jackson  v.  Hubbell,  524,  591 
Jackson  v.  Knight,  660 
Jackson  v.  Lignn,  193,  203,  882,  897, 

902,  912 

Jackson  v.  Littell,  571,  592 
Jackson  v.  Marsh,  461 
Jackson  v.  McCauley,  387,  404 
Jackson  v.  MoGinniss,   141 
Jackson  v.  Mills,  570 
Jackson  v.  Moncrief,  673 
Jackson  v.  Murray,    592,    799,    843, 

808 

Jackson  v.  Norton,  692,  919,  938, 
Jackson  v.  Peck,  591 
Jackson  v.  Roeevelt,   132,   133 
Jackson  v.  Saseaman.  21)9 
Jackson  v.  Schoonmaker,  46 
Jackson  v.  Sellirk,  394 
Jackson  v.  Summervillo,  567 
Jackson  v.  Turner,  22ti,   425,  451 
Jack  mm  v.  Vanderhey(k>n,   588,   589 
Jarkwm  v.  Waldron.  598 
Jaekson  V.  Walnh  L.  Co..  934 
Jackson  V.  Whitphead.  30.  32 
Jackson  v.  Wiiralow,    562,    591,    593, 

595 

Jackson  v.  Wright,  524 
Jacobs  v.  Fowler.  410,  803 
Jacobs  v.  Locke.  535 
Jacobs  v.  Morrison,  779 
Jarorks  v.  Gillian,  356 
Jacmvay  v.  (fault.  67,   73 
Jacques  v.  Vigo  Co..  521 
Jaeger  v.  Harr.  175.  793 
.Fames  v.  Cutler.  614 
James  v.  Haye*.  482.  715 
James  v.  Hooker,  563 


TABLE  OF  CASES 


liii 


[REFERENCES  ARE  TO  PAGES] 


James  v.  Jenkins,  331,  334 

James  v.  Lamb,  439 

James  v.  Lawrenceburgh  Ins.  Co.,  502 

James  v.  Lichfield,  532,  543 

James  V.  JSlcKennon,  942 

Jaines  v.  Myers,  95,  775,  801,  827 

James  v.  Warehouse  Co.,  328,  449 

James  v.  Shore,  912 

James  v.  Stiles,  48 

Jamison/  v.  Van  Auken,  811 

Jandorf  v.  Patterson,  941 

Janulewycz   v.    Quagliano,     12,     213, 

801,  883 

Jaquesi  v.  Esler,  492,  507,  697,  923 
Jaques  v.  Tomb,  331 
Jarboe  v.  McAtee,  814,  824,  878 
Jarden  v.  Lafferty,  475 
Jarman  v.  Davis,  765 
Jarrett  v.  Jarrett,   616 
Jarvis  v.  Aiken,  577 
Jasper  v.  Hamilton,  265,  266 
Jayne;  v.  Boisgerard,   142 
Jayne  v.  Brock,  662 
Jefferson  v.  Curry,  133 
Jeffrey  v.  Underwood,  57 
Jeffords-  v.  Dries-bach,   275,  289,   364, 

455,  459 

Jeffries  v.  Jeffries,  853,  862 
Jendvine  v.  Alcock,  903 
Jenkins  v.  Buttrick,  319 
Jenkins  v.  Fahig,  880,  905 
Jenkins  v.  Hamilton,    11,    204,    206, 

228 

Jenkins  v.  Hiles,  900 
Jenkiffs  v.  Hopkins,  287,  345,  380 
Jenkins  v.  Hunt,  58 
Jenkins  v.  Whitehead,  879,  881 
Jenkinson  v.  Ewing,  5TL7,  705 
Jenks  v.  Quinn,  97,  414 
Jenks  v.  Ward,  320,  322 
Jenness  v.  Parker,  484,  493 
Jenness  v.  Spraker,  638 
Jennings  v.  Brizendine,  604,  608 
Jennings  v.  Jenkins,  82,  83 
Jennings  v.  Jennings,  83 
Jerald  v.  Elley,  353 
Jerome  v.  Scudder,  524,  533,  535,  536 
Jervois  v.  Duke  of  Northumberland, 

767 
Jeter   v.    Glenn,   300,   337,   386,   453, 

459,  515 

Jett  v.  Farmers'  Bank,  47-1 
Jett  v.  Locke,  683 
Jewell  v.  Bannon,  490 
Jewell  v.  Porter,  562 
Jewett  v.  Fisher,  275,  300,  458 
John's1  Estate,  119 
Johns  v.  Frick,  122 
Johns  v.  Hardin,  376,  397,  462,  463 
Johns  v.  Nixon,  514 


Johnson's  Appeal,  730 

Johnson  v.  Branch,  562,  595 

Johnson  v.  Burnside,  676,  680 

Johnson  v.  Caldwell,  141 

Johnson  v.  Collins,  212,  312 

Johnson  v.  Crowley,  458 

Johnson  v.  Dorough,  657 

Johnson  v.  Farlow,  565 

Johnson  v.  Fuller,  52.5 

Johnson  v.  Gere,  492,  694,  923 

Johnson  v.  Hathorn,   714 

Johnson  v.  Herbst,   886 

Johnson  v.  Hollensworth,   299,   358 

Johnson  v.  Houghton,  911,  950 

Johnson  v.  Jarrett,  206 

Johnson-  v.  Jones,  484,  920,  933 

Johnson  v.  Johnson,  568,  599 

Johnson  v.  Long,   511 

Jchnson  v.  McGhee,  65 

Johnson  v.  Monell,  305 

Johnson  v.  Nichols,  30)9 

Johnson  v.  Nyce,  32(2,  390 

Johnson  v.  Oppenheim,   383 

Johnson  v.  Pryor,  259 

Johnson  v.  Purvis,  596 

Johnson  v.  Robertson,  141 

Johnison  v.  Smock,  37 

Johnson  v.  Sandhoff,   142 

Johnson  v.  Silsfill,  662 

Johnson  v.  Thompson,  308 

Johnson-  v.  Thweatt,  179 

Johnfeon-  v.  Tool,  40 

Johnson  v.  Walton,  303 

Johnson-  v.  Williamson,  703 

Johnson*  v.  Wilson,  924 

Johnson  v.  Wygant,  218 

Johnston  v.  Beard ,~  209,   22.1,  222 

Johnston  v.  Gallery,  853 

Johnston  v.  Garvey,  770,  835,  839 

Johnston  v.  Haines,  61 

Johnston  v.  Hougton,  23 

Johnston  v.  Johnston,  218 

Johnston  v.  Markle  Paper  Co.,  304 

Johnston  v.  Mendenhall,  40,   155 

Johnston  v.  Piper,   153 

Johnston  v.  Powell,  511 

Johnston  v.  Scott,  54 

Joiner  v.  Trust  Co.,  271,  361,  366,  735 

Jones  v.  Balsley,  459 

Jones  v.  Bland,  474 

Jones1  v.  Blumenstein,  127 

Jones  v.  Coffey,  111 

Jones1  v.  Cohen,  712 

Jones  v.  Cohitsett,  283 

Jones-  v.  Davis,  311 

Jones  v.  Fulghum,  496,  696 

Jones  v.  Gallagher,  27-3,  581 

Jones  v.  Gardner,  1,  38,  52,  322,  855 

Jones  v.  Haff,  38,  798 

Jones  v.  Hanna,  788 


liv 


TABLE  OF  CASES 


[REFERENCES  ARE  TO  PAGES] 


Jones  v.  Hazeltine,  275,  284 

Jones  v.  Jones,  461,  472 

Jones  v.  Keen,  254 

Jones  v.  King,  562 

Jones  v.  Mauley,   142 

Jones  v.  Noe,  483 

Jones  v.  Phillips,  38,   153 

Jones  v.  Richmond,  386,  415 

Jones  v.  Bobbins,  896 

Jones  v.  Shackelford,  533 

Jones  v.  Shay,  434 

Jones  v.  Smith,  141 

Jonea  v.  Sfaanton,  924 

Jones  v.  Sweet,  625 

Jonea  v.  Tarver,  51 

Jonea  v.  Taylor,   197,  655,  798,   873, 

891 

Jones  v.  Waggoner,  461,  923 
Jonea  v.  Warner,  278,  281,  283 
Jones  v.  Warnock,  113 
Jonea  v.  Wood,  714 
Jopling  v.  Dooley,  911 
Jordan  v.  Blackmore,  292 
Jordan  v.  Chambers,  569 
Jordan  v.  Deaton,  521 
Jordan  v.  Eve,  328 
Jordan  v.  Poillon,  822,  831 
Joslyn  v.  Schwend,  896 
Joslyn  v.  Taylor,  38 
Josselyn  v.  £dwards,  268 
Jourdain  v.  Jcnmkiin,  356 
Joyce  v.  Hagelstein,  195 
Joyce  v.  Ryan,  707,  734 
Joyce  v.  Shaffer,  213,  664 
Joyer  v.  Shafer,  892 
Joyner  v.  Cri«p,  542 
Joyner  v.  Smith,  309,  471 
Judd  v.  Randall,  299 
Judice  v.  Kerr,  126 
JudLson  v.  Wass,  38,  637,  654,  864 
Julian  v.  Beal,  144 
Junk  v.  Barnard,  204,  226 
Juvenal  v.  Jackson,  729 
Justice  v.  Button,  866 
Justus  v.  Button,  21 


Kahn  v.  Cherry,  325,  330 

Kahn  v.  Mount,  so:,,  814,  858 

Kaiser  v.  Earhart.  582 

Kane  v.  Rnrthwirk.  837 

Katw  v.  Fiwher,  456 

Kane  v.  Hood,  218 

Kane  v.  Jones,  195 

Kane  v.  Rippey,  646,  789 

Kane  v.  Sanger,  412,  416,  416,  417 

Dunmyer,  588, 
400,  441 

Kapiolani  K»t.  v.  Atcherly,  402 
Kaplan  v.  Bergmann,  868 


Karahdin  v.  Lockett,  790 

Kares  v.  Covell,  657 

K  ark  IT  v.  Haverly,  215,  850 

Karsell  v.  Cooper,  836 

Katz  v.  Henig,  13 

Katz  v.  Kaiser,  866,  869,  871 

Kauflfelt  v.  Leber,  160,  161 

Kauffman  v.  Walker,  92 

Kavanagh.  v.  Kingston,  419 

Keady  v.  Martin,  589 

Kearney  v.  Hogan,  852 

Keater  v.  .Ferguson,  897 

Keating  v.  Gunther,  203,  913 

Keating  v.  Korfhage,  326 

Keating  v.  Price,  907,  912,  914 

Kebler  v.  Cureton,  516,  659 

Keeble  v.  Bank,  899 

Keeler  v.  Wood,  433,  453,  460 

Keep  v.  Simpson,  899 

Keepers  v.  Yooum,  198,  850,  913 

Keepfer  v.  Force,  619 

Keifer  v.  Roger,  257 

Keim  v.  Lindley,  23,  525,  528 

Keim  v.  Sachs,  868,  869 

Keitel  v.  Zimmerman,  214,  847 

Keith  v.  Silberberg,  75 

Keith  Lumber  Co.  v.  Oil  Co.,  594 

Keller  v.  Asliford,  308 

Kellogg  v.  Chapman,  607 

Kellogg  v.  Ingersoll,  329 

Kelloinr  y.   Malin,   .'WO,   343,   348 

Kellogg  v.  Robinson.  .T2  I 

Kellogg  v.  Wood,  422,  423,  571 

Kellum  v.  Ins.  Co.,  277,  321 

Kelly  v.  Allen,  685 

Kelly  v.  Bibb,  531 

Kelly  v.  Bradford,  153 

Kelly  v.  Brmver,  914 

Kelly  v.  Calhoun.  64,  66 

Kelly  v.  Dutch  Church,  380,  385,  428, 

443,  469 

Kolly  v.  Jenness,  569 
Kelly  v.   Ken-haw.  671 
Kelly  v.  Tx>we.  343,  404,  508 
Kelly  v.   Price,  445 
K.-lly  v.  R.  Co.,  2.r>0 
Kelly  v.  Kiley,  740 
Kelly  v.  Solan.  126 
Kelly  v.  Turner,  609 
Kelly  v.  Wiseman,  469 
Kelaey  v.  Cr<nvt1»-r.  171,  210 
Kelse'y  v    Remer,  312.  346 
K*bo  v.   Lnrillard,  8*2 
Kemery  v.  Taylor,  574 
Kemp  v.   I'enna.  R.  Co.,  718 
Kemp  v.  Porter.  63 
K.-mper  v.  Walker.  ft84.  907 
Kfmpner  v.  Colin.  227 
Kempner  v.  Lumber    Co.,    368,    426, 

446,  447 


TABLE   OF   CASES 


Iv 


[REFERENCES  ARE  TO  PAGES] 


Kempshall  v.  Stone,  528 
Kendall  v.  Crawford,  832 
Kenefick  v.  Shumaker,  769 
Kennedy's  Appeal,  731 
Kennedy  v.  Dennstadt,  217 
Kennedy  v.  Embry,  513 
Kennedy  v.  Gramling,  806 
Kennedy  v.  Holl,  826 
Kennedy  v.  Johnson,  259 
Kennedy  v.  Koopman,  844,  904 
Kennedy  v.  McCartney,  572 
Kennedy  v.  Newman,  298,  318 
Kennedy  v.  Price,  67 
Kennedy  v.  Smith,  657 
Kennedy  v.  Woolfolk,  200 
Kennison  v.  Taylor,  460 
Kenniston  v.  Blakie,  77 
Kenny  v.  Hoffman,  153,  267,  861,  868, 

889 

Kenny  v.  Norton,  281,  282 
Kent  v.  Allen,  784 
Kent  v.  Cantrall,  300,  353 
Kent  v.  Chalfant,  161 
Kent  v.  Harcourt,  565 
Kent  v.  Watson,  592 
Kent  v.  Welch,  385 
Ky.  Distilleries   Co.  v.   Blanton,   883 
Kentucky  Dist.,  &c.,  Co.  V.  Warwick 

Co.,  169,   195 

Kerchev.al  v.  Triplett,  572 
Kern  v.  Kloke,  387 
Kerney  v.  Gardner,  655 
Kerr  v.  Kitchen,  260,  729,  730,  735 
Kerr  v.  Purdy,  215 
Kerr  v.  Read,  637 
Kerr  y.  Shaw,  397,  403 
Kerrigan,  v.  Backus,  851 
Kerst  v.  Ginder,  213 
Kesisler  v.  Pruitt,  211 
Kester  v.  Rockel,  904 
Ketchum  v.  Evertson,    149,    154,   629 
Ketchum  v.  George,  120 
Ketchum  v.  Stout,  536 
Ketchum  Coal  Co.  v.  Coal  Co.,  574 
Keuchenbeiser  v.  Beckert,  111 
Kevil  v.  Wilford,  2:60 
Key  v.  Hanson,   481,   501,   503 
Key  v.  Jennings,  484,  908,   926 
Key  v.  Key,  240,  241 
Keys,   Etc.,   Realty   Co.   v.   Trustees, 

417,  424 

Keyse  v.  Heydon,  31 
Keyse  v.  Powell,  22 
Keyton  v.  Bradford,  934 
Kibler  v.  Cureton,  921 
Kidder  v.  Bork,  389 
Kiefer  v.  Roger,  247,  260,  264 
Kien  v.  Stukely,  889 
Kiger  v.  McCarthy,  241 


Kilborn  v.  Johnson,  67'5 

Kilgore  v.  Pedin,  130 

Killen  v.  Funk,  329 

Killilea  v.  Douglas,  336,  340,  352 

Kilpatrick  v.  Barren,  785,  840 

Kilpatrick  v.  Stozier,  621 

Kimball  v.  Bell,   651,   894 

Kiraball  v.  Blaisdell,   581 

Kimball  v.  Bryant,  284,  448 

Kimball  v.  Grand  Lodge,  380,  381 

Kimlball  v.  Johnson,  61 

Kimball  v.  Saguin,  403,   720,  747 

Kimball  v.  Schaff,  570 

Kimball  v.  Semple,   62,  66,  359,  367, 

596 

Kim<ball  v.  West,  481,  584,  690,  697 
Kimball  v.  Tooke,  770 
Kimberlin  v.  Templeton,  315 
Kimlbrough  v.  Burton,  126> 
Kime  v.  Kime,  210 
Kimmel  v.  Benna,   592 
Kimmel  v.  Scott,  909' 
Kinoaid  v.  Britain,  271,  272,  275,289 
Kindley  v.  Gray,  878 
King  v.  Breasie,  364,  429,  489 
King  v.  Connor,  884 
King  v.  Doolittle,  959 
King  v.  Gil-son,  272,  584,  586 
King  v.  Gunnison,  113,  731 
King  v.  Jones,  274,  476 
King  v.  Kerr,  345,  360,  402,  417,  424, 

446,  451,  467,  468; 
King  v.  Kilbride,  307,  397 
King  v.  King,  197 
King  v.  Knapp,  253,  7'.99,  914 
King  v.  Pyle,  239 
King  v.  Rea,  589 
King  v.  Savery,   194 
King  v.  Thompson,  763 
King  v.  Union  Tr.  Co.,  340,  342,  346 
King  v.  Wilson,  907 
Kingdon  v.  Nottk,  274,  283,  415 
Kingsbury  v.  Milner,   922 
Kingsbury  v.  Smith,  456 
Kingsbury  v.  Stoltz,   131 
Kingston  Bank  v.  Ettinge,  126 
Kinney  v.  Jones,  879 
Kinney  v.  Knoebel,   140 
Kinney  v.  McCulloch,  403 
Kinney  v.  Norton,  404 
Kinney  v.  Watts-,  425,  443 
Kinports  v.  Rjawson,  934,  936 
Kinsman  v.  Loomis,  575,  592 
Kintrea  v.  Preston,  23 
Kip  v,  Hirsh,  832,  866,  867 
Kirby  v.  Estill,  397,  462 
Kirk  v.  Zell,  606,  617 
Kirkendall  v.  Mitchell,  149,  357 
Kirkland  v.  Little,  217,  792 


Ivi 


TABLE  OF  CASES 


[REFERENCES  ARE  TO  PAGES] 


Kirkland  v.  Wade,  114,  722 
Kirkpatriek    v.    Downing,    228,    243, 

762,  763 

Kirkpatrick  v.  Pcarce,  318,  353 
Kirkpatriek  v.  Miller,  403 
Kirk  wood  v.  Lloyd,  805 
Kirtland  v.  Pounsett,   196 
Kirtz  v.  Peck,  690 
Kis-ter  v.  Pollak,  49,  669 
Kitzmun  v.  C'arl,  447 
Kleinberg  v.  Kinealy,  471 
Kley  v.  Geiger,  312 
Kling  v.  Realty  Co.,  794,  847 
Klopp  v.  Moore,  160,  161 
Klumpki  v.  Baker,  562 
Knadler  v.  Sharp,  283,  346 
Knapp  v.  Foley,  279,  284.  289 
Knapp  v.  Lee/ 38,  484,  500,  662 
Knapp  v.  Marlboro,  469 
Knatchbull  v.  Grueber,  195,  201,  753, 

915 

Knedler  v.  Lang,  811,  812 
Knepper  v.  Kurtz,  397 
Knight  v.  Clinkscales,  314 
Knight  v.  Ooleman,  512 
Knight  v.  Crook ford.  212 
Knight  v.  Maloney,  82J> 
Knight  v.  Schroader.  3S6,  739 
Knight  v.  Thayer,  577,  589 
Knight  v.  Turner,  481 
Knipe  v.  Palmer,  158.  161 
Kniseley  v.  Leath,  702 
Knowles  v.  Kennedy,  584 
Knowles  v.  Temple.'  309,  317 
Knowlton  v.  Amy,  253 
Knox  v.  Desplain,   794 
Knox  v.  McMurray.   108 
Knox  v.  Spratt.  542 
Koch  v.  Husti*,  368 
Koch  v.  Streirter,   192,  825,  841,  849 
Koopke  v.  Winterfleld,  297,  394 
Koger  v.  Kane,   500,    507,   918,    934, 

936 

Koliner  v.  Higgins,  41 
Kolher  v.  K  utter,  87 
Kohlrep  v.  Ram,  785,  835 
Kopp  v.  Kopp.  801 
Kornegay  v.  Everett,  610,  955 
Kortz  v.  Carpenter,  391 
KoMhland  v.  Spring,  852 
Kostenbader  v.  .Spoils,   797 
KoKtenbader  v.  Pierce,  33/) 
Kountze  v.  Hollrmith.  198.  853 
Krah  v.  Waiwmer,  76,  853,  854 
Kramer  v.  Carter,  4O2,  403,  404,  407, 

MM 

Kramer  v.  Ricke.  715 
Kraemer  v.  Adelsbergcr,  784 
KratiHe  v.  Kniu-o.  20 
Kreibich  v.  Mart*,  194,  802 


Kreinbring  v.  Mathews,   319,  322 

Kreitsch  v.  Mertz,  894 

Krekeler  v.  Aulbach,  853,  861 

Krewson  v.  Cloud,  264 

Krotzer  v.  Clark,  852 

Kruger  v.  Adams,  41 

Krumm  v.  Beach,  238,  248,  251 

Kuhn  v.  Freeman,  384,  909 

Kuhner  v.  Parker,  485,  497 

Kuhn's  Appeal,  727 

Kullman  v.  Cox,  780 

Kuntzinan  v.  .Smith,  277,  386,  410 

Kuratli  v.  Jackson,  540 

Kurtz  v.  Hollingshed,  46 

Kutz  v.  McCune,  324,  327,  331,  334 

Kutzinger  v.  Knering,  905 

Kyle  v.  Fauntleroy,  451,  453,  456 

Kyle  v.  Kavanaugh,   154,  950 

Kyle  v.  Febley,  304,  954 

L. 

Lacey  v.  Marman,  292 

Lacey  v.  McMillan,  199 

Ladd  v.  Blunt,  144 

Ladd  v.  Montgomery,   33.6 

Ladd  v.  Myers,  309 

Ladd  v.  Noyes,  280,  324 

Ladd  v.  Weiskopf,  777,  782,  786 

Laderoute  v.  Cliale.  308 

Ladue  v.  Cooper,  335 

I.adm-,  In  re,  840 

Laevison  v.  liaird,  -507 

Lofargw  v.  Matthews,  482,  678 

Lafferty  v.   Milligan,  314 

Laidlaw  v.  Organ,  252 

Lake  v.  Urutton,  256 

L:iki-  Krie  L.  Co.  v.  Cliilin-ki.  794 

Lake  Erie,  etc.,  R.  Co.  v.   Whitham, 

72 

Lallando  v.  West,  32* 
Lally  v.  Holland,  622 
Lalor  v.  Tucker,  812 
I^amb  v.  Baker,  390 
Lamb  v.  Burbank,  477 
Lamb  v.  Danforth,  275.  379,  408 
Lamb  v.  De  Vault,  649 
Lamb  v.  James,  441,  662,  713 
Lamb  v.  Kann,  594 
I>am1>  v.  Smith,  739 
Lamb  v.  Wakefielrl.  367,  594 
Umb  v.  WilliH.  380 
I«iiii1xl<>ii  v.  Sharp,  58 
Umlx-rt  V.  Ktrtes.  395.  400.  426 
I^amernon  v.  Marvin,  485.  502 
Lamkin  v.  ReeHC,  85,  118,  6O4,  950 
Liiiiinii.t   v.  Bowley,  955 
I^amotte  v.  Stcidinger,  796 
Lamprey  v.  Pike.  581 
Lamprey  v.  Whitehead,  803 
Ijimpton  v.  t'^her,   118,  662 


TABLE  OF  CASES 


Ivii 


[REFERENCES  ARE  TO  PAGES] 


Lancaster  v.  Roberts,  883 
Lancaster  v.  Wilson,  93,  109,  110 
Lancoure  v.  Dupre,  226,  763,  764 
Land  Co.  v.  Hill,  690,  924 
Land  Co.  v.  North,  386 
Landford  v.  Dunkton,  119 
Landsdowne     V.      Landsdowne,      955, 

957,   960 

Landt  v.  Mayor,  296 
Lane  v.  Bommelman,  97 
Lane  v.  Fury,  401,  406,  460 
Lane  v.  Latimer,  755 
Lane  v.  Patrick,  712 
Lane  v.  Richardson,  311,  340 
Lane  v.  Tidball,  500,  937 
Lane  v.  Woodruff,  418 
Lane  v.  Ziemar,  52 
Lang  v.  Heden'berg,   1&5,  218 
Lang  v.  Waring,  122 
Lange  v.  Jones,  534,  934 
Langenburg  v.  Dry  Goods  Co.,  283 
Langford  v.  Pitt,  *879 
Langford  v.  Selnies,  22 
Langlow  v.  Cox,  170 
Langsdale  v.  Xicklaus,  316 
Langton  v.  Marshall,  68 
Lanier  v.  Foust,  513 
Lanier  v.  Hill,    259,    268,    660,    940, 

961 

Lanigan  v.  Kille,  442,  443 
Lanitz  v.  King,  199 
Lansing  v.  Quackenbush,   127 
Lansing  v.  Van  Alstyne,  389,  401 
Lant  v.  Norris,  358 
Lanyon  v.  Chesney,   536 
Large  v.  McLain,  300 
Larkin  v.  Trammell,  391,  446 
Lasswell  L.  &  I.  Co.  v.  Langdon,  290, 

456 

Latham,  v.  Morgan,   926 
Lathers  v.  Keogh,  316,  317 
Lathrop  v.  Collieries    Co.,    212,    527, 

534,  535 

Latimer  v.  Capay  Val.  Co.,  199 
Latimer  v.  Wharton,  88 
Lattin  v.  Vail,  485 
Lauer  v.  Lee,  627,  631 
Laughman  v.  Thompson,  106,  117 
Laughery  v.  McLean,  482,  517 
Laurens  v.  Lucas,  770 
Lavender  v.  Lee,  604 
Laverty  v.  Moore,  799 
Law  v.  Grant,  250 
Law  v.  Hyde,  620 
Lawless  v.  Collier,  283,  293,  439,  451, 

690,  699 

Lawless  v.  Evans,  294 
Lawless  v.  Mansfield,   549 
Lawrence  v.  Beaubein.  956,  957 
Lawrence  v.  Chare,  227 


Lawrence  v.  Dale,  14,  38,  202 

Lawrence  v.  Montgomery,  335 

Lawrence  v.  Parker,  49 

Lawrence  v.  Simonton,  219 

Lawrence  v.  Sinter,  413,  416 

Lawrence  v.  Taylor,  38,  212,  647 

Lawrenson  v.  Butler,  537,  545 

Lawton  v.  Howe,  439,  946 

Lazarus  v.  Coal  Co.,  727 

Lazzell  v.  Keenan,  538,  855 

Leach  v.  Forney,   539 

Leach  v.  Johnson,   192 

Leach  v.  Leach,  855 

Leach  v.  Rowley,  663,  790 

Leahy  v.  Hair,  773 

Leal  v.  Terbush,  484,  502 

Leary  v.  Durham,  150,  379,  398,  482, 

503 

Learned  v.  Riley,  65 
Leather  v.  Poultney,  466,   467,   469 
Lebanon  S;av.  Bank  v.  Hollenbeck,  623 
Leddy  v.  Enos,  300,  387,  406 
Ledowski  v.  Rubin,   340 
Lee  v.  Clary,  562 
Lee  v.  Dean,  233,  239,  747,  726 
Lee  v.  Foard,  37 
Lee  v.  Gardiner,   142 
Lee  v.  Lee,   822,   840 
Lee  v.  Porter,  551 
Lee  v.  Russell,  224 
Leerburger  v.  Watson,  536,   869,  870 
Leet  v.  Gratz,  402,  439,  442 
Leffingwell  v.   Elliott,   402,  439,  440, 

459,  460 

Leffingwell  v.  Warren,  805 
Leflore  Co.  v.  Allen,  569 
Leftwich  v.  Neal,  70 
Leggett  v.  McCarty,  498,  696,  923 
Leggett  v.  Mut.  Ins.  Co.,  245 
Leiker  v.  Henson,  534 
Leinhardt  v.  Kalcheim,  853 
Leipold  v.  Epler,  305 
Leird  v.  Abernethy,  918,  924 
Lejeune  v.  Barrow,  450 
Lejeune  v.  Herbert,  743 
Leland  v.  Stone.  ^04,  431 
Lemle  y.  Barry,  216,  872 
Lemly  v.  Ellis,  446 
Lemon  v.  Rogge,  842 
Le  Moyne  v.  Quimby,  116 
Lenehan  v.  College,  825 
Lennig  v.  Land  Co.,  300,  387 
Lenz  v.  Hobart,   388 
Leo  V.  Deitz,  540 
Leonard  v.  Austin,  489,  508 
Leona-1  v.  Bates,  149,  217 
Leonard  v.  Gary,  392 
Leonard  v.  King,   545 
Leonard  v.  Mills,  615 
Leonard  v.  Pitney,  719,  746 


Iviii 


TABLE  OK  CASKS 


[REFERENCES  ARE  TO  PAGES] 


Leonard  v.  Woodruff,  803 

Lerfing  v.  Seelig,  314 

Lernmn  v.  Hulmer,  805 

Le  Roy  v.  Beard,  159 

Leroy  v.  Harwood,  790 

Lese  v.  Metzinger,  825 

Lesesne  v.  Witfe,  878 

Leslie  v.  Slusher,  45 

Lesley  v.  Morris,  775,  853,  899 

LeWnioh  v.  Sellers,  172,  195 

Lessley  v.  Bowie,  514,  515,  516 

Letcher  v.  Woodson,  226 

Lethbridge  v.  Kirkman.  30,  788 

Lethbridge  v.  Mytton,  301 

Lett  v.  Brown,  670,  678 

Levitzky  v.  Canning,  382,  458 

Levy  v.'  Bond,  382 

Levy  v.  Iroquois  Bldg.  Co.,  818 

LevV  v.  Hill,  857,  870 

Levy  v.  Knepper,  529 

Lew  v.  Newman,  827 

Levy  v.  Riley,  117,  142 

Lewenberg  v.  Johnson,  008 

Lewine  v.  Gerardo,   812 

Lewis  v.  Baird,  560 

Lewia  v.  Bibb.  296 

Lewis  v.  Bond,  32 

Lewis  v.  Bosk  ins,  549 

Lewis  v.  Braithwnite,  22 

Lewia  v.  Cook,  415 

Lewi*  v.  Coxe,  843,  855 

Lewis  v.  Davis,  481 

Lewis  v.  Dav,  41 

Lewis  v.  Gale,  529 

Lewis  v.  Herndon.  807 

Lewis  v.  Jones,  266 

Lewis  v.  Lee,  227 

Lewis  v.  Lewis,  390,  620 

Lewis   v.    McMillen,    503,    630,    644, 

663,  671,  683 

Lewis  v.  Morton.  483,  695,  702 
Lewia  v.  (Mote,  945 
Lewia  v.  Ridge,  281 
Lewis  v.  Rom,  436 
Lewia  v.  West.  48ft 
Lewis  v.  White.  18.  41,  629.  642,  750 
Lewi*  v.  Woodbine  S.  Bnnk,  201,  863 
Ley  v.  Huher.  890 
Leze  v.  Metfinger,  825 
LiM>y  v.  Hutehinwnn.  410 
Liber  v.  Parson,  433 
Liddell  v.  Sims.  751 
T/ieber  r.  Nicholson,  172 
Liebling  v.  Renfer,  667 
Liehman  v.  Hall,  854 
Lift*  AaHoriation  v.  Siddall,  194 
Light  foot  v.  Brower,  678 
I.ighly  v.  Shorb,  727,  72»,  730 
Litipnthal  v.  Rierkamp,  198 
Lillard  v.  Ruckers,  47 


Linderman  v.  Berg,  463 

Lincoln  Sav.  Bank  v.  Schneider,  808 

Lincoln    Tr.    Co.    v.    Williams,    Etc., 

Corp.,  854 

Lindenberger  v.  Rowland,  317 
Lindeman  v.  Pinson,  43 
Lindley  v.  Dakin,  277,  321 
Lindley  v.  Lukin,  237 
Lindsay  v.  Eastwood,  315 
Lindsay  v.  Freexhnan,  585,  597 
Lindsey  v.  Hambrecht,  770 
Linlcous  v.  C'ooper,  828 
Linn  v.  Barkey,   149 
Linn  v.  McLean,  799,  901 
Lin«cott  v.  Mozeman,  173,  810 
Liiraey  v.  Ferguson,  678 
Linsey  v.  Ramsey,  562 
Linton  v.  Allen,  *35,  308,  567,  664 
Linton  v.  Hichborn,  860 
Linton  v.  Porter,   116 
Lister  v.  Batson,  226 
Lippincott  v.  Wikoff,  777 
Little  v.  Allen,   357,   949 
Little  v.  Dodge.  70 
Little  v.  Paddleford,  37,  647 
Little  v.  Thropp,  489,  725 
Littlefleld  v.  Getchell,  413 
Littlefield  v.  Tinsley,    1ST,   655,   759, 

764,  798.  830 
Littleton  v.  Green.  364 
Lively  v.  Rice,  308 
Livingston  Bank  v.  Sailing.  305 
Livingston  v.  Iron   Works.  276 
Livingston  v.  McDonald,  62 
Livingston  v.  Short,  932 
Lloyd  v.  Farrell,  154,  743 
Lloyd  v.  Griffiths.  152 
Lloyd  v.  Jewell.  38,  500 
Lloyd  v.  Kirk  wood.  Ill 
Lloyd  v.  Quimby,  157,  311,  338,  418, 

434,  440 
Lloyd   v.    Sandusky.    294,    425,    437, 

438,  444 

Locke  v.  Furze.  22-"..  443 
Ixx-ke  v.  Hale.  320 
Locke  v.  White.  592.  596 
Locklinrt  v.  Ferrcy.  523,  78I> 
Lockhart  v.  Smith,  785 
Lockmnn  v.  Reilly,  787.  830 
Lockridge  v.  Footer.  202,  253,  745 
Lock-wo<xl  v.  Gilson.  160.  161 
Lockwood  v.  Hannibal  &.  St.  J,  R,  Co., 

219,  899 
Ixx-kwood    v.    Sturtevant,    157,    272, 

274.  280.  418 
I.OJMM  v.  Hull.  814.  891 
l.'^'jin  v.  Moore.  562,  565 
Ixigan  v.  Neil  I.  562 
Fx>pan  v.  St*-*1!?.  562 

v  Case.  136 


TABLE  OF  CASES 


lix 


[REFERENCES  ARE  TO  PAGES] 


Logue  v.  Atkinson,  571 

Loiseau  v.  Threlstad,  445 

Lombard  v.  Kies,  856 

London  Bridge  Acts,  158 

Long  v.  Brown,  545,  604,  950 

Long  v.  Chandler,  540,  541,  855 

Long  v.  (Coal  &  Iron  Co.,  807 

Long  v.  'Crews,  61,  65 

Long  v.  Hartwell,   699 

Long  v.  Howard,  461 

Long  v.  Israel,  5€7,  696,  934 

Long  v.  Miller,  524,  525 

Long  v.  Moler,  303,  31,1,  312,  316 

Long  v.  Saunders,  670 

Long  v.  Wheeler,  454,  460 

Long  v.  Waring,  84,   122 

Long  v.  Weller,  82 

Longworth  v.  Taylor,   774 

Loomis  v.  Bedell,  367,  394,  399,  401, 

439,  460 

Loomis  v.  Pingree,  593.  599 
Loomis  v.  Wadhams,  227 
Looney  v.  Reeves,  427,  431,  432 
Loos,  In  re,  134 
Lord  v.  Stephens,   792 
Lot  v.  Thomas,  272,  275,  281,  571 
Lothrop  v.  Snell,   385,   484 
London  v.  Robertson,   114 
Loucks  v.  Taylor,  266 
Lougher  v.  Williams,    379 
Loughran  v.  Ross,  278 
Louisville  Gas  Co.  v.  Starin,  842 
Louisville,  etc.,  R.  Co.  v.  Stone  Co., 

753 
Lounsibery      v.      Locander,    37,    150, 

382/533,  537 
Lounsbery  v.  'Snyder,   382 
Lourance  v.  Robertson,  425,  428,  436 
Love  v.  Berry,  116 
Love  v.  Camp.  522.  542 
Love  v.  Cobb.  522 
Love  v.  Powell,  131 
Lovelace   v.    Harrington,    928 
Loveridge  v.  Coles,  219,  666 
JU>vett  v.  Saw  Mill  Assn.,  64 
Lovingston  v.  Short,  695,  757 
Lovitt  v.  Wilson,  803 
Lowdermilk  v.  Corpenning,   134 
Lowe  v.  Allen,  622 
Lowe  v.  Lush,  771,  776,  797 
Lowe  v.  Molter,  645 
Lowe  v.  Warehouse  Co.,  319 
Lowell  v.  Daniels,   588 
Lowndes  v.  Chisholm,   956,  957 
Lowery  v.  Nicols,  895 
Lowery  v.  Yawn,  395 
Lowery  v.  Tilleny,  274,  281,  284 
Lowry  v.  Brown,  710 
Lowry  v.  Cox,  235 
Lowry  v.  Croghan.  372 


Lowry  v.  Kurd,  690 

Lowry  v.  MuWrow,  840 

Lowther  v.  ComUh,  425 

Lowther,  Etc.,  Co.  v.  Gunnell,  904 

Loyd  v.  Malone,  111 

Lucas  v.  Chapeze,  661 

Lucasi  v.  Scott,  539,  542 

Lucas:  v.  Wilcox,  445 

Luchetti  v.  Frost,  212 

Luckett  v.  Triplett,  922,  932 

Luckett  v.  Williamson,  37,   533,  812, 

879,  904 

Luckie  v.  McGlasson,  263,  268 
Lucy  v.  Lexington,  274,  281 
Ludlow  v.  Gilman,  497 
Ludlow  v.  O'Neill,  836 
Ludlow  v.  Vani  Ness,  846 
Ludwell  v.  Newman,    391 
Ludwick  v.  Huntzinger,  714,  725,  727 
Lukens  v.  Jones,  728 
Lukens  v.  Nicolson,  471 
Lull  v.  Stone,  36,  38,  40 
Lumpkin  v.  Blewitt,  319,  446 
Lundgren  v.  Kerkow,  398 
Lunsford  v.  Turner,  404 
Lurmian  v.  Hubner,  805 
Luse  v.  Dietz,   890,   891,  892 
Lutweller  v.  Linn  ell,   221 
Lutz  v.  Compton,  898 
Lydall  v.  Weston,   175,  769,  776 
Lyle  v.  Earl  of  Yarborough,  900 
Lyles  v.  Kirkpatrick,  806,  878,  895 
Lyman  v.  Gedney,  816 
Lyman  v.  Stroudburgh,   801 
Lynch  v.  Baxter,    113,    121,    756 
Lynch,  Ex  parte,  459 
Lvnch  V.  Livingston,  61 
Lynch  V.  Merc.  Trust  Co.,  13 
Lyncn  v.  Rogers,  7'98,  836 
Lyndon  Lumber  Co.  v.  Sawyer,  151 
Lyon  v.  AnablCj  740 
Lyon  v.  Day,  650 
Lyon  v.  Kara,  48 
Lyon  v.  McCurdy,  119 
Lyon  V.  O'Kell,  650 
Lyon  V.  Richmond,  954,  960 
Lyons1  v.  Fitzpatrick,   705 
Lyons  v.  Pyatt,  628,  894 
Lyons  v.  Woman's  League,  244 
Lysney  v.  Selby,  746 

M. 

Mabie  v.  Matteson,  160 
Mabry  v.  Brown,  842 
Macoaw  v.  Crawley,   806 
Mack  v.  Patchin,  226,  442 
Mackey  v.  Ames,   544,   884,   896,   897 
Maokey  v.  Collins,  386.  514 
Mackey  v.  Harmon,  326,  348 


Ix 


TABLE  OK  CASES 


.Mackintosh  v.  Stewart,  274,  iiTC,  370, 

3i>0 

.Madden  v.  Land   Co.,   429 
.Madden  v.  Leak,  938 
Madely  v.  liouth,  30 
Meieder  v.  Carondelet,   372,  471 
Magaw  v.  I^athrop,  197,  880 
.Magee  v.  Ilallett,  500 
Magec  v.  .McMillan,    313,    685,    923, 

933 

Maginess  v.  Fallon,  201,  778,  805 
Maguire  v.  Marks,   128,  144 
Maguiri'  v.  Kiggin,  2#3 
Mahoney  v.  Allen,   87,   b65 
.Malioney     v.     S.IIUH-.  3d! 
.Mahoiiy  v.  Robbins,  483 
Main,  Sir  Anthony's-  Case,  213 
.Maitlcn    v.    Mai  t  ten,    3OO,    3<J8,    344, 

352 

Major  v.  Dunnavant,  445 
Mi-jors  v.  Brush,  65G,  703,  734 
Malins  v.  Freeman,  3-3 
Mallard  v.  Allretl,  667 
Malloy   v.   Foley,   21 
Malsbury  v.  Ja-cohus,  349 
Maltby  v.  Thews,  707 
Manuiian  v.  Smith,  432 
Mandel  v.  H«ws.  051 
Mandigo  v.  Con-way,  330 
Maner  v.  Washington,   510,   734,   690 
Maney  v.   Porter,  205 
Mangonaro  v.  Karl.  645 
Manifee  v.   MorriHon.   100 
Manitoba  Fish  Co.  v.  Booth.  18 
Mann  v,  Matthew*.  402.  404 
Mann  v.   Montgomery,   321 
Mann  v.  Young,  502 
Manser  v.  Buck.  30,  33 
Mansfield  v.  Wiles.  884,  897 
MariBon  v.  Krimfiekl  Manf'g  Co.,  916 
Manson  v.  Peaks.  593.  598 
Manf'g  Co.  v.  Zellm>r,  368 
Mnrbury  v.  Thornton,  386 
Marcus  v.  C'lark.  203 
Marden  v.  Leitn<»a<-h,  842 
Mardm  v.  Myers,  48 
Mnrg-raf  v.  Muir,  242,  529 
Mari*  v.  Ilcw,  304 
Markham  v.  Todd,  661 
Markland  v.  Crump,  416 
Mark  ley  v.  Swart/lnnder,   76 
Marks  T.  Hnllignn.  841 
Marlin  v.  Willink.  673 
>fnrple  v.  Scott.  320 
Mnr*h  v.  Fish.  300 
Mar«h  v.  Sheriff,  2G8 
Marnh  v.  Thompson.  483 
Mni>h  v.  Wyrknff.  88O 
Marshall  v.  'C.ilman.  202 
Marshall  v.  Cnldwell.  533 


Marshall  v.  Haney,  226 
Marshall  v.  Hopkins,  503 
M.ar.shall  v.  \\  eimuger,  2J4,  852 
Marston  v.  Bradsliaw,  72 
Mansion  v.  llobbs,  272,  280,  2U5,  298, 

3o2 

•Martin  v.  Anderson,  405,  703 
Martin-  v.  Atkinson,  237,  405,  550 
Martin  v.  Baker,  283 
Mturtin  v.  Chambers,  670 
Martin  v.  Colby,  43,  540 
Martin  v.  Cotter,  776,  8O5 
Martin  v.  Cowes,  462 
Martin  v.  Dollar,   «OM) 
Martin  v.  Dwelly,  '09,  398,  624,  7'12 
Martin  v.  Foreman,  509 
Martin  v.  Gordon,  420,  437 
Martin  v.  Hamlin,  833 
Martin  v.  Mammon,  295 
A  hurt  in  v.  Long,   2>>9,  425 
Martin  v.  Martin,  389 
Martin  v.  MjcCormick,  945 
Martin  v.  Merritt,  242,  539 
Martin  v.  Xixon,  612,  622 
Martin  v.  Porter,  825,  829 
Martin  v.  Wharton,  494 
Martinez  v.  Coggin,  740 
Martinson     v.  Rcqua,  873 
Marvin-  v.  Applegate,  7">5,  690 
Marvin  v.  Bennett,   950 
Maryland   Const.   Co.  v.  Kuper.   836, 

873,  880 

Mason  v.  Bovet,   14,  202,  756,  758 
Mason  v.  Bnx-k,  09,  10.,  73 
Mason  v.  ('nldwell.  160 
Mason  v.  {Vx>ksey.  395,  473 
Mason  v.  Ham,   101 
Mason  v.  Kellogg.  398,  46C 
Mason  v.  Lawing,  704 
Mason  v.  Moulder,  624 
Mason  v.  Swan.  703 
Mason  v.  Wait.  1 1<J 
Massov,  Siww*!-ioii  of,  121 
Massie  v.  CVaine.  277 
Ma*sio  v.  SoJ»a.«tiiin.  589,  933 
Mass-on  v.  Bovi-t.  14.  2<>2,  756,  758 
Mast  in  v.  Hall.-y.  78,  «1 1 
Malheiry  v.  Stewart.  454,  455,  459 
Mather' v.  Corliw.  362 
M:ither  v.  Lehnvin.   825 
>fathpr  v.  Stokeley,    290,    292,    294, 

4.r>l 

Miither  v.  Tremty.  394 
Mathoson  v.  Live  Stock  Co.,  169 
^rathis  v.  Oowley.  923- 
Miatney  v.  Rat  1  iff.  849 
Malta  v.  Henderson,  755 
Mattewon  v.  Vaughn,    394,    3fH>,    421, 

563.  693 
^fat thews  v.  Crowdcr,  924 


TABLE  OF  CASES 


fei 


[REFERENCES  ABB  TO  PAGES] 


Matthews  v.  Lightner,  772,  786,  788 

Matthews  v.  Livingston,  330 

Mattock  v.  Kinglake,  209 

Matthison  V.  Wilson,   215 

Maule  v.  Ashmead,  384 

Maupai   v.    Jackson,    215,    645,    858, 

882,  887 

Mauzy  v.  Flint,  338,  426,  483 
Mawson  v.  Fletcher,  532,  545 
Maxfield  v.  Bierbauer,   253,   655 
Max  Meadows  L.  &  I.  Co.  v.  Brady, 

935 

Maxwell  v.  Bank,  278,  392 
Maxwell  v.  Gregory,  637 
Maxwell  v.  Wilson,  363 
May  v.  Adams,  61'9 
May  v.  Arnold,   578 
May  v.  Ivie,  512 
May  v.  McKeenon,   62 
May  v.  Wright,  425,  429 
Mayer  v.  Adrian,  203 
Mayer  v.  Wooten,   361,  416,  446 
Mayes  v.  Blanton,  '637 
Maynard  v.  Moseley,  705,  706 
Mayo  v.  Babcock,  353 
Mayo  v.  Purcell,  203 
Mayo,  Etc.,  v.  Maxwell,  343 
Mayor  v.  Baggatt,  372 
Mayor  v.  Bulkley,  57 
Mayor  v.  Mabie,   371,  382,  407 
Maya  v.  Blair,  637,  810 
Mays  v.  Swope,   898 
McAbee  v.  Cribbs,  307 
McAdams  v.  Bailey,  563 
McAleer  v.  McMuflen,  623 
McAllister  v.  Harmon,   808,   818,  887, 

894 

McAllister  v.  Landers,  443 
McAlpine  v.  Reichenecker,   170,  639 
McAlpin  v.  Woodruff,  425,  435,  443, 

45« 

McAndrews  &c  Co.  v.  Bank,  329 
McAninch  v.  Laughlin,  953 
McArthur  v.  Oliver,  600 
McArthur  v.  Weaver,  838 
McBride  v.  Greenwood,  592 
McCa.be  v.  Kenny,  808 
McCaffrey  v.  Little,  84.  775,  777 
McCahill'  v.  Hamilton,  808,  822,  867 
McCall  v.  Hampton,  595 
McCall  v.  W7ilkes,  361 
MfeGann   v.   Edwards,   806,    824,   834, 

894,  898- 

McCartney  v.  King,  84,  127 
MeCarty  v.  Helbling,  167,  789 
McCarty  v.   Leggett,   280,   283,    340, 

584 

McCasland  v.  Life  Ins.  Co.,  611,  619 
Mr-Casky  v.  Graff,   145 
McCauley  v.  Moore,  196 


McClaugherty  v.   Croft,   557 
McClennan  v.  Prentice,  584,  692,  698, 

941 

McClerkin  v.  Sutton,  292 
McCloat  v.  Floral  Park  Co.,  221 
McClure  v.  Campbell,  303,  316 
McClure  v.  Gamble,  412,  425 
McClure  v.  McClure,  287,  425 
McClure  v.  Raben,  595 
McConnaughey  v.  Bennett,  391,  409, 

410,  411,  421 

McGomb  v.  Wright,  816,  900,  803 
McConihe  v.  Fales,  694 
McConnell  v.  Downs,  402 
McConnell  v.  Dunlop,  239,  533 
McConnell  v.  Little,   482 
McConnell  v.  Smith,    113 
McCool  v.  Jacobus,  38,  652 
McCord  v.  Massey,  322,  552 
McCorkle  v.  Rhea,  119 
McCormick  v.  Marcy,  426,  462 
McCoy  v.  Bayley,  612 
McCoy  v.  Lord,  405 
McCracken  v.  Flanagan,  99 
McCracken  v.  San      Francisco,      195, 

685,   686 

McCracken  v.  Wright,  591 
McCrady  v.  Brisbane,  283 
McCrath  v.  Myers,  498 
McCraven  v.  McGuire,  63,  7<2 
McCrillis  v.  Thomas,  400,  401 
McCroskey  v.  Ladd,  172,  810 
McCulloch  v.  Bauer,  204 
McCulloch  v.  Gregory,  779 
MeCullogh  v.  Boyd,  664 
McCullogh  v.  Estis,  85 
McCullough  v.  Cox,  503 
McCusker  v.  McEvoy,  577 
McCutchen  v.  Klaes",  482 
M«Daniel  v.  Bryan,   690 
McDaniel  v.  Evans,   193 
McDaniel  v.  Grace,     481,    501,     503, 

506 
McDaniels  v.  Flower  Brook  Mfg.  Co., 

51,  64 

McDennis  v.  Finch,  790 
McDermott  v.  Chatfield,  630,  788 
McDermott  v.  MeDerrnott,  815,  847 
McDill  v.  Gunn,  304 
McDonald  v.  Bach,    869,    892 
McDonald  v.  Beall,   247,   706 
McDonald  v.   Green,  484,   696,  933 
McDonald  v.  Hanson,  138 
McDonald  v.  Morgan,  48 
McDonald  v.  Vaughan,   484.   755 
McDonald  v.  Ward,  330,  387,  391 
McDonnell  v.  Downs,    462,    464 
McDonnell  v.  Milholland,   609 
McDonough  v.  Cross,  141 


Ixii 


TABLE  OF  CASES 


McDonough  v.  Martin,  367,  370 
McDougal  v.  Dixon,  844 
CilcDougal  v.  Schneider,  833 
McDowell  v.  Hunter,  397 
McDowell  v.  McKesson,  201,  628 
McDowell  v.  Milroy,  343,  51O 
McDunn  v.  Des  Moines,  690,  926 
McKlya  v.  Hill,  900,  924 
MbFadden  v.  Rogers,  619 
McFerran  v.  Taylor,  529 
McGary  v.   Hastings,   388,   394,   399, 

402,  406,  440 
McGavock  v.  BeH,  83 
McGarrahan  v.  Mining  Co.,  180 
McGee  v.  Carrico,  759 
.MrCiv  v.   Wallis,   142 
McGhee  v.  Ellis,  130,  144 
MeGhee  v.  Jones,   482,   657,  695,  925 
McGinnis  v.  Noble,  553,  554,  555,  726 
McGlyun  v.  Maynz,  853 
MoQoodwia  v.  Stephenson,  419 
McGoon  v.  Scales,  94 
Mt-Gowan  v.  Bailey,  718 
McGowan  v.  Meyers,  325,  332 
McGown  v.  Wilkins,  87,  92 
McGrane  v.  Kennedy,  775 
McGrew  v.  Harmon,  448 
McGuckin  v.  Milbank,  339,  340,  343 
M.-CufTey    V.    Hawes,   425,    430,    451, 

453* 

McGuire  v.  Bowman,  807 
MrlJuirp  v.   Kly,   131 
McIIany  v.  Schenck,  141 
IfeHargue  v.  Calchina.  332 
McHenry  v.  Yokum,  503,  505 
MHiid'ie  v.   Mi-mian.  ^77.  7  "•'.»,  0&1 
Mrlnerny  v.  Beck,    17 
Mdnnis    v.    Lyman,    380,    394,    581, 

583 

Mclntosh  v.  Smith,  126 
M'-Intyre  v.  Long,  707 
Ifblra  v.  Walker.  :.:. 
McKay  v.  Carrington,  759,  879,  880, 

887 
•ii  v.  Mill,  828 

•'•  v.  I1,  tin.   \ :\'.}.  454,  458,  460 
M<  Kee  V.  Brandon,  227 
M<-Kei-n   v.    I'.raiiplaii.l,  7.~>l>,  676 
M.-KfMinan  v.   Dou^liman,  '.W3,  312 
M-  Killip  v.  PoHt.  400 
M'-Koniicy  v.  Sett  !• 
McKinney  v.  .Tiun--.. 
iM.  Kinncy  v.  Watt,,  237,  911 
Mt-KiiiJiio  v.  StnJTi.nl,  64 
MrKluroy  v.  Tnlar.-.  140 
M.-Koy  v.  C'hilM,  662 
Md.ain  v.  OonHer, 

in  v.  Alli^.n.  368 
McLane  v.  Petty,  810 


TO  ?AGESj 

McLarin  v.  Irvin,  681,  760,  8*10 
McLaughlin  v.  Brown,  808 
Mclaughlin  v.  D,aniel,  144 
MtLaughlin  v.  Miller,  316 
McLaurin  v.  MvLaurin,    110 
^IcLaurin  v.  Parker,  659 
Aklx'an  v.  Connepton,  511 
McLean  v.  Webster,  404 
McLeery  v.  Mclx?ery,  600 
McLemore  v.  Mabson,  259,  481,  685, 

928,  933 

McLennan  v.  Prentice,  294,  393 
McLeod  v.  Barnum,  497 
McLeod  v.  Skiles,  303 
M'.-Lrod  v.  Snyder,  2-18 
McLogan  v.  Brown,  131 
..\U-l^,\\ry   v.   Cr..<_'han.  226,  372 
McMahon  v.  Stewart,  305 
-M»  M  anus  v.  Black  mar,  39,  40 
MrManus  v.  Cook,   759 
McMamiN  v.  Keith,  84,  91 
McMath  v.  Johnson,  665 
Mi-Michael  v.  Russell,  343,  34.". 
McMillan  v.  Reeves,  121 
Mi-Mullan  v.  Butler  Co.,  391.  395 
McMullin  v.  Wooley,  324.  4ns 
McMurray  v.   1  "let.-her,  £8 
McMurray  v.  Spicer,  «201,  898 
M<  Murray  v.  St.  Louis  Oil  Co.,  953 
Mt-XVr  V.  Compton,  226 
M.-Xally   v.    I  la\  nr,.    120 
McXally  v.  Palmer,  873 
Mi-Xanuara  v.  Arthur,   19 
MVX'amara.v.  Pengilly.  4!>,  210 
McXary  v.  Campbell,  891 
MrXeal  v.  Calkins.  708 
MrXear  v.  M«-Cimib,-r.  :iii7.  451 
MeXeill  v.  Fuller.  Sn«.  880 
^[eX«•w  v.   Walker. 
M.-Xntt    v.  Xellan-.   77.".. 
M. -riiei-M.il  v.   Ki-««'e.  22.  303 
M.-I'lier-.n   v.   Srha.le.    7M4.    SOS,    914 
MVl'licr-.n  v.   Smith.  770,  803 
Mel'ike  v.   Hr.it. .11.  :il<'.. 
>r.-<.>neen   v.   (  li..teaii.   528,   529 
\f.  (.hirni   v".    l-anpihar.   77!».   907 
>f((1)ii.-en  v.  State  Bank,  667 
M. Ha.-'  v.    I'urnii.rt.  436 
M<  "I'u.-krr  v.   Talari.  616 

MI  \'.  •  •  \     V.     Meiv.int  ile.  Cn.,    4ft 
\r.-\\liirter    v.    SuatTer.    4SO.    585,  698 
MeWhnrter  V.  Forney.  32(.» 
M. -Williams  v.  Jenkins.    6S2 
MrWillinms  v.   T/on>r,  210 
M. -William*  v.  Xi-ley.    :>02 

^35 

M.-a.l   v.   F.,v   :»7.    172.  201 
Mead    V.    .Ti.lilixill.    l.'.J.     l.'ift.    944 
Mead   v.   Marten-.    771.    S57 


TABLE  OF  CASES 


Ixiii 


[REFERENCES  ARE  TO  PAGES] 


Mead  v.  Stackpole,    391 

Meade  v.  Boone,  364,  400 

Meade  v.  Jones,  364 

Meadows  v.  Hopkins,   549 

Meadows  v.  Meadows,  119 

Meadows  v.  Michel,    868 

Means  v.  Brickell,    816,   516 

Meason  v.  Kaine,  223,  239 

Mech.  Bank  v.  Cleland,  907 

Mech.  Sav.  &  B.  t.  Assn  v  O'Connor, 

83 

Mecklem  v  Blake,  283,  295,  336,  691 
Medina  v.  Stoughton,  707 
Medlar  v.  Hiatt,  324,  332,  345 
Medlicot  v.  O'Donel,  199 
Meek  v.  Sprachm,  941 
Meeks  v.  Bowerman,  381 
Meeks  v.  Garner  250  786  889 
Meeks  v.  Meeks,  396,  401 
Melilcharek  v.  Calkins,  265,  702 
Melick  v.  Cross,  324,  533,  852 
Mellen  v.  Boarman,    117,    129,    160 
Mellon  v.  Webster,   41 
Mellon's  Appeal,  553,  559,  726 
Melton  v.  Coffelt,   216 
Melton  v.  Smith,   528 
Memmert  v.  McKeen,  273,   331,  332 
Menard  v.  Massey,  590 
Menasha  &c.  Co.  v.  Nelson,  362 
Mengel  Box  Co.  v.  Ferguson,  735 
Menifee  v.  Marye,  100,  103,  550 
Merc.  Trust  Co.  v.  So.  Park  Res.  Co., 

100,  271,  289,  454,  459,  460 
Mercer  Co.  Bank  v.  Hayes,  £90 
Merchants'  Bank   v.   Harrison,   62 
Merchants'   Bank  v.   Thompson,    840, 

888 
Merch.   Nat.   Bk.  v.   Otero,  282,   426, 

446 

Merges  v.  Ringler,  85,  869,  870 
Merriam  v.  Rauen,  136 
Merrill  v.  Merrill,  215 
Merrill  v.  Montgomery,   64 
Merrill  v.  Suing,    385,    471 
Merriman  v.  Norman,  253,   924 
Merritt  v.  Byers,   568 
Merritt  v.  Gonley,  69:1 
Merritt  v.  Harris,   592 
Merritt  v.  Hunt,    169,   703,  9>31 
Merritt  v.  Morse,  459,  463,  464 
Merritt  v.  Yates,    75 
Mervin  v.  Vanlier,  91,  122 
Mervin,  v.  Smith,   111 
Mesa  Market  Co.  v.   Crosby,   16,   17, 

35,   774 

Meservy  v.  Snell,  45® 
Meshew  v.  Southworth,  887 
Messer   v.    Oestrich,   359.    445,   451 
Mesick  v.  Sunderland,  177 
Messinger  v.   Foster,  812 


Metcalf  v.  Dallam,  898 

M.  E.  Church  v.  Robinson,  844 

2M.    E.    Church   Home   v.    Thompson, 

782,   783 

Methvin  v.  Bixley,   122,   123 
Mette  v.  Dow,  435,  451,  453 
Metz  v.  McAvoy  Brewing  Co.,  292 
Meyer  v.  Boyd,  805,  836 
Meyer  v.  Madreperia,  774,  816 
Meyer  v.  Shoemaker,  734 
Meyers  v.  Coal  Co.,  790 
Meyers  v.  Markham,  49,  521 
Meyers  v.  Ringler,  907 
'Mhoon  v.  Wilkinson,  221 
Michael  v.  Michael,   614 
Michael  v.  Mills,   6*90 
'Michel  v.  Tinsley,  611,  61G 
Mich.  Park  Asso'n  v.  Ry.  Co.,  571 
>Mickel  v.  Hicks,  120 
Middlebury    College   v.    Cheney,    575, 

584 
Middlekauff  v.  Barick,  484,  695,  707, 

946 

Middlemore  v.  Goodale,  413 
Middleton  v.  Findla,  48,  836 
Middleton  v.  Sel'by,  900,  901 
Middleton  V.  Thompson,      461,      464, 

468 

Midgett  v.  Brooks,  357,  358 
Mid  Great  West  R.   Co.  v.  Johnson, 

960 

Miesell  v.  Ins.  Co.  792 
Miles  v.  Furnace  Co.  529 
Milkman  v.   Ordway,  530 
Miller  •«.  Argyle,  500,  937 
Miller  v.  Avery,    126,   398,   485,   489, 

694,  934 

Miller  v.  Bayles,  366,  368 
Miller  v.  Bentley,    363 
Miller  v.  Calvin  &  Co.,  852 
Miller  v.  Cramer,  806,   810 
Miller  v.  De  Graff  enreid,  306 
Miller  v.  Duncan,  126 
Miller  v.  Ewing,  359,  599 
Miller  v.  Feezor,    91 
Miller  v.  Finn,   122 
Miller  v.  Fraley,    710 
Miller  v.  Halsey,   440 
Miller  v.  Lamar,   484 
Miller  v.  Long,  483.  656,  695 
Miller  v.  Macomib,    79'f,    842 
Miller  v.  Miller,   924,   925 
Miller  v.  Owens,  657,   932 
Miller  v.  Parsons,   478 
Miller  v.  Rhuman,  616 
Miller  v.  Watson,    734 
Miller  V.  Weinstein,  780 
Milligan  v.  Cooke,  916 
Millikan  v.  Hunter,  76 
Millinger  v.  Daly,  76 


ixiv 


TABLE  OF  CASES 


[  REFERENCES  ARC  TO  PAGES] 


Million  v.  Riley,  125 

Mills  v.  Abraham,   485 

Mills  v.  Bell,    425,    4-3*3 

Mills  v    Catlin,   271,   322,   350,   356, 

367 

Mills  v.  Herndon,    121 
Mills  v.  Loekwood.   617,   618 
Mills  v.  'Morris,   941 
Mills  vi  Rice,  472 
Mills  v.  Saunders,   484,   509 
Mills  v.  Seminary,  620 
Mills  v.  Tray  lor.  512 
Mills  v.  Van  Voorhis,  203 
Milmore  v.  Murphy,  544 
Mi  lot  v.  Reed,  300,  313 
Milton  v.  Crawford,  218,  769,  880 
Mihvard  v.  Earl  of  Thanet,  895 
Mincey  v.  Foster,  873 
Miner  v.  Beekman,   142 
Miner  v.  Clark,  466,  467 
Miner  v.  Hilton,  49,  214,   869 
Minor  v.  Edwards,    197 
Minor  v.  Natchez,    131 
Minto  v.  Moore,  883 
Mischke  v.  Baughn,  436,  448 
Miss.  Saw-Mill  Co.  v.  Douglas,  563 
.Miss.    R.    Logging    Co.   v.    Whelihan, 

357 
Missouri   K.   &  T.    R.    Co.   v.    Pratt, 

637,  650 
Missouri  VaL  Land  Co.  v.  Bushnell, 

843 

Mitchell  v.  Allen,  870 
Mitchell  v.  Barry,  649 
Mitchell  v.  Christopher,    707 
Mitchell  v.  De   Roche,  673 
Mitchell  v.  Dibble,    509 
Mitchell  v.  Hazen,  160,  289,  433,  452 
Mitchell  v.  Kintzer,    109 
Mitchell  v.  Mitchell,  624 
Mitchell  v:  McMullen,    115,   484,   924 
Mitchell  v.  Petty,   562 
Mitchell  v.  PilMmry.  SI  2,  318.   353 
Mitchell  »v.  Pinckney,  82,  86,  91,  102. 

196 

Mitchell  v.  Sherman,    662 
Mitchell  v.  Stanley,  348 
Mitchell  v.  Stineniitz,  767,  773 
Mitchell  v.  Vaughan,  386 
Mitchell  v.  Warner,    280,    324,    361, 

410 

Mitchell  v.  Woodwn,    524.    592 
Mitchell  v.  Zimmerman.   743 
MitoheniT  v.  Holme*,  829,  836 
Mix  v.  Beach,  526 
Mixon  v.   Hiirli'-nn.  274,  294 
Moak  v.  Bryant,  77 
Monk  v.  Jon n son,  443 
Mobile  Co.  v.  Kimball.  520 
Mobley  v.  Keys  37,  640,  657 


Mul>ley  v.  Quattlebaum,  874 

Mock  v.  Chalstrom,  879 

Moggridge  v.  Jones,  4*6,  502,  663 

Mohr  v.  Maniere,   121 

Mohr  v.  Parmelee,  326,  345,  348,  444 

Mohr  v.  Tulip,   121 

Molina  v.  Ramirez,  505 

Moliter  v.  Sheldon,  407 

Molloy  v.  Kgan,  896 

Molloy  v.  Sterne,  28,  788 

Monagan  v.  Small,  770,  H40 

Monarch  &c.  Co.  v.  Washhurn,  880 

Monarque  v.  Monarque,  828 

•Monell  v.  Colden,  719,  747 

Monell  v.  Donglan,   309 

Monroe  v.  Skelton,  614 

Monson  v.  Stevens,  218,  666,  873 

Monte  v.  Allegre,  The,  122 

Montgomery   v.    North  Pac.    R.    Co., 

438,  441 
Montgomery  v.  Pac.   L.  Co.   Bureau, 

773,   774 
Montgomery  v.   Reed,   275,   289,   295, 

297 
Montrose  Realty  Co,  v.  Zimmerman, 

846 

Moody  v.  Leavitt,  460 
Moody  v.  Spokane  R,  Co.,  38 
Mooney  v.  Burchard,  402 
Moore  v.  Allen,   129,   144 
Moore  v.  Appleby,  771,  784,  830 
Moore  v.  Beard,  499 
Moore  v.  Buckham,    76 
Moore  v.  Cooke,  622,  926 
Moore  v.  Elliott,   842 
Moore  v.  Ellsworth.   502     920 
Moore  v.  Frankenfield,   436 
Moore  v.  Hazelwood,  952 
Moore  v.  Hill,  659 
Moore  v.  Hunter,  180 
Moore  v.  Johnson,  364 
Moore  v.  Johnston,  277 
Moore  v.  Lanham,  386 
Moore  v.  LiHjoharms,    542 
Moore  v.  -McKie.    436 
Moore  v.  Merrill,  2S1,  421 
Moore  v.  Munn,-6(i7,  615 
Moore  v.  Neil.    113 
Moore  v.  Price,  195 
Moore  v.  Rake,  562.  675 
Moore  v.  Taylor,  817 
Moore  v.  Yawe,  62 
Moore  V.  Vail,    385,    391,    393.    304, 

395,  3»9.  400 
Moore  v.  Vogcl,  512 
Moore  v.  Weber,  382,  475 
Moore  v.  Williams,     771,     781,     782, 

794,  803.  859 
Moore  v.  Wingate,   612 
Moore's   Appeal,  41 


TABLE  OF  CASES 


Ixv 


[REFERENCES  ABE  TO  PAGES] 


Moot  v.  Bus.  M.  Asso.,  173,  792,  822, 

»73 

Moralis  v.  Mathews,  563 
Moran  v.   Stader,  835 
Morange  v.  Morris,  15,  38,  214,  875, 

896 
More   v.    Smedburgh,    190,    671,    756, 

872,    875 

Moredock  v.  Williams,  662,  926 
Morehouse  v.  Heath,  305 
Moreland  v.  Atchinson,  253,  742,  944, 

959,  961 

Moreland  v.  Metz,  349,  350,  425,  451 
Morenhout  v.  Barren,  533 
Morgan's  Appeal,   120 
Morgan  v.  Boone,   549 
Morgan  v.  Bouse,   124 
Morgan  v.  Brast,  912 
Morgan  v.  Davis,   380 
Morgan  v.  Dibble,    856 
Morgan  v.  Eaton,   39 
Morgan  v.  Famed,   119 
Morgan  v.  Glendy,    937 
Morgan  v.  Godbee,  365 
Morgan  v.  Haley,   402,   459.   465 
Morgan  v.  Morgan,    53<j,    753,    780, 

785 

Morgan  v.  Muldoon,   469 
Morgan  v.  R.  Co.,  395,  399,  406 
Morgan  v.  Ramsey,   133 
Morgan  v.  Scott,  866,  876,  879 
Morgan  v.  Shaw,  902 
Morgan  v.  Smith,    36,    76,    324,    332, 

352,  508 

Morgan  v.  Stearns,  77 
Morley  v.  Cook,  25 
Morrette  v.  Bostwick,  467,  468 
Morris  v.  Balkhr.m,   133 
Morris  v.  Canal  Co.,  873 
Morris  v.  Coleman,    887 
Morris  v.  Gentry,    110 
Morris  v.  Goodwin,   874 
Morris  v.  Ham,    481 
Morris  V.  Hesse,  303,  321,  475 
Morris  v.  Kearsley,  30 
Morris-  v.  McMullen,  806,  817,  933 
Morris  v.  McNull,   878 
Morris  v.  Mowatt,  92,  798 
Morris  v.  Owens,   367 
Morris  v.  Fhelps,  278,  444,  445,  448, 

584 
Morris  v.  Rowan,      451,      454,      459, 

464 

Morris  v.  Short,  319,  563,  569 
Morris  v.  Terrell,  178 
Morris  v.  Whitcher,    491 
Morrison  V.  Arnold,    779 
Morrison     v.     Beckwith.     923,     927, 

932 
Morrison  v.  Brand,   867 


Morrison  v.  Collier,  605,  615 

Morrison  v.  Caldwell,  709 

Morrison  v.  Faulkner,    78 

Morrison  v.  Lods,   250 

Morrison  v.  MlcArthur,  274 

Morrison  v.  Morrison,  366 

Morrison  v.  Underwood,   584 

Morrison  v.  Waggy,    799 

Morrison  vi.  Wlutesides,   592 

Morrison  v.  Wilson,  359,  592 

Morrow  v.   Rees,   678,   679,   739 

Morrow  v.  Wessell,   87 

Morse  v.  Duryea,   265 

Morse  v.  Elmendorf,  528,  533,   950 

Morse  v.  Royal,   193.,  199 

Morse  v.  Shattuck,   436 

Morse  V.  Stober,   796 

Mortlock    v.    Buller,    532,    537,    545, 

753 
Morton  v.  Ridgeway,    450,    759,    763, 

Morton  v.  Willborn,    141 
Moseley  v.  Hunter,  300,  309,  343 
Moser  v.  Cochran,  769,  773,  819,  847 
Moser  v.  Tucker,  773,  795 
Moses  v.  McFerlan,  126,  710 
Moses  v.  Wallace,  533,  535 
MoskoAvitz  v.  Homberger,  845 
Moss  v.  Davidson,  517,   764,  879 
Mossi  v.  Hanson,  730,  889 
Moss  v.  King,  216 
Mosteller  v.  Astin,  363 
Mott  V.  Ackerman,  900 
Mott  v.  Mott,  808,  840,  911 
Mott  v.  Palmer,  277 
Moulton  v.  Ohaffee,  20 
Moulton  v.   Edmonds,   166 
Mountain    Home    L.    Co.    v.    Swart- 

wout,   569 

Mover  v.  Shoemaker,  691 
Mudd  v.  Green,  690 
Muir  v.   Berkshire,   140,  141 
Muir  v.  Craig,  144 
Mulholland's  Est.,  In  re,  112 
Mullen  v.  Cook,  224,  227 
Muller  v.   Boggs,   63 
Muller  v.  Palmer,  260,  894 
Mullings  v.  Trinder,  775 
Mullin  v.  Atherton.   131 
Mullins  v.  Aikin,  794,  834,  838 
Mullins  v.  Bloomer,   667 
Mullins  v.  Jones,  5S,  658 
Mullins  v.  Porter,   825 
Mullreed  v.  Clark,  951 
Mumford  v.   Pearce,  549,  827,  829 
Munday  v.  Vail,  98,   101 
Munford  v.  Kent,  273 
Mundy  v.  Garland.  790,  873 
Munro  v.  Long.  516 
Munroe  v.  Pritchett,  249,  267 


Ixvi 


TABLE  OF  CASES 


[REFERENCES  ARE  TO  PAGES] 


Munyon  v.  Hartman,  755 
Murdock  v.  Gifchrist,  49O,  491 
Murpliin  v.  Scoville,  20,  37 
Mtirphree  v.  Dogan,  550 
Murphy  v.  Fox,  801 
Murphy  v.  Jones,  482 
Murphy  v.  Lockwood,   147,   149 
Murphy  v.  Price,  160,  391 
Murphy     v.     Richardson,     650,     729, 

726 
•Murphy  v.   U.  S.  Title  &c.  Co.,  200, 

292 

Murray  v.  Ellis,    773,    725,    782,   802 
Murray  v.  Hanvay,    782,     783,     794, 

797 

Murray  v.  Palmer,   762 
Murray  v.  Sells,  613" 
Murrell  v.  Goodyear,  549,  878 
Musgrove  v.  Cordova  Imp.  Co.,  406 
Musial  V.  Ku.llik.  321 
Muskingum  Val.  T'pike  v.  Ward,  47 
Musselwhite  v.  Oleson,  750 
Myers  v.  DeMeier,  882,  884 
Myers  v.  Broadbeck,  349 
Mygatt  v.  Coe,  280,  335,  422 
Mygatt  v.  Maslen,  785 

N. 

Xalxjurs  v.  Cocke,  944 

Naglee  v.  Ingersoll,  47-2 

Nance  v.  Rourke,  6T8 

N'ance  v.  Sexton,  890 

Napier  v.  Elam,  259,  260 

Nash  v.  Ashton,    478 

Nash  v.  Palmer,  381,  383 

Nash  v.  Spofford,  589 

Nashville  Ac.  Ry.  Co.  v.  Proctor,  678 

Nathan  v.  Morris,  853 

Nathans  v.  Stemmayer,  499 

Nat.  Fire  Ins.  Co.  v.  M-eKay,  496 

Naylor  v.  MtNair,  309 

Naylor  v.  Winch,  955,  957 

Neagle  v.  Hudson,  853>  855 

Nel*,  In  re,  73 

Needham  v.  Salt  I*ke  City,  120 

Neel  v.  Carson,  141 

Neel  v.  Hughe*,  51 

Noel  v.  Pru-kett,    655.  657 

Nceley  v.  Lane,  311,  312 

Neewn  v.  Bray  385 

Neff  v.  Rubin,  854 

Xegley  v.   Lindsay.  202.  068 

Neher  v.  llruix-Kmnn,  800 

Neill  v.  McClung.  537 

Xelms  v.  Prewitt,  494,  921 

Nelson  v.  Butler.  838 

\i-l- "ii  v.  Jaonba,  806 

Nelson  v.  Hamilton  Co.,  743 


Nelson  v.  Matthews,  20,  433 

Nelson*  v.  Harwood,  557 

Nelson  v.  Jacobs,    806 

XeJson  v.  Owen,    927 

Nelson  v.  Russell,   840 

NeKhorp  v.  Howgate,    542 

Xerhooth  v.  Althouse,  601 

Nesbit  v.  Brown,  420,  428 

Xesbit  v.  Campbell,  508 

Xesbit  v.  Nesbit,  420 

Xesbit  v.  Miller.  213 

Xewark  Sav.  Inst.  v.  Jones,  20,  22, 

150,  204 

Xew  Barb.  Bridge  Co.  v.  Vreeland,  20 
Newberry  v.  French,  38,  083,  798 
Newtoerry  v.  Ruffin,  4 
Xewbold    v.    Peabody    Heights,    204, 

332,  491 
Xew  Brunswick  R.  Co.  v.  Conybeare, 

25Q 

Xewcomb  v.  Bracket,  15 
Newcomt)  v.  Presbrey,  359 
Newt-ember  v.  Brooke,  1 1 1 
Newell  v.  Banking  Co.,  571 
Newell  v.  Turner,  201 
Xewman  v.  Glea^on,  904 
Newman  v.  Samuels,  67 
Newman  v.  Sevier,  286,  337,  410 
Newmyer  v.  Rourfch,  3O3,  329 
Newnan  v.  Maclin,  C81,  831,  912 
Newsom  v.  Davis,  836. 
Xewsom  v.  Graham,  503 
Xewsom  v.  Harris,  227 
Xewsom  v.  Thompson,  47 
Xewton  v.  Bower,  657 
Newton  v.  Easterwood,  5G6,  568,  569 
Xe»wton  v.  Foster,  495  . 
N.  Y.  ic.  Coal  Co.  v.  (Jrahaui,  361, 

391,  475,  491 

X-.  Y.  City  v.  Transp'n  Co.,  340 
N-  Y.  Liffe  Ins.  Co.  v.  Gilhooly,  793. 
N.  Y.  Life  Ins.  Co.  v.  Lord,  866 
N.  Y.  Sec.  i  Tr.  Co.  v.  Schomberg, 

831 

N.  Y.  Steam  Co.  v.  Stern,  812 
Xcyland  v.  Neyland,  512 
Xichol  v.  Nichol,  207 
Xicholas  v.  Jones,  160 
Xichols  V.  Alexander,  581 
Xichols  v.  Corbett,  31 
Nichols  v.  Distder,  134 
Xichols  v.  Freeman,  228 
Xichols  v.  Walters,  280,  290,  431 
Nicholson  v.  Caress,  809,  611 
Nicholson  v.  Condon,  779 
Nirholmn  v.  Lieher,    198,    794,    810, 

876 
Nicholson  v.  Sherard,  551 


TABLE  OF   CASES 


Ixvii 


[REFERENCES  ARE  TO  PAGES] 


Nicholson  v.  Slaughter   Co.,   363 
Nicholson  v.  Wadsworth,     523,     670, 

755 

Nickles  v.  Haskins,  125 
Nicol  v.  Nicol,  259 
Xicoll  v.  Carr,  677,  756,  757,  770,  784, 

862 

Nicoll  v.  Mason,  616 
Nieto  v.  Carpenter,  590 
Xiles  v.  Harmon,  705 
Nind  v.  Marshall,  366 
Nixon  v.  Carco,  598 
Nixon  v.  Hyserott,  159 
Nixon  v.  Moore,  856 
Nodine  v.  Greenfield,  831,  887 
Noell  v.  Gill,  605 
Noke  v.  Awder,  420,  422 
Nokesr  v.  Lord  Kilmorey,  898 
Nolan  v.  Felton,  439 
Noojin  v.  Carson,  '683 
Xoonan  v.  Illsley,  581,  584,  691 
Noonan  v.  Lee,  392,  481,  693,  706 
Norfolk  &  W.  R.  Co.  v.  Mundy,  289 
Norgren-  v.  Edson,  134 
Norman  v.  Norman,  12i5,  951,  953 
Norris  v.  Evans,  511 
Xorris  v.  Hay,  259,  740 
Norris  v.  Kipp,  251,  472,  473 
Northcutt  V,.  Hume,  446 
N:  Highlands  Co.  v.  Holt,  785 
N.  Pac.  R.   Co.  v.  Montgomery,  385, 

387,  453 

Northridge  v.  Moore,  233,  234,  238 
Xorthrup  v.  Ackerman,  571 
North  Wyo.  Land  Co.  v.  Butler,  215 
Norton  v.  Babcock,   312,  347,  440 
Norton  v.  Colgrove,  340 
Norton  v.  Herron,   161 
Nocton  v.  Jackson,  482,  510 
Norton  v.  Marten,  959 
Norton-  v.  Neb.  L.  &  Tr.  Co.,  90,  91 
Norton  v.  Stroud  Bank,  707 
Norton  v.  Young,  758 
Nosier  v.  Hunt,  292,  483 
Nott  v.  Ricard,  31 
Nouaille  v.  Flight,  32,  788,  911 
Novak  v.  Orphans'  Home,  807 
Nowler  v.  Coit,  142 
Nowlin  v.  Pyne,  609,  611 
NoyesJ  v.  Brown,  210,  219,  663 
Noyes,  v.  Johnson,  25,  808,  810 
Noyes  v.  Phillips,  245 
Nugent  V.  Priebatsch,  622 
Nungess-er  v.  Hart,  316 
Nunnally  v.  White,  410 
Nutting   v.    Herbert,    299,    425,    436, 

438 
Nyce  v.  Obertz,  322,  346 


0. 


Oakes  v.  Buckley,  17,  219 

Oakey  v.  Drummond,  484 

O'Bannon  v.  Paremour,  562 

O'Beirne  v.  Buller,  529 

Obernyce  v.  Obertz,  916 

Oberthier  v.  Stroud,  123,  124 

Occidental  Realty  Ctt  v.  Palmer,  683 

Ocean  City  Asso'n  V.  Creswell,  807 

Ochs  v.  Kramer,  803 

O'Connell  v.  Duke,  364,  952 

O'Connell  v.  First  Parish,  313 

O'Connor  v.  Enos,  303,  311,  321,  349 

O'Connor  v.  Hugging,  807,  814 

Odell  v.  Claussen,  846 

O'Ferrall  v.  Simplot,  75 

Officer  v.  Murphy,  756,  757,  761 

Ogiburn  v.  Whithnv,  513 

Ogden  V.  Ball,  292,  293,  395,  448 

Ogden  v.  Yoder,  938 

Ogilvie  v.  Hall,  382 

Ogooshevits  v.  Wahijas,  216,  520,  523, 

848 

Ohio  &  Miss.  R.  Co.  v.  McCarthy,  754 
Ohling  v.  Luitjens,  687,  695,  737,  939 
O'Kane  v.  Kiser,  856 
O'Kelly  v.  Gholston,  141 
Old  Colony  Tr.  Co.  v.  Chauncey,  545, 

546 

Oldfield  v.  Stevenson,  482,  498,  929 
Olds  v.  Cedar  Works,  575 
Oliver  v.  Bush,  #60 
Oliver  v.  Dix,  8QO 
Oliver  v.  Hallam,  904 
Oliver  v.  Holt,  563 
Oliver  v.  Kneedler,  735 
Oliver  v.  Love,  288 
Oliver  Min.  Co.  v.  Clark,  521 
Oliver  v.  Piatt,  710. 
Olmstead  v.  Ransom,  319 
Olsen  v.  Rogers,  890 
Omaha  v.  Omaha  Water  Co.,  212 
O'Meara  v.  McDaniel,  292 
Omerod  v.  Hardman,  901 
O'Neal  v.  Miller,  740 
O'Neill  v.  Douthett,  651,  868 
O'Neill  v.  Vanderberg,  589 
O'Neill  v.  Van  Tassell,  326,  858 
Onions  v.  Tyrer,  957 
Ontario  Bank  v.  Lansing,  125,  127 
Opejon  v.  Engero,  886 
Oppenheim  v.  McGovern,  654 
O'Reilly  v.  King,  772,  782,  783,  788, 

829 

Orendorff  v.  Tallman,  747,  842 
Organ  v.  Bunnell,  574 
Ormsby  v.  Terry,  83,  85 
Orme  v.  Boughton,  14.  274 
Ormsby  v.  Graham,  521,  522 
Osbald'iston  v.  Askew,  797,  799,  800 


Ixviii 


TABLE   OF   CASK- 


[ REFERENCES  ARE  TO  PAGES] 


•i  v.  Dodd,  670.  7  •">.-, 
o-l,.. me  v.  Atkins,  333,  338 

lie  v.  Breman,  905,  911 

lie  v.   Fair  ley,  216,  534 
Osl>orne  v.  Harvev,  30 
O?borne  v.  McMillan,  161.  162 
Osborne  v.  Nicholson,  383 
O>!.nn:e  V.  Rowlett.  Ml.  786 
OAurn  v.  PriUhard,  301,  386 
Osgood  v.  Franklin,  753 
O.-terbury  v.  I'nion  Trust  Co.,  146 

In  nit  v.  Shoemaker,  600 
Obteruian  v.  Baldwin,  124 
O-trow  v.  Lesser,  344 
O'Sullivan  v.  Griffith,  36C,  706 
Oswald  v.  Sproehlne,  612 

.  Sprague,  592 
Ottinger    v.    Strasburger,    807,    808, 

812 

Otto  v.  Young,  523,  650 
Outlaw  v.  Morris,  759 
Overhiser  v.  MciAdlwter,  289,  699 
Overly  v.  Tipton,  216 
Ovcr.-treet  v.  Dobson,  315 
Owen  v.  Brookport,  562 
Owen  v.   \orris,  217 
ouen  v.  Pomona   L.  W.  Co.,  201,  263 
Owen  v.  Thomas,  385,  395,  474 
Owens  v.  Cowan,  879 
dv.ens  v.  Rector,  249,  690 
Owens   v.   Salte.r.   f>UN 
Owings  v.   Hald win,  798,  799 
Owings  v.  Thompson,  21 

P. 

Pacific  Tel.  Co.  v.  Tel.  Co.,  790 
I'a.-k  v.  Gaither,  25,  520 
Parkard  v.  I  -her.   172 

r.  Adam,  33 
Page  v.   Brown,  158 
Page  v.  Greeley,  198,  788,  810 
Page  v.  Lashley.  321 
Pagct  v.  Melchior.  S32.  841,  866 
Paine  v.  Kemp.   \w.  HJ'.» 

v.  Miller.  166 
Painter  v.  Henderson,  178 

v.  I'larl 

Palmer   v.   Chandler.    1  1 1 
Palmer  v.  Hud^-n  \  .  |;v.  Co..  2:21 
Palmer  v.    Ixx-ke,  777 
Palmer  v.  Morrison,  843 
Palmer  v.  RielmnlMm.    191,   196,   901 
Palmerton  v.  Hoop,  121 
PangWn  v.  Miles.  659,  850,  865 

: 

raj. in  v.  Goodrich,  4.1,  1C9 
1'iirham  v.  Parhnm,  506 
Parham  v.   Rjuidolph.  240,  261,  267, 
"!•_>.  »40 

...Iden,  371,  537.  6-".2 


Parish  v.  Whitney,  324 

Park  v.  Bates,  Ml,  3!»s.  4:53.  434.  400 

Park  v.  Brooks,  7:,:; 

Park  v.  Johnson.  7.">4.  7('».j.  858 

Parke  v.  Chadwick.  4:10 

Parker  v.  Baker,  (i-2 

Parker  v.  Brown.  271.  272,  289,  290 

Parker  v.  Cti!l>ertsnn.  483 

Parker  v.  Dunn,  :>!».'> 

Parker  v.  Gcxldard,  136 

Parker  v.  Hart.    1'.'7 

Parker  v.  Join--..  ."iti2 

Parker  v.  Kane,  103 

Parker  v.   McAllister.  37,  216 

Parker  v.  Parker.  300,  939 

Parker  v.  Parmele. 

Parker  v.  Porter,  789,  834 

Parker  v.  Richardson,  380,  475 

Parker  v.  Starr,  619 

Parker  v.  Teas.  623 

Parkins  v.  Williams,  932 

Parkinson  v.  Wuiild>.  292 

Parkinson  v.  Sherman,  -i!»7.  502,  509, 

694 

Parks  v.  Brooks,  750,  757,  855,  928 
Parks  v.  .lacksiin.  799 
Parkside  Realty  Co.  v.  McDonald,  791 
Parlin  v.  <SU>ne,  611 
Parmly  v.   Head,  770,  773 
Parr  v.  Lovegrove.  805 
Parsons  v.  Gilbert,  884k 
Parsons  v.  Kelsn.  IMS.  791 
Parsons  v.  Smith.  637 
Partridge  v.  Hatch.  1 1"> 
Part  ridge  v.  Patton,  599 
Pa-lay  v.  Martin,  901 
Patchell  v.  Garvin.  318 
Pate  v.  Banks.  31!) 
Pate  v.  Mitchell.  30.  280,  552 
Pate  v.  McConnell,  874 
Paterson  v.  Long,  32.  916 
Paton   v.    I'.n-lm,  i.  SK,  !M1.  915 
Paton  v.  Rojior-.  :.:!2 
Patrick  v.   l.«-a<li.    J2(J 
I';i1ri.-k   v.    IN.arh.  7.".'.t.  763 
Patten  v.  Fitx. 

Patten  v.  Stewart.  202.  2:.7.   451,  706 
Patterson    v.    Arthur.    331.    3:t2,    333, 

383 

rucal.    ">:'. 

Patterson   v.   Dwinel.   6<M) 
Patterson  v.   Fi-hei.  Oul 
Patterson  v.  Gundrirh.  .'Is 
I'atter^m    v.    Lou-.   :;2.  '.Mtl 
Patter-on    v.    I' 

Patter>on  v.   Ste\\art.   J-'-l.  7.")6,  706 
-on  v.   S  320 

•ylnr.  697 

-..n   v    V.i  -     3.')3 

v.  C:implin. 


TABLE  OF  CASES 


Ixix 


[REFERENCES  ARE  TO  PAGES] 


Patton  v.  England,  202,  501,  744 

Pattern  v.  Forgey,  563 

Patton  v.  Kennedy,  383,  467,472,473 

Patton  v.  McFarlane,  385,  395 

Patton  v.  Schneider,  365 

Patton  v.  Taylor,  481,  924,  942 

Patton  v.  Thompson,  110 

Paul  v.  Kenosha,  446 

Paul  v.  Witman,  397,  412,  465,  467 

Payne  v.  Atterbury,  681 

Payne  v.  Ca)bell,  70$ 

Payne  v.  Echols,  154 

Payne  v.  Markle,  810 

Paxson  v.  Lefferts,  355 

Paxton  v.  Sterne,  141 

Peabody  v.  Brown,  47 

Peabody  v.  Phelps,  746,  747,  718,  719 

Peak  v.  Gore,  863,  877 

Pearsoll  v.  Chapin,     248;,     678,     679, 

739>  742 

Pearsoll  v.  Frazier,  221 
Pearson  v.  Ford,  335,  343 
Pearson  v.  Davis,  289 
Pearson  V.  Seay,  640 
Pearson  v.  Wood,  483 
Pease  v.  Christ,  320,  321 
Pease  v.  Warner,  335 
Peay  v.  Capps,  670,  779 
Peay  v.  Wright,  746 
.  eck  v.  Hensley,  395 
Peck   v.   Houghtaling,   295,   298,   358, 

470,  471,  474 
Peck  v.  Jones,  727 
Peckham  v.  Stewart,  835 
Peden  v.  Moore,  481,  502 
Peebles   v.    Stephens',    671,    755,    760, 

763,  940 

Pee  Dee  Stores  Co.  v.  Hainer,  342 
Peeler  v.  Levy,  541,  542 
Peers  V,  Barnett,   500,   660,  811,  913, 

937 

Peers  v.  Lambert,  913 
Peet  v.  Beers,  555 
Pegler  v.  White,  774,  776 
Pell  v.  Pell,  837 
Pelletreau  v.  Jackson,  591 
Pena  v.  Armstrong,  623 
Pence  v.  Duval,    281,    379,    383,    425, 

472 

Pence  v.  Gabbert,  320,  386,  419,  452 
Pence  v.  Langdon,  534 
Pence  v.  Rhonernus,  414,  465,  469 
Pendleton  v.  Button,  75 
Penfield  V.  Clarke,  38 
Penn  v.  Preston,  725 
Pennington  v.  Clifton,  144 
Pennsylvania  v.  Sims,  725 
Penna.  Min.  Co.  v.  Thomas,  171 
Penny  v.  Woody,  373,  418 
People  v.  Gilon,  316,  650 


People  v.  Globe  Ins.  Co.,  779 
People  v.  Life  Ins.  Co.,  840 
People  v.  Mitchell,  265 
People  v.  Open  Board,  etc.,  779,  883, 

894 

People  v.  Sisson,  482 
People  v.  Society,  590 
People    v.    Stock    Brokers'    Building 

Co.,  786 

People's  SaV,.  Bank  v.  Alexander,  328 
Peo.  Sav.  Bank  v.  Lewis,  571 
Peo.  Sav.  Bank  v,  Parisette,  53£,  540 
Pepper  v.  Rowley,  482 
Peques  v.  Mos'by,  640,  665 
Perciful  v.  Kurd,  695 
Percival  v.  Colonial  Inv.  Co.,  326 
Perkins  v.  Bamford,  485 
Perkins  V..  Dickinson,  606 
Perkins  v.  Ecle,  913 
Perkins  v.  Fairfield,  9*6 
Perkins  v.  Hadley,  228,  412,  545,  763, 

681 

Perkins  v.  White,  82 
Perkins  v.  Williams,  492 
Perrin  v.  Chidester,  879 
Perrot  v.  Perrot,  957' 
Perrow  v.  Webster,  9'35 
Perry  v.  Adams,  142 
Perry  v.  Boyd,  756,  941,  942 
Perry  v.  William,  145 
Perry  v.  Williamson,  323 
Pershing  v.  Canfield,  216,  674 
Personneau  v.  Blakely,  609 
Peterman  v.  Laws,  136 
Peters  v.  Anderson,  554 
Peters  v.  Bowman,  286,  497 
Peters  v.  Delaplaine,  916 
Peters  v.  Farnsworth,  159 
Peters  v.  Grubbs,  366,  384,  408 
Peters  v.  M«Keon,  226,  229,  236,  238, 

425 

Peters  VI.  Meyers,  315,  318 
Peterson  v.  Hultz,  884 
Peterson  v.  McCulloch,   483 
Petrie  v.  Folz,  402.  403,  436 
Pettys  v.  Marsh,  640 
Pflrrman  v.  Wattles,  138,  484 
Phelps  v.  Decker,  366 
Phelps  v.  Kellogg,  577 
Phelps  v.  Phelps,  54 
Phelps  v.  Sawyer,  392 
Phenix  v.  Bijelich,  601,  679 
Phillbrook  V.  Emswiler,  714 
Phillips  v.  Coffee,  131 
Phillips  v.  Cooper,  461 
Phillips  v.  Day,  813,  819 
Phillips  v.  Evans,  383 
Phillips  v.  Herndon,  38,  153,  224 
Phillips  v.  O'Neal,  680 
Phillips  v.  People,  62 


Ixx 


TABLE  OF  CASES 


[REFERENCES  ARB  TO  PAGES] 


Phillips  v.  Reichert,  425,  431,  445 

Phillips  v.  Ruble,  64 

Phillips  v.  Scott,  730 

Phillips  v.  Smith,  428,  436 

Phillips  v.  Stanch,  53» 

Phillips  v.  Walsh,  70,  80 

Phillipson  v.  Gibbon,  903 

Phinixy  v.  Guernsey,  907 

PhippV.  Chi  Ids,  788 

Phipps  v.  Sappenfield,  157 

Piatt  v.  Trimby,  641 

Pickitt  v.  Loggon,  152 

Piedmont  Coal  Co.  v.  Green,  660 

Pierce  *.  Coryn,  380 

Pierce  v.  Johnston,  281 

Pierce  v.  Milwaukee  R,  Co.,  478,  560, 

586 

Pierce  v.  Nicol,  879,  906 
Pierce  v.  Pettit,  195 
Pierse  v.  Bronnenburg,  303,  315 
Pierson  v.  Armstrong,  53 
Pierson  v.  Doe,  52 
Pike  v.  Galvin,  281,  599 
Pike  v.  Goodnow,  571 
Piland  v.  Taylor,  61 
Pilcher  v.  Prewitt,  705,  707 
Pikher  v.  Smith,  681 
Pillsbury  v.   Mitchell,  281,  336,   343, 

347,"  353 
Pinckard  v.   Mortgage  Co.,  278,  282, 

392 

Pincke  v.  Curtis,  201 
Pinkston  v.  Huie,  243,  293 
Pineland  Mt'ge  Co.  v.  Trust  Co.,  293, 

459 

Pino  v.  Beckwith,  637,  677 
Pintard  v.  Martin,  706 
Pioneer  Min.  Co.  v.  Pierce,  627,  640 
Piper  v.  Elwood,  145 
Pipkin  v.  James,  637,  890,  998 
Pitcher  v.  Livingston,  154,  289,  290, 

450 
Pitkin  v.  Leavitt,  391,  458.  466,  467, 

469,  472 

Pitman  v.  Connor,  304,  362 
Planer  v.  Eq.  Life  Inn.  Co.,  542,  545 
Platt  v.  r.ilehriHt,  488,  497,  694,  934 
Platt  v.  Newman,   848 
Platto  I.iin.l  C'o.  v.  H irf .bard.  639 
Playter  v.  Cunningham,  380,  392 
Plowman  v.  Shidler,  571 
IMiuiiiniT  v.  Kennington,  866 
Plummer  v.  Rigdon,  227 
Plummer  v.  Russell.  51 
Poheim  v.  Myers,  2O9 
Point  Street  Iron  Works  v.  Simmons, 

155 

Poke  v.  Kelly,  640.  724 
Polak  v.  Matron.  370 
Polk  v.  Stevenwn,  172 


Polk  v.  Summer,  52,  855 
Pollard  v.  Dwight,  272,  275 
Pollard  v.  Rogers^  202 
Pollock  v.  Speidel,  562 
Pollock  v.  Wilson,  765 
Pomeroy  v.  Burnett,  482.  508,  509 
Pomeroy  v.  Drury,  20,  38 
Pomeroy  v.  Fullerton,  528 
Pomeroy  v.  Partington,  453 
Pool  v.  Ellis,  142.  143 
Poole  v.  Hill,  209 
Poole  v.  Shergold,  911 
Pooler  v,  Sanunett,  807 
Pope  v.  Garland,  22,  32 
Pope  v.  Simpson,  138 
Pope  v.  Thrall,  793,  8O9,  871 
Pope  v.  Wray,  667 
Poor  v.  Boyce,  118,  121 
Porter  v.  Bradley,  320,  349 
Porter  v.  Cook,  7O9 
Porter  v.  Henderson,  586 
Porter  v.  Hill,  584 

Porter  v,  Xoyes,  35,  37,  322,  393,  855 
Porter  v.  Scobie,  662 
Porter  v.  Sullivan,  600 
Porter  v.  Titcomb,  757 
Portorfield  v.  Payne,  784 
Port  Jefferson   Realty  Co.   v.   Wood- 
hull,  816 

Portman  v.  Mill,  903 
Posey  v.  Keinsey,  874 
Post'v.  Bernheimer,  862 
Post  v.  Campau,  320 
Post  v.  Leet,  87,  125,  944 
Post  v.  Weil,  853,  854 
Potomac  Lodge  v.  Miller,  807 
Potter  v.  Kitchers,  298 
Potter  v.  Parry,  774 
Potter  v.  Taylor,  307 
Potter  v.  Tuttle,  156 
Potwin  v.  Blasher.  402,  455,  498 
Poulet  v.  Hood,  158. 
Poulson  V.  Ellis,  210 
Pounsett  v.  Fuller,  225 
Powell  v.  Conant,  786 
Powell  v.  Edmonds,  34 
Powell  v.  Huey,  37 
Powell  v.  Hunter,  671,  690 
Powell  v.  Lyles,  362 
Powell  v.  M'atyr,  905 
Powell  v.  Morriasey,   624 
Powell  V.  'Munson,  322 
Powell  v.  Powell,  801 
Powt-11  v.  S«x  Wales  R.  Co.,  915 
Power  v.  Standixh.  5">0 
Powers  v.  Brvant,  72 
I'ovflM  v.  WilkiiiR,  516 
Poyntell  v.  Spencer,  395,  306,  731,  724 
Pratt  v.  Campltell,  529,  907 
Pratt  v.  Eliy,  775,  808,  812 


TABLE  OF  CASES 


Ixxi 


[REFERENCES  ARE  TO  PAGES] 


Pratt  v.  Pratt,  586 

Preble  v.  Baldwin,  303 

Preiss  v.  Le  Poidevin,  357,  416 

Preissinger  v.  Sharp,  779 

Prenti-ce  v.  Erskine,  &27,  852 

Prentice  v.  Townsend,  113,  645,  844 

Presbrey  v.  Kline,  525,  879,  886,  887 

Prescott  v.  Hayes,  63 

Prescott  v.  Hobbes,  286 

Prescott  v.  Trueman-,    273,    310,   339, 

343,  348,  851,  916 
Prescott  v.  \Yilliams,  324 
Presser  v.  Hilde'brand,  539 
Preston  v.  Breedlove,  512 
Preston  v.  Fryer,  86,  88,  91 
Preston  v.  Harrison,  144 
Preston-  v.  Walker,  657,  670 
Preston  v.  Whitcomb,  38 
Preston  v.  Williams,  622,  624 
Prestwood  v.  Carlton,  255,  278,  392 
Prestwood  v.  McGowan,  282,  391,  394, 

472 

Prevost  v.  Gratz,  481,  696 
Prewitt  v.  Graves,  787,  837 
Prewitt  v.  Kenton,  462 
Price  v.  Ayres,  931,  937 
Price  v.  Blount,  511,  512 
Price  v.  Boyd,  144 
Price  v.  Browning,  191,  660 
Price  v.  Hubbard,  486 
Price  v.  Immel,  37,  548,  788 
Price  v.  Johnson,  273 
Price  v.  Loe,  642. 
Price  v.  Real  Estate  Assn.,  121 
Price  v.  Sti'ange,  77'4 
Pridgen  v.  Long,  289,  2i90,  293 
Prirmn  v.  Wise,  213,  892 
Pring  v.  Swarm,  595 
Pringle  V.  Spaulding,  223 
Pringle  v.  Witton,  29.7,  386 
Prior  v.  Loeb,  588 
Pritchard  v.  Atkinson,  329 
Pritchard  v.  Fox,  568 
Pritchard  v.  Rebori,  330 
Pritchard  V.  Smith,  402 
Pritchard  v.  Steamboat  Co.,  707 
Pritchett  V.  Redick,  387,  402,  411 
Propper  v.  Colson,  8f54 
Prosser  v.  Watts,  778,  805 
Prothro  v.  Smith,  897 
Prov.  Life  N.  Co.  v.  Seidre,  281 
Prov.   Loan   &  Tr.   Co.   v.   Mclntoah, 

254,  745,  890 
Prout  v.  Gibson,  660* 
Prout  v.  Roberts,  259,  746,  940 
Pry  v.  Pry,  54 

Pryor  v.  Buffalo,  206,  208,  852 
Pryse  v.  McGuire,  257,  259i,  268,  483, 

507 


Piifo.   Service  Corp.  v.  Meadows  Co., 

521,  529 

Puckett  v.  McDonald,  119,  640,  743 
Pugh  v.  Brittain,  620 
Pugh  v.  jChasseldine,  37,  153 
Pugh  v.  Mayo,  570 
Pu-mpelly  v.  Phelps,  228,  230,  242 
Purcell  v.  Heeney,  485 
Pursley  v.  Good,  216 
Purvis  v.  Rayer,  20,  22,  773 
Pusey  v.  .Desibourne,  957 
Puterbaugh  v.  Puterbaugh,  20,  2-2i6, 

242 

Putnam  v.  Ritchie,  143 
Putnam  v.  Westcott,  637 
Putnam  Inv.  Co.  v.  King,  150 
Pyle  v.  Gross,  374 
Pyrke  v.  Waddingham,  771,  775,  777, 

785,  786 

o. 

Quarles  v.  Campbell,  119 
Quick  v.  Taylor,  332. 
Quick  v.  Walker,  4LO,  426 
Quimiby  v.  Lyon,  215 
Quinn  v.  Lee,  387 
Quivey  v. -Baker,  562,  592,  594 

R. 

Raben  v.  Risnikoff,  649 
Radcliff  v.  Ship,  395,  469 
Raddatz  v*  Christman,  789 
Rader  v.  Neal,  200,  201,  203 
Radford  v.  Willis,  777,  778 
Raftery  v.  Easeley,  322,,  323 
Ragan  v.  Gaither,  7'98 
Ragel  v.  Dedinan,  52 
Raines  v.  Callaway,  471 
Raines  v.  Wa'ker,  562 
Rainey  v.  Hines-,  342 
Ralston  v.  Miller,  500,  934 
Ram'bo  V.  Armstrong,  316 
Ramirez  v.  Barton,  '940,  942 
RamsdeJi  v.  Hurat,  32 
Ramsey  v.  Smith,  613 
Ramis'our  v.  Shuler,  449 
Ranokv.  Wickwire,  752 
Randall  v.  Albertis,  382 
Randall  V.  Lower,  571 
Randall  v.  Mallett,  -339 
Randolph  V.  iCinney,  281,  421 
Randolph  v.  Meeks,  389,  391 
Ranelagh  V.  Hayes,  559 
Ranhofer  V.  Realty  Co.,  840 
Rankin  V.  Maxwell,,  533 
Ranney  v.  Smith,  613 
Ranson  v.  Shuler,  9(20 
Rash  v.  Jenne,  431 
Rashall  v.  Ford,  266 


Ixxii 


TABLE  OF  CASES 


LREFERKNCLS  AUC  TO  PACKS] 


Ra.sst  v.  Morris,  217 

Rathbun  v.  Rathbun,  566 

Ratkewicz  v.  Kara,  32*),  497 

Raudabaugh  v.  Hart,  21U 

Ravenel  v.  Ingnain,  281,  411,  414 

Itawley  v.  Beanian,  72 

Raxvlings  v.  Adanis,  226 

Rawlins  v.  Timberlake,  483,  923,  932 

Ray  v.  Detckon,  141 

Ray  v.  Pease,  53 

Ray  v.  Virgin,  117 

Rayman  v.  Klare,  853 

Raymes  v.  Clarkson,  46 

Raymond  v.  Holden,  589 

Raymond  v.  Raymond,  272,  303 

Raymond  v.  Squire,  282 

Raymond,  etc.,  Co.  v.  Sharp,  882 

Raynor  v.  Lyon,  834 

Rea  V.  Minkler,  361,  300,  408,  474 

Read  v.  Fogg,  51)4,  5<J9 

Read  v.  Loftus,  491 

Read  v.  Walker,  214,  (581,  757,  940 

Reading  v.  Gray,  339 

Ready  v.  Investment  Co.,  216 

Reagle  v.  Dennis,  303,  3U8 

Real  v.  Hollister,  395 

Real  Est.  Corp.  v.  Harper,  317 

Real  Estate  Co.  v.  Walkup,  219 

Ream  v.  Goslee,  321 

Reardon  V.  Searcy,  131 

Reasoner    v.    Edinundson,    277,    340, 

395,  403 

Reck  v.  Clapp,  188 
Recolis  v.  Younglove,  271,  448 
Rector  v.  Higgins,  339 
Rector  v.  Price,  911 
Redding  v.  Lajnb,  376,  503 
Reddington  v.  llcnry,  047 
Redmoir  v.  Phenix  Ins.  Co.,  312 
Redwine  v.  Brown,  2H1,  379,  414,  416 
Reece  v.  Haymaker,  830 
Reed  v.  Crosthwaite,  144 
Reed  v.  Hatch,  365 
Heed  v.  Noe,  79K,  911,  912 
Reed  v.  Pierce,  343 
Reed  v.  Reed,  829 
I;.-,, 1  v.  Root,  600 
Reed  v.  Sefton,    21,    WO,    773,    770, 

781 

Reed  v.  Stevens,  277,  320 
Reed  Y.  Syckf»,  306,  307,  491 
Reed  V.  Tioga  Mfg.  Co.,  497,  919 
Reed  v.  Witcher,  213 
Reed-Allen  Co.  v.  Spencer,  879 
Reeder  v.  Craig,  562 
Reese  v.  Gordon,  fn>2,  706 
BMW  v.  Kirk,  19 
Reene  v.  Mcguilkin,  425,  472 
BMM  v.  Smith,  MO,  5»4 


Reeves  v.  Dickey,  660,  661,  062,  882, 

889 

Reeves  v.  Downs,  671 
Refeld  v.  Woolfolk,  537,  538,  708 
Reffon  Realty  Co.  v.  Adams  L.  Co., 

845 

Regney  v.  Coles,  792,  826 
Reguey  v.  Small,  135 
Reid  v.  Johnson,  825,  867 
Reid  v.  Sycks,  300,  307,  491 
Reilly  v.  Burton,  141 
Reilly  v.  Smith,  539 
Reiner's  Appeal,  1.16 
Reis  V.  Epperson,  303,  312 
Remillard  v.  Pre.*ott,  #12,  616 
Remington  v.  Hornby,  153 
Remington  v.  Palmer,  490,  492 
Remy  v. -Olds,  215 
Keiii'clc  v.  Renick,  934 
Renner  v.  Marshall,  930 
Rennie  v.  Gibson,  275,  387,  454,  460, 

464 

Renshaw  v.  Gans,  540,  5X>5,  724,  726 
Reutler  v.  Raniaon,  856 
Resser  v.  Carney,  572 
Rcsnick  v.  Campbell,  894 
Renter  v.  La  we,  734 
Revol  v.  Stroudback,  806,  845,  846 
Rex  v.  Creel,  375,  391 
Rex  v.  Holland,  052 
Reydell  v.  Reydell,  800 
Reynolds  v.  Borel,  796 
Reynolds  v.  Cathen,  565 
Reynolds  v.  Clark,  539i 
Reynolds  v.  deary,  853 
Reynolds  v.  Harris,  131,  686 
Reynolds  v.  Nelson,  628 
Reynolds  v.  Smith,  892 
Reynolds  v.  Strong,    767,    782,    881, 

894 

Reynolds  v.  Vance,  913 
Reynolds  v.  White,  646,  771 
Reynolds  v.  Wynne,  868 
Rhea  v.  Allison,  763 
Rlica  v.  Swain,  452 
Rheel  v.  Hicks,  126 
R bonds  v.  Selin,  109 
Rhode  v.  Alley,  155,  514,  743,  72i 
Rhode  v.  Green,  467.  473 
Hhoiles  v.  Caswell,  780 
Rhodes  v.  Ihbctmm,  29 
Rhodes  v.  Wilson,  640 
It  borer  v.  Hila,-670,  671 
Rice  v.  Barrett,  842 
Rice  v.  Burnett,  113,  117 
Rice  v.  Cook,  464 
Kk-e  v.  «odd«rd,  484,  600 
Kice  v.  K-  i-,,.  571 
Rice  v.  1'oynton,  619 


TABLE  OF  CASES 


Ixxiii 


[REFERENCES  ARE  TO  PAGES] 


Rice  V.  Silverton,   940 

Rich  v.  Johnson,  451 

Richards  v.  Bent,  281,  312,  337 

Richards  v.  Homestead  Co.,  402,  406, 

440 
Richards   v.   Knight,   775,    777,    803, 

841 

Richards  v.  Mercer,  8*59 
Richardson  v.  Boright,  256,  257,  261 
Richardson  v.  Brewer,  321 
Richardson  v.  Butler,   121 
Richardson  v.  Dorr,   271,    339 
Richardson  V.  Eytoir,  32 
Richardson  v.  Gosser,   731,  717 
Richardson  v.  Jones,  779' 
Richardson  v.  Lumber  Corp.,  563 
Richardson  v.  McDougall,  128,  145 
Richardson  v.  McKinson,     760,     7>62, 

763 

Richardson  v.  Tdbey,  326 
Richardson  v.  Williams,  925 
Richardson-Killet  ;Co.  v.  Kline,  3-85 
Richmond  v.  Ames,  323,  343,  348 
Richmond  v.  Gray,     196,     918,     880, 

888  • 

Richmond  v.  Koenig,  859 
Richmond  v.  Marston,  140 
Richmond  v.  Robinson,    33'8 
Richmond  v.  Voorhees,   64 
Richstein  v.  Welch,  391,  462,  466 
Ricker  v.  Pratt,  921,  '928 
Rickert  v.  Snyder,  297,  349,  381,  393, 

458,  471 

Ricketts  v.  Dickens,  356,  362,  391 
Riddell  v.  Blake,  764 
Riddle  V.  Bush,   132 
Riddle  v.  Hill,  117 
Riddle  v.  Hudson,  275,  2,97 
Riddleberger  v.  Mintzer,  539 
Rider  v.  Powell,  614 
Ridgeley  v.  Howard,  61 
Ridgway  v.  Gray,  9L5,  916 
Rieman  v.  W  agner,  807 
Riez's  Appeal,  539 
Rife  v.  Glass  Co.,  353 
Rife  v.  Lybarger,  859,  864,  915 
Rigg  v.  Cook,  575 
Riggins  v.  Post,  653 
Riggs  v.  Pur  sell,  83,  85,  201,  648,  771 
Riley  v.  Bell,  251,  260 
Riley  v.  Kepler,  115 
Riley  v.  Million,  125 
Rimer  v.  Dugan,  258,  267,  94Q 
Rinaldo  v.  Houseman,  650 
Rineer  v.  Collins,  224,  226 
Rindskopf  v.  Trust  Co.,  393 
Rinehart  v.  Rinehart,  343 
Ripley  v.  Kepler,  113,  115 
Rippingall  v.  Loyd,  33 
Ritter  v.  Henshaw,   127,  144 


Ritter  v.  Phillips,  5091 

Roach  v.  Rutherford,  101,  1.96,   199, 

657 

Roake  v.  Kidd,  77-3 
Roake  v.  'Sullivan,  2,90,  294  496 
Robards  v.  Cooper,  481 
Robb  v.  Irwin,  99 
Rofofo  v.  Montgomery,     38,     49,     665, 

887 

Robben  v.  Benson,  835,  837 
Ro'bbins  v.  Battlehouse,   604 
Robbins  v.  Mayer,   608 
Roberts  v.  Bassett,  37,  38 
Roberts  v.  Levy,  279,  286,  323,  332 
Roberts  v.  Love  joy,   533 
Roberts  v.  McFadden,    17,    425,    430, 

783 

Roberts  v.  Stowers,  99,  132 
Roberts  v.  Taliaferro,  608 
Roberts  v.  WoLbright,   482,   695 
Roberts  v.  Wyaft,  33,  170,  522,  546 
Robertson  v.  Bradford,   119,   142 
Robertson  v.  Gaines,  562 
Ro'bertson  v.  Hogsheads,  -659,  740 
Robertson  v.  Lemon,  425,  4o3,  458 
Robinson  v.  Bierce,  344 
Robinson  v.  Brakewell,  234,  718 
Robinson  v.  Douthit,   562,   5-69 
Robinson  v.  Galbreath,  943 
Robinson  v.  Hardman,   243 
Robinson  v.  Heard,   227 
Robinson  v.  M-audlin,   64 
Robinson  v.  Murphy,  318 
Robinson  v.  Page,  '631 
Robinson  v.  Redman,  97 
Robinson  v.  Ryan,  141,  142 
Robinson  v.  Steele,  785 
Robinson  v.  Yetter,  216' 
Robison  v.  Robison,  699 
Roche  v.  O'Brien,  193 
Rcfchells  v.  Brookman,  63-7, 
Rockfeller  v.  Donelly,  301 
Rocksell  v.  Allen,  12-7,  129 
Rockwell  v>.  Wells,  499 
Rodgers  v.  Olshoffsky,  756,  676,  725 
Rodman  v.  Williams,  651 
Roebuck  v.  Dupuy,  395,  402 
Roehl  v.  Haumesser,   950 
Roehl  v.  Pleasants,   116,   117 
Rogers  v.  Abbott,  619 
Rogers  v.  Borchard,    38 
Rogers  v.  Clemmans,  120 
Rogers  v.  Colt,  742 
Rogers  v.  Daily,  441 
Rogers)  V.  Golson,  436 
Rogers  v.  Horn,  90,  514 
•Rogers  v.  Norton,  743 
Rogers  v.  Olshoffsky,  756,  676,  725 
Rogers-  v.  Place,  497,  929, 
Rogers  v.  Waterhouse,   776 


Ixxiv 


TABLE  OF  CASES 


[  KKKERE.NCBS  A&B  TO  PAOES] 


Rohr  v.  Kindt,  39,  233,  533,  546 

Roland  v.  -Miller,  724,  720 

Rolfes  v.  Russell,  268 

Roller  v.  Effinger,  549,  678,  878 

Rollins  v.  Henry,  124 

Rollyson  v.  Bourn,  8«0,  882,  907 

Rolph  v.  Crouch,  443 

Romig  v.  Roniig,  37 

Romilly  v.  James,  781,  782,  783 

Rook  v.  Rook,  438 

Rook  v.  Wright,  483 

Rooney  v.  Koenig,  5.68 

Roos  v.  Thigpen,  809,  875 

Roots  v.  Dormer,  012 

Roper  Lumber  Co.  v.  Hinton,  563 

Rose  V.  Adler,  645,  648 

Rose  v.  XJallauoS  861 

Rose  v.  Neuman,  63 

Rose  v.  Schaffner,  418 

1: i. -i- ii  1.1  n   v.  Conovari,  252 

Rosenberg  v.  Haggerty,  227 

Rosenberg  v.  Jacubson,  652 

Rosenberger  v.  Keller,  350,  936 

Rosenblum  V.  Eisenberg,  819,  849 

Rosenthal  v.  Griflin,  66 

Ross  v.  Boards,  537,  916 

Ross  v.  Davis,  362,  693 

Ross  v.  Dysart,  371,  384 

Ross  v.  Haynes,  649 

Ross  v.  Perry,  374 

Ross's  Appeal,  72? 

Ro»wall  v.  Vaughan,  746,  706 

Roszell  v.  Roszell,  014,  621 

Rot  an.  v.  Hays,  300 

Rothwcll  v.  Schmidt,  850 

Round^v.  Baxter,  639,  667 

Roussel  v.  Lux,  809 

Rowland*  v.  Dowe,  224 

Rowe  v.  Heath,  366,  459 

Rowe  v.  School  Board,  226 

Roy  v.  Margin,  320 

Royal  v.  Dennison,  49,  77,  21? 

Royce  v.  Burrell,  375 

Royer  v.  Foster,  402,  404 

Ruben*  v.  Hill,  370 

Ruckcr  v.  Lowther,  153,  159 

Rudd  v.  Savelli,  49,  153 

RUM»  v.  Ewen,  809 

Ruff  v.  Gerhart,  805 

Rufner  v.  McConnell,  299 

Ruffner  v.  McLenan,  70 

Rutrg  v.  Realty  Co.,  883 

KH^IPM  v.  Barton,  686 

Kundell  v.  Lakey,  317,  507 

Runge  V.  Suhin,  68 

Rurricle  v.  Johnson,  218 

Rnnnella  v.  I'ruitt,  169,  22*7,  244,  873 

Jlmiii.  1-  v.  \\  .•),!„•!•.  322 

Kiinytuv  v.   MiThorenu,  277 

Rupptrt  v.  Haake,  621,  622 


Rush  v.  Truby,  45 

Rushton  v.  Campbell,  211 

Russ  v.  Alpaugh,  566,  377 

Ku---  v.  Perry,  322 

Russ  v.  btetle,  408 

Ku-s  v.  \\ingate,  61,    72 

Russ«ll  v.  Copland,  227 

Russell  v.  Crowley,   2-13 

R*ussell  v.  Handy,  205 

Russell  v.   11. i\\  \hur-j.  t'Ti 

Russell  v,  Hudson,   136 

Russell  v.  Shivery,  8*6 

Russell  v.  Wales,  838 

Rutherford  v.  Haven,  219 

Rutherford  v.  -Montgomery,  378,   409 

Rutherford  v.  Stamper,  110 

Rutledge  v.  Lawrence,   226,   240,   531 

Rutledge  v.  Smith,     ($1,     681,     905, 

90S 

Ryan1  v.  Dunlap,    529 
Ryan  v.  Wilson,   53 
Ryder  v.  Jenny,  154 
Ryerson  V.  Chapman,    458,    460,    468. 

469 
Ryerson  v.  Willis,  485,  492,  497,  502 

S.     » 

Sable  v.  Brockmeir,    2O£ 
Sable  v.  Maloney,  617 
Saococcio  v.  Sprague,  457 
Sachs  v.  Owinjrs,  213,  331,  644,  650. 

853,  865,  884 
Saokett  v.  Twining,  113 
Safe  Dep.  &  Tr.  Co.  v.  Marburg,  bOT, 

849 

Sage  v.  Jones,  336 
Sage  v.  Ranney,  665,  666 
Sage  v.  Land  &  Imp.  Co.,  172,  912 
Saint  v.  Taylor,  924 
St.  Anthony'*  K.  W.  P.  Co.  v.  Merri- 

mnn,  613.  616 

St.  Clair  v.  Helhveg,  810,  885 
St.  Clair  v.  Williams,  379 
St.    Franc-is    Leve*  Dist.    v.    Lumber 

Co.,  705 

St.  Louis  v.  Bissell,  347 
St.  Louis-  Ref.  Co.  v.  Langley.  500 
St.  John  v.  Palmer,  391,  394 
St.  Mary's  Church  v.  Stockton,  840, 

844,  862 

Saldutti  v.  Klvnn.  538 
Salisbury  v.  rfatcher,  890 
Salle  v. 'Light,  4PO 
Salmon  v.  Hoffman,  482 
Salmon  v.  Vallejo,  280,  282 
Salmon  v.  Webb,  644 
Salmond  v.  Price,  140,  145 
Saltonxtall  v.  Gordon,  252,  265 
Saltonstall  v.  Riley,  97 
Sampeyrac  v.  U.  S.,  187 


TABLE  OF  CASES 


Ixxv 


[REFERENCES  ARE  TO  PAGES] 


Sanborn  v.  Gunter,  947 

Sanborn  v.  Xockin,  538 

Sandeman  v.  McKinsie,  103 

Sanderlin  v.  Willis,  223,  657 

Sanders  v.  Boynton,  361 

Sanders  v.  Brown,   314 

Sanders  v.  Hamilton,    128 

Sanders  v.  Lansing,  637 

Sanders  v.  Wagner.  345,  439,  440 

Sands  v.  Lynham,  141,  142 

Sandum  v.   Johnson,  329 

Sandwich   Mfg.   Co.  v.   Zellman,   307, 

374,  568 

Sanford  v.  Bulkier,  63 
Sanford  v.  Justice,  267 
Sanford  v.  Sanford,  596 
Sanford  v.  Travers,  756,  951 
Sanford  v.  Wheeler,    37 
Sargent  v.  Gutterson,  304.  718 
Sarlls  v.  Beckman,  398,  462,  467 
Satterfield  v.  Spier,  533 
Saulters  V.  Victory,  226,  230 
Saunders  v.  Flanniken,    409,    414 
Saunders  v.  Guille,   845 
Saunders  v.  Hamilton,  462 
Saunders  v.  Pate,  123 
Savage  v.  Mason,  326 
Savings  Inst.  v.  Burdick,  614 
Savings  &  Loan  Assoc.  v.  Meeks,  625 
Sawyer  v.  Hovey,  616 
Sawyer  v.  Kendall,  55 
Sawyer  v.  Sledge,  646,  684 
Sawyer  v.  Vaughn,   296 
Sawyer  v.  Wiswall,  496 
Sawyers  v.  Cator,  372 
Sayre  v.  Mohoney,  657,  671 
Sayre  v.  Sheffield  Land  Co.,  293 
Seannell    v.    Am.    Soda   F.    Co.,    806, 

857,  871 

Scantlin  v.  Anderson,  446,  483 
Scates  v.  Fohn,  597 
Schaad  v.  Robinson,  308 
Schaatz  v.  Keener,  615 
Schaefer  v.  Causey,   142 
Schaefer  v.  Blumenthal,   857 
Schaefer  v.  Hilliker,  870 
Schaeffer  v.  Bond,    137 
Schaeffer  v.  Grutzmachen,  589 
Schamberg  v.  Leslie,  743 
8chechlinger  v.  Gault,  740 
Scheible  v.  Slagle,  407 
Schermerhorn  v.  Niblo,  769,  847 
Schermerhorn  v.  Vanderheyden,  437 
Scheu  v.  Lehning,  827,  913 
Scheuermann  v.  De  Latour,  828 
Schiffer  v.  Dietz,   14,  249,  882,  889 
Schimmelfenning  v.  Brunk,  311 
Schley  v.  Baltimore,  96 
Schlemmer  v.  Nelson.  637 
Schmidt  v.  Reed,  888 


Schnelle  Lumber  Co.  v.  Barlow,  273, 

293 
Schofield  v.  Iowa  Homestead  Co.,  283, 

286,  294.  412 
Scholle  v.  Scholle,  829,  831 
Schoonover  v.  Daugherty,  613 
Schott  v.  McFarland,  702 
Schreck  v.  Pierce,  20,  37,  522 
Schroeder  v.  Witham,  782 
Schroeppel  v.  Hopper,  756 
Schug's  Appeal,  82 
Schulenberg  v.  Harriman,  399 
Schuler  v.  Dooley,  653 
Schultze  v.  Rose]!  807 
Schumann  v.  Knoebel,  343,  508 
Schurger  v.  Moorman,  329,  330 
Schuylkill,  etc.,  R.  €o.  v.   Schmoele, 

380,  384,   398 
Schwartz  v.  Black,  349 
Schwartz  v.  Jones-,  276 
Schwartz  v.  Woodruff,  801,  880 
Schwinger  v.  Hickock,  127 
Scoffins  v.  Grandstaff,  281,  410,  414, 

592 

Scott  v.  Battle,  682,  712,  763 
Scott  v.  Beutel,  851 
Scott  v.  Bilgerrv,  529 
Scott  v.  Davis,  194 
Scott  v.  Desire,  754,  883 
Scott  v.  Gallagher,  61 
Scott  v.  Hanson,  907 
Scott  V.  Kirkendall,  394 
Scott  v.  Merning,  289 
Scott  v.  Xixon,  805 
Scott,  v.  Scott,  357,  454,  470 
Scott  v.  Simpson,  799,  807 
Scott  v.  Slaughter,   707 
Scott  v.  Tanner,   303,   3*32,   348,   361, 

384,  408 

Scott  v.  Thorp,  891,  903 
Scott  v.  Twiss,  2.72 
Scribner  v.  Holmes,    328 
Scripture  v.  Morris,  851 
Scriver  v.  Smith,  407,  408 
Scudder  v.  Andrews,  502»,  707 
Scudder  v.  Watt,  767,  854 
Seaburn  v.  Sutherland,  755 
Seaman  v.  Hicks,  87,  92,  804,  863 
Seaman  v.  Vawdrey,  32,  775,  776 
Seamore  v.  Harlan,  760,  764 
Searcy  v.  Kirkpatrick,  551 
Sears  V.  Broady,  335,  471 
Sears  v.  Stinson,  446 
Seaton  v.  Barry,   724 
Seaton  v.  Booth,   912 
Seaton  v.  Mapp,   30,   32 
Seaver  v.  Hull,  880 
Sebring  v.  Mer?ereau,   822 
Second  Univ.  Soc.  v.  Dugan,  843 


Ixxvi 


TABLE  OF  CASES 


[BEFE&ENCES  ABE  TO  PAGES] 


Second  Univ.  Soc.  v.  Hardy,  879 

Security  Bank  v.  Holmes,  374 

Sedgwick  v.  Hargrave,  770 

Soeley  v.  Howard,  220 

Seibel  v.  Purchase,  637,  '883 

Seiberling  v.  Lewis,  213,  875 

Seif  v.  Krebs.  845 

Seitzinger  v.  Weaver,   714 

Selden  v.  James,  904 

Seldner  V.  McCrcery,  770,  846 

Selden  v.  Wilhans/TU,  718 

Seldon  v.  Jones  -Co.,  313,  340,  400 

Selker  v.  Klein,  683 

Seller  v.  Lingerman,  141 

Semple  v.  Wharton,  374,  445 

Scnning  v.  Bush,  846 

Sessa  v.  Arthur,  491 

Seton  v.  Slade,  196,  201,  879,  882,895 

Settle  v.  Stephens,  741 

Seventy-third  St.  Bldg.  Co.  v.  Jencks, 

343 

Seward  v.  Willcock,  212 
Sewell  v.  Wilkins,  211 
Seyfried  v.  Knoblauch,  274,  275,  289, 

294,  464 
Seymour  v.   Delancy,   753,   794,   797, 

812,  813,  889 
Seymour  v.  Dennett,  667 
Seymour  v.  Jaffe,  227 
Seymour  v»  Lewis,  334 
Shackelford  v.  Hundly,  264,  267,  675, 

940 

Shackelford  v.  Miller,  104 
Sliackleton  v.  Sutcliffe,  32,  851 
Shacklett  v.  Ransom,  160 
Shadbolt  v.  Bassett,  509 
Shafer  v.  Wiseman,  473 
Shaffer  v.  Bolander.  131,  134 
Shatter  v.  Green,  300,  311,  312 
Shaffer  v.  MeOacken,  134 
Shaffner  v.  (Irut/.maohen,  589 
Shuke'*pear  vi  Delaney,  133 
Shalett  v.  Stoloff,  385 
Shanahan  v.  Chandler,  807,  867 
Shankle  v.  Ingram,  237,  387,  391 
Shanks  v.  Whitney,  252 
Shannon  v.  Childers,  391 
Shannon  v.  Marselin,  492,  493,  923 
Share  v.  Anderson.  714,  724 
Sharland  v.  Leifa-hild,  20 
Sharp  v.  Adcock,  774 
Shatturk  v.  Cunningham,  527 
Shattuok  v.  Lamb,  391 
Shaw  v.  Bixbeo,  364 
Shaw  v.  Loud,  47 
Shaw  v.  Vincent,  910 
Shaw  v.  Wilkins,  228,  235,  242 
Shaw  v.  Wright,  84 
Shaw  Bros.  v.  Outhrie,  399 


Shea  v.  Evans,  853 

Sheard  v.  Wilburn,  236 

Shearer  v.  Fowler,  711 

Shearer  v.  Ranger,  322.  916 

Shears  v.  Duserobury.  306,  464 

Sheehy  v.  Miles,  788 

Sheets  v.  Andrews.  209.  226,  229,  425 

Sheets  v.  Joyner.  366,  442,  465 

Sheffey  v,  Gardner,  336,  391,  472 

Shelby  v.  Marshall.  659 

Shelby  v.  Williams,  932 

Sheldon  v.  Crane,  393 

Sheldon  v.  Newton,  99 

Sheldon-  v.  Stryker,  66 

Shelley's  Case,  840 

Shelly  v.  Mikkleson,  550 

Shelton  v.  Codman,  409 

Shelton  v.  Johnston,  387 

Shelton  v.  Livina,  34 

Shelton-  v.  Peas,  309,  352,  403 

Shephard  v.  Carriel,  66 

Shephard  v.  Keatley,  31 

Shephard  v.  Little,  *436 

Shephard  v.  Mclntire,  556 

Shepherd  v.  Kahlc.  562 

Shepman  Mt'ge  Co.  v.  Suasman,  219 

Sherman  v.  Bean,  767 

Sherman  v.  Kane,  565 

Sherman  v.  Ranger,  393 

Sherman  v.  Savery,  649 

Sherman  v.  Williams,  381 

Sherwin  v.  Shakespear,  168 

Sherwood  v.  Johnson,  324 

Sherwood  v.  Landon,  693 

Sherwood  v.  Vandenburgh,    600 

Shervood-  v.  Wilkins,   307 

Shields  v.  Allen,  90,  647 

Shields  v.  Bogliolo,   760 

Shiffer  v.  Deitz,  200,  253 

Shiflet  v.  Orange  Humane  Soc.,  672 

Shipp  v.  Wheless,  138,  647,  659,  871, 

755,  921 

Shirley  v.  Sliirley,  681 
Shively  v.  Jones,  87 
Shively  v.  Land  Co.,  213.  62* 
Shively  v.  Semi-Tropic    Co.,   892 
Shol>er  v.  Dutton,  807,  812 
Shober  v.  Robinson,  462 
Shoemaker  v.  Johnson,  596 
Shontz  v.  Brown,  158,  490,  714 
Short  v.  Con  lee,  66 
Short  v.  Porter,    113,   142 
Short  v.  Sears,  141 
Shorthall  v.  Mitt-hell.  528 
Shor thill  v.  Ferguson,  155 
Shotwell  v.  Murray.  953 
Shoub  v.   Dunlmr.  H56 
Shouse  v.  Donne.  30.  46,  210 
Shrago  v.  Gulley,  341 


TABLE   OF   CASES 


Ixxvii 


[REFERENCES  ARE  TO  PAGES] 


Sliriver  v.  iShriver,  767,  776,  797,  807., 

809,  813,  822,  911 
Shrove  v.  Webb,  647 
Shroyer  v.  Nickell,  142,  712 
Shryer  V.  Morgan,  230 
Shultz  v.  Moore,  61 
Shultz  v.  Sanders,  131 
Shurtz  v.  Thomas,  15,  539 
Sibbald  v.  Lowrie,  196 
Sibley  v.  Bullis,   148 
Sibley  v.  Spring,  37 
Sidders  v.  Riley,  304 
Sidebotham,  Ex  parte,  194-196 
Sidwell  v  Birney,  65 
Sievert  v.  Underwood,  406 
Sikes  v.  Wild,  226,  228,  238 
Silbar  v.  Ryder,  612,  615 
Silfer  v.  Daenzer,  873 
Silliman  v.  Gillespie,  534 
Silverman  v.  Loomis,  423 
Simanovich  v.  Wood,  303,  313 
Simis  v.  McElroy,  805,  812,  813,  840 
Simmons  v.  Haseltine,  781,  784 
Simmons  v.  North,    622 
Simmons  v.  Zimmerman,   793 
Simonds  v.  Diamond  Match  Co.,  282, 

321,  335,  393,  410,  475 
Simons  v.  Patchett,  225,  243 
Simon  v.  Vandeveer,  801 
Simpson  v.  Atkinson,   525 
Simpson  v.  Belvin,   425,   453,  467 
Simpson  v.  Greeley,  592 
Simpson  v.  Hart,  *922 
Simpson  v.  Hawkins,    483,    686,    787, 

916,  923,  924,  926,  927 
Simpson  v.  Klipstein,  192,  852 
Sims  v.  Boaz,  215 
Sims  v.  Gray,   142 
Sims  v.  Lewis',    529 
Sinclair  v.  Jackson,  569 
Sine  v.  Fox,  363 
Singer  v.  Investment  Co.,  847 
Singletary  v.  Carter,   109 
Singleton  v.  Close,  845 
Singleton  v.  Cuttino,  792 
Sisk  v.  Caswell,   333 
Sisk  v.  Woodruff,  402,  465,  468 
Sisters,  etc.,  v.  Benzinger,  832 
Sivoly  v.   Scott,  670 
Sizemore  v.  Pinkston,  676 
Skaaraas  v.   Finnegan,   228 
Skally  v.  Shute,  382 
Skerrett  v.  Presbyterian  Society,  607 
Skilleen  v.  May,  *750 
Skinner  v.  Fletcher,    67 
Skinner  v.  Moore,  107 
Skinner  v.  Starner,   306 
Skull  v.   Clenister,  22 
Slack  v.  McLagan,  506 
Slack  v.  Thompson,   153 


Slade  v.  Crum,  835 

Slater  v.  Rawson,  272,  280,  421 

Slaughter  v.  Tindle,  529 

Slayback  v.  Jones,  382 

Sloane  v.   \\ells,  545 

Slocum   v.    Bray,   50 

Sloper  v.  Fish,  834 

Slowthower  v.  Gordon,  92 

Small  v.  Atwood,  263,  638 

Small  v.  Jones,  567 

Small  v.  Proctor,   600 

Small     v.     Reeves,     292,     391,     483, 

498,   508 

Smeich  v.  Herbst,  676.  683 
Smiddy  v.  Grafton,  22 
Smiley  v.  Fries,  566,  600 
Smith  v.  Aibington     Sav.     Bk.,     302, 

313 

Smith  v.  Acker,   508 
Smith  v.  Ackerman,   482,  498,  510 
Smith  v.  Arnold,  114    ~ 
Smith  v.  Babcock,  202,  743 
Smith  v.  Bangharn,   227 
Smith  v.  Bricker,  738 
Smith  v.  Brittain,   89 
Smith  v.  Brittenham,  755 
Smith  v.  Browning,  637,  883,  916 
Smith  v.  Busby,  219',  756 
Smith  v.  Cannell,   322,  571 
Smith  v.  Cansler,   888 
Smith  v.  Carney,  343 
Smith  v.  Carroll,   595 
Smith  v.  Clianey,  707,   715 
Smith  v.  Chapman,  611 
Smith  v.  Compton,   439,   453,   469 
Smith  v.  Cornell,   916 
Smith  v.  Davis,  320,  349 
Smith  v.  Death,   797 
Smith  v.  De   Rusey,   592 
Smith  v.  Detroit  Min.  Co.,   199 
Smith  v.  Dixon,   390 
Smith  v.  Ellis,  32 
Smith  v.  Fitting,  498 
Smith  v.  Fly,  364,  952 
Smith  v.  Haynes,  43,  654 
Smith  v.  Henry,  209 
Smith  v.  Hogue,  368 
Smith  v.  Hudson,  482,  690 
Smith  v.  Hughes,  278,  328,  330,  486, 

691 

Smith  v.  Hunt,  63 
Smith  v.  Hunter,  754,  831 
Smith  v.  Ingram,  379,  410,  573,  574 
Smith  v.  Jefts,  281,  330,  341 
Smith  v.  Johnson,   752 
Smith  v.  Jones,  484 
Smith  v.  Keeley,  400,  457 
Smith  v.  Kelly,  131,  132,  520,  528 
Smith  v.  Kimball,  840 
Smith  v.  Lamb,  634,   657 


Ixxviii 


TABLE  OF  CASES 


[REFERENCES   ARE    TO   PAGES] 


Smith  v.  Lewis,  212,  313,  057 

Smith  v.  Lloyd,  290,  307,  311 

Smith  v.  Lumber  Co.,  393,  394,  397 

Smith  V.  Ma. -kin,  944 

Smith  v.  McCluskey,  643 

Smith  v.  McCool,  914 

Smith  v.  McMahon,  21,  874 

Smith  v.  Montes,  565 

Smith  v.  Moore,  380 

Smith  v.  Moreman,  844 

Smith  v.  Munday,   133 

Smith  v.  Newton,  482,  694 

Smith  v.  Nolan,  415,  513 

Smith  v.  Painter,   122 

Smith  v.  Parsons,  456,  498,  552 

Smith  v.  Perry,  415 

Smith  v.  Pettus,  553,  640 

Smith  v.  Richards,  264,  335 

Smith  v.  Riordan,  809 

Smith  v.  Robertson,    212,    222,    741, 

750,  751,  680,  944 
Smith  v.  Rogers,  213 
Smith  v.  Schiele,  24 
Smith  v.  Scrifoner,  391 
Smith  v.  Shepard,  389 
Smith  v.  Sillyman,   729,   727 
Smith  v.  Smith,   211,   309 
Smith  v.  Sprague,  325,  456 
Smith  v.  Strong,  290,  431,  437 
Smith  v.  Taylor,  25,  26,  168,  789 
Smith  v.  Turner,  834 
Smith  v.  Wahl,  360 
Smith  v.  Ward,  361,  446,  934,  937 
Smith  v.  White,   323,   349,   351,   446, 

934 

Smith  v.  Williams,  562 
Smith  v.  Winn,  84,  89,  954 
Smith  v.  Wood,  624 
Smith's  Appeal,  553 
Sm  it  her  »•  v.  Steiner,  914 
Smithson  v.  Inman,  763 
Smoot  v.  Coffin,  482,  697 
Smyth  v.  Boroff,  734 
Smyth  v.  Merc.  Tr.  Co.,  249 
Smidon  v.  Salmon,  410,  421,  422 
Sucljrrove  v.  Snelgrove,  186 
Snell  v.   Mitchell,  520 
finevilly  v.  Egle,  295,  668 
Snevely  v.  Lowe,  99 
Snider  v.   Cole-man,    142 
Snider   v.   Van    IVtten.   37<\  394 
Snow  v.  Monk,  529,  868,  870 
Sno\vd«>n  v.  Derrick.  204,  669 
<n\<!. T  v.   Metker,  214 
Sn\d«T  v.  .Ii-nniii'.'-.    :;!»•'•.   400 
Snyder  v.  Lane,  311,  343,  345 
Snyder  v.  Span  Id  ing,  824 
S.  .11111   v.    Main 
Sohier  v.  Williams,  94,  785,  786,  831, 

904 


Solberg  v.  Robinson,  431,  436,  458 

Somerville  v.  Hamilton,  467 

Somers    v.    Schmidt,    461,    465,    466, 
467 

Somes  v.  Skinner,  574,  577 

Sons   of   Temp.  v.    Brown,  213,   220, 
•12-2. 

Soper  v.  Arnold,  193,  643 

Soper  v.  Kipp,   880 

Soper  v.  Sti'vi-i!-.  706 

Sorge  v.  Dickie,  801 

Sorrels  v.  McHenry,  481,  640,  739 

Soule  v.  Dixon,  497 

Soule  v.  Holdridge,  216 

Sour  Lake  Co.  v.  Jackson,  358,  709 

Souter  v.  Drake,  20,  22,  30 

Southall  v.  McKeand,  237 

Southby  v.  Hutt,  168,  195 

Southcomb  v.  Bishop,  755,  757 

So.  Pac  R.  Co.  v.  Allen,  217 

Southern  Pac,  R.  Co.  v.  Choate,  199, 
200 

So.  Pac.  R,  Co.  v.  Dore,  300 

So.  Plantation  Co.  v.  Kennedy,  581 

Southern   Wood  Mfg.   Co.  v.   Daven- 
port, 445 

Southwest  Va.  Min.  Co.  v.  Chase,  319 

Sowler  v.  Day,  607 

Spacey  v.  Close,  595 

Sparkman  v.  Davenport,  163 

Sparrow  v.  Kingman,  592,  600 

Sparrow  v.  Oxford  R.  Co.,  22 

Spaulding  v.  Fierle,   212,   888 

Spaulding  v.  Hallenbeck,  855 

Spaulding  v.  Thompson,  321 

Speakman    v.    Forepaugh,    205,    775, 
800,  817 

Spear  v.  Allison,  380,  731 

Sponce  v.  Durein.  266 

Spencer's  Case,  414 

SJK.-IKCI-  v.    Hnwe,  353 

Spencer  v.  Ionian.  847,  897 

r   v.   Saiidu-ky.   850,  889 

Spencer  v.  Topham,*  776 

Spero  v.  Sliul/..  869 

Spicer  v.  Jones,  879 

Spier  v.   I. :iman,  441,  601 

Spiller  v.  WeMlakv.  663 

SpindU-r  v.  Atkinson.   141 

spit/jingle  v.  Van  Hesarh,  67,  73 

Spoor  v.  Green,  283,  693 

Spoor  v.  Phillip-.  !•_'."> 

Spoor  v.  Tilson,  740 

Sprague  v.  Baker,  280,  337,  402,  407 

SpraM    v.   .Fcirr.'y,  31 
.    v.  Hodman,   ">•">."> 

Spring  \.  «  IM-«..  4.'5!».  4.">3 

Spring  v.  Sanford.  H47 
spring  v.  Tongue.  313 
Springle  v.  Shield?,  542 


TABLE   OF   CASES 


Ixxix 


[REFERENCES    ARE    TO    PAGES] 


Springs  v.  Harven,  142,  611 

Sprowl  v.  Blankenibaker,  847 

Spruill  v.   Davenport,  245 

Spurr  v.  Andrews,  319 

Spurr  v.  Benedict,   920,   950 

Staats   v.    Ten    Eyck,   229,   289,    290, 

435,  450 

Stack  v.  Hickey,   800 
Stackpole  v.  Robbing,  141 
Stacy  v.  Kemp,  496 
Staed  v.  Bossier,  410,  424,  451 
Stanley  v.  Irvine,  444,  726 
Staley  v.  Ivory,  678 
Stambaugh  v.  Smith,  309 
Stanard  v.  Eldridge,  277,  313,  339 
Standifer  v.  Davis,  210,  220 
Stanley  v.  Goodrich,  299 
Stansbury  v.  Taggart,  492 
Stanton  v.  Button,  67,  74 
Stanton  v.  Tattersall,  22 
Stanstmry  v.  Igelhart,  99,  101 
Staples  v.  Dean,  437 
Staples  v.  Flint,  471 
Stapylton  v.  Scott,  523,  767 
Star  v.  Bennett,  266 
Stark  v.  Hill,  501,  744 
Stark  v.  Homuth,  364 
Stark  v.  Olney,  425,  437,  456,  460 
Stark  v.  Sigelow,  48 
Starke  v.  Henderson,  660 
Starkey  v.  Neese,  482,  517,  705 
Starnes  v.  Allison,  840 
State  v.  Cent,  Poca,  Coal  Co.,  590 
State  v.  Crutchfield,  162 
State  v.  Gaillard,  8>6 
State  v.  Holloway,  252 
State  v.  Kemmerer,  5891 
State  v.  Paup,  955 
State  v.  Salyers,    131 
Stead  v.  Baker,  934 
Steadman  v.  Handy,  538 
Stearns  v.  Hendersass,  565 
Stearns  v.  Jewel,  276,  380 
Stebbins  v.  Wolf,  425,  431,  451 
Steele  v.  Adams,  437 
Steele  v.  Kinkle,  207,  257 
Steele  v.  Mitchell,  1'53 
Stehley  v.  Irvin,  444,  726 
Steiner  v.   Baughman,  364,  393,  395, 

560 

Steiner  v.  Presby.  Ch.,  904 
Steiner  v.  Zwickey,  4& 
Steinhardt  v.  Baker,  829 
Steinhauer  v.  Witman,  730,  731,  724 
Stelzer  v.  La  Rose,  49®,  504 
Step  v.  Alkire,  533 
Stephen's  Appeal,  726,  851 
Stephens  v.  Black,  550 
.Stephens  v.  Boyd,  563 
Stephens  v.  Ells,  81 


Stephens  v.  Evans,  482 
Stephenson  v.  Harrison,  239 
Sterling  v.  Peet,   160,   162,  289,  396, 

433 

Stermberg  v.  -McGovern,  540 
S'tevansi  v.  Evans,  292 
Stevens  v.  Austin,  781 
Stevens  v.  Banta,  828 
Stevens  v.  Guppy,  196 
Stevens  v.  Hampton,  61 
Stevens  v.  Jack,  468 
Stevens  v.  Van  Ness,  637 
Steverson  v.  Agee  Co.,  571 
Stevenson  v.  Buxton,  529 
Stevenson  v.  Fox,  869 
Stevenson  v.  Loehr,  384,  385 
Stevenson  v.  Mathers,  554 
Stevenson  v.  Polk,  819,  826,  879,  885 
Stewart  v.  Anderson,  571,  591 
Stewart  v.  Conyngham,  805 
Stewart  v.  Devries,  822 
Stewart  v.  Drake,  335,  345,  346,  389, 

404,  440 

Stewart  v.  Gillette,  540 
Stewart  v.  Insall,  744 
Stewart  v.  Kreuzer,  655,  807 
Stewart  v.  Noble,  245 
Stewart  v.  Stewart,  946 
Stewart  v.  West,   151,   282,  356,  385, 

395,  475 

Stewart  v.  Williams,  600 
Stiger  v.  Bacon,  928,  930 
Stiles  v.  Winder,  620 
Stinchfield  v.  Little,  160 
Stingle  v.  Hawkins,  217 
Stinson  v.  Sumner,  33&,  584 
Stipe  v.  Stipe,  397,  404 
Stitzel  v.  Copp,  886 
Stobert  v.  Smith,  825,  843 
Stock  v.  Aylward,  557 
Stockett  v.  Goodman,  56 
Stoekham  v.  Cheney,  675 
Stockton  v.  Cook,  204,  207,  924 
Stockton  v.  George  209 
Stockton  v.  Union  Oil  Co.,  910 
StockAvell  v.  Couillard,  367 
Stoekwell  v.  Mel'bern,  681 
Stoddard  v.  Smith,  640,  907,  911 
Steepler  v.  Silberberg,  300,  595 
Stokely  v.  Trout,  296 
Stokea  v.  Acklen,  900,  930 
Stokes  V.  Johnson,  914 
Stokes  v.  Jones,  573 
Stone  v.  Buckner,  206,  485,  492,  521 
Stone  v.  Darnell,  141 
Stone  V.  Gover,  670,  674 
Stone  v.  Hale,  609,  617 
Stone  V.  Hooker,  395 
Stone  v.  Lord,  220,  520 
Stone  v.  Sprague,  215 


Ixxx 


TABLE  OF  CASES 


[BEFEBE.NCES   AliE    TO   PAGES] 


Stone  v.  Young,  11 

Stoney  v.  -Shultz,  129,  135 

Storrs  v.  Barker,  954 

Story  v.  Conger,  38 

Story  v.  Kemp,  705 

Stout  v.  Gully,  94 

Stout  v.  Jackson,  229,  355,  356,  425 

Stow  v.  Stevens,  38 

Stowell  v.  Bennett,  286 

Stow  ell  v.  Haslett,  611 

Stowell  v.  Robinson,  872 

Strain  v.  Huff,  483 

Strange  v.  Watson,  526 

Stratton  v.  Kennard,  705 

Strauss  v.  Benheim,  780,  845 

Strauss  v.  Yeager,  41,  218 

Strawn  v.  Strawn,  589 

Strayn  v.  'Stone,  616 

Streaper  v.  Fisher,  415 

Streeper  v.  Alwln,  349 

Streeter  v.  Henley,  482 

Stricter  v.  Illsley,  825 

Strickland  v.  Draughanr,  56 

Strickland  v.  Duffle,  867 

Strike's  Case,  763 

Strodes  v.  Patton,  87 

Strohauer  v.  Voltz,  305 

Strong  v.  Downing,  255,  483,  923 

Strong  v.  Lord,  252.  676 

Strong  v.  Strong,  249 

Strong  v.  -Smith,  273 

Strong  v.  Waddell,     499,     549,     601, 

657,  706 

Strothers  v.  Leigh,  738 
Stroud  v.  Kasey,  131 
Strouse  v.  Drenniin.  105 
'  Stryker  v.  Vanderbilt,  77 
Stuart  v.  Dutton,  73 
Stuart  v.  Nelson,  386 
Stiibhs  v.  Page.  289 
Stuhr  v.  Butterfteld,  324,  334 
Sturgis  v.  Slocum,  284,  288 
Sturtevant  v.  Jaques,  818,  840 
Stutt  v.  Bldg.  Asson.,  313 
Stutts  v.  Browne,  141 
Stuyvesant  v.  Weil.  824 
Styen  v.  Robbin*.  d25 
Style*  v.  Blnine.  529 
Sugg  v.  Stone.  531 
Sulk  v.  Tumulty,  808 
Sullivan  v.  Hill".  426,  446 
Stimmprall  v.  Graham,  670 
Siimiwrfield  v.  White.  587,  589 
Summers  v.  Hively,  807 
Summy  v.  Rnnr*ey,  770,  867 
Sunnier  v.  Barnard,  571 
Sumner  v.  Rhodes,  61 1 
Simmer  v.  Se**ion*s  110.  Ill 
Sumner  v.  William*,    158,    160,    289, 
451,  454 


Sumter  v.  Welch.  386,  514 

Sumlerland  v.  Bell,  4S3 

Supervisors  v.  Bed.  High  Svhool,  854 

Surget  v.  Arighi,  382 

Susquehanna  Coal  Co.  v.  Quick,  410, 

423 

Sutherland  v.  DeLeon,  99 
Suthoff  v.  Marusca,  213 
Sutton  v.  Baillie,  349,  377 
Sutton  v.  Davis,  244,  839 
Sutton  v.  Page,  226,  227 
Sutton  v.  Schonwald,  95,  110 
Sutton  v.  Sutton,  39,  136,  931,  946 
Suydam  v.  Jones,  303,  411,  413,  416, 

422,  438 

SVoly  v.  Scott,  670 
Swafford  v.  Whipple,  294,  295,  425, 

437 

Swaggerty  v.  Smith,  144,  145 
Swain  v.  Burnett,  533,  790 
Swain  v.  Burnley,  934 
Swain  v.  Fidelity  Ins.  Co.,  827,  826 
Swaisland  v.  Dearsley,  32,  34 
Swan  v.  Drury,  20,  35,  37,  203,  216 
Swanson  v.  Spencer,  316 
Swanston  v.  Clark,  649 
Swartz  v.  Ballou,  458 
Swasey  v.  Brooks,  281,  409,  469 
Swayne  v.  Lyon,  824 
Sweom  v.  Steele,  224,  22«,  238,  245 
Sweet  v.  Brown,  367,  596 
Sweetser  v.  Lowell,  592 
Sweetzer  v.  Hummel,  218,  221 
Swenk  v.  Stout,  465,  471 
Swepson  v.  Johnson,  522,  540 
Swett  v.  Patrick,   433,  454,   458,   460 
Swift  v.  Doe,  563 
Swiggart  v.  Harber.  92,  100 
Swihart  v.  Cline,  037 
Swindell  v.  Richey.  653 
Sykeg  v.  Bobbins  545 
Syme  v.  Johnston,  879 
Syme  v.  Trice,  111 
Symms  v.  Jame*,  32 

T. 

Tahb  v.  Bin  ford.  355,  376 

Ta-lHT  v.  Shattiick.  611) 

Taft  v.  Kennel,  38,  675,  676,  679,  681. 

691 

Taggart  v.  Graham,  791 
Taggart  v.  Risley,  562.  597 
Taggart  v.  Stanbury,  159 
Tague  v.  MoColn,  627 
Taintor  v.  Hotiuningwav.  41 
Tallx-rt  v.  Grist,  2S4.  2«6.  462 
Talbot  V.  lied  ford.  386,  469.  472 
Talbot  v.  ]{<>mn>r.  63 
Tallnit  v.  Land  Co.,  637 
Tallx>t  v.  Sobree,  760 


TABLE   OF   CASES 


[REFERENCES    ARE    TO   PAGES] 


Talifer  Co.  v.  Falk,  646,  797 
Tallmadge  v.   Wallis,   361,   485,  489, 

502,  503,  756 

Tallman  v.  Green,  257,  558,  559 
Tandy  v.  Waesch,  8o2,  853 
Tankersly  v.  Graham,  481,  670 
Tanner  v.  Levingston,   293,  448 
Tanzer  v.  Bankers-'  Corpn.,  410,  873 
Tapley  v.  Ldbaume,  289 
Tapp  v.  Beverley,  43 
Tapp  v.  Nock,  1G4,  169,  876,  888 
Tarbell  v.  Tarbell,  457 
Tarpley  v.  Poage,  oil 
Tarlton  v.  Daily,  514 
Tarwater  v.  Davis,  36 
Tate  v.  Anderson,  144 
Taub  v.  Spector,  807 
Taul  v.  Bradford,  518,  654 
Tausk  v.  Siry,  794,  835 
Tavener  v.  Barrett,  153,  158 
Taylor  v.  Allen,  426,  438,  459,  462 
Taylor  v.  Barnes,  243 
Taylor  v.  Chamberlain,  824 
Taylor  v.  Davis,  160 
Taylor  v.  Debar,  477,  560 
Taylor  v.  Fleet,  190 
Taylor  v.  Fulmore,  514 
Taylor  v.  Gilman,  304,  325 
Taylor  v.  Harrison,  148 
Taylor  v.  Harvey,  317 
Taylor  v.  Heitz,  320,  341,  350 
Taylor  v.  Holter,  458 
Taylor  v.  Johnston,  219,  877 
Taylor  v.  Kelly,  531 
Taylor  v.  Leith,  263 
Taylor  v.  Lane,  336,  414 
Taylor  v.  Longworth,  220,  8«6 
Taylor  v.  Lyon,  483,  692,  923,  927 
Taylor  v.  Martindale,  32,  788 
Taylor  v.  Porter,  49,  235,  237,  759 
Taylor  v.  Preston,  41 
Taylor  v.  Rowland,  529,  530 
Taylor  v.  Shuffold,  590 
Taylor  v.  Stewart,  474 
Taylor  v.  Wainman,  592 
Taylor  v.  Wallace,  436 
Taylor  v.  Williams,  26,  169,  200,  782, 

789,  790,  792 
Teague  v.  Wade,  889 
Teague  v.  Whaley,  323,  332,  455,  465 
Teal  v.  Langdale,  212 
Teal  v.  Woodworth,  588 
Tederall  v.  Bouknight,  107 
Tefft  v.  Munson,  577 
Templeton  v.  Falls  Lumber  Co.,  119 
Templeton  v.  Jaickson,  734 
Templeton  v.  Kramer,  485 
Ten  Broeck  v.  Livingston,  907 
Tendring  v.  London,  520 
Tennell  v.  Dewitt,  750 


Tennell  v.  Roberts,  759  , 

Tenney  v.  East  Warren,  64 

Tennison  v.  Palmer,  563 

Tepper  v.  Niemier,  386 

Terrell  v.  Farrar,  912 

Terrell  v.  Herron,  709 

Terrett  v.  Imp.  Co.,  301 

.Territt  v.  Taylor,  574 

Terry  v.  Cutter,  133,  134 

Terry  v.  Drabenstadt,  455,  459,  460, 

461 

Terry  v.  George,  218 
Terry  v.  Westing,  864 
Terte  v.  Maynard,  545 
Tevis  v.  Richardson,  808,  812,  823 
Tewksbury  v.  Howard,  806 
Texas  Lumber  Mfg.  Co.  v.  Branch,  187 
Texas  Pac.  R.  Co.  v.  El  Paso  R.  Co., 

319 

Tex.  Ry.  Co.  v.  Gentry,  486 
Thacker  v.  Booth,  805 
Thackeray,  Re,  7i77 
Thackeray  v.  Wood,  152 
Tharin  v.  Ficklin,  20 
Thayer  v.  Clemen.ce,,  338,  434 
Thayer  v.  Palmer,  2,99,  358 
Thayer  v.  Sheriff,  123 
Thayer  v.  Torrey,  150 
Thayer  v.  Wendell,  160 
Thayer  v.  White,  36,  <64 
Thielen  v.  Richardson,  567 
Thomas  v.  Bland,  414 
Thomas  v.  Bartow,   23 
Thomas  v.  Coultas,  24&,  267 
Thomas  v.  Davidson,  82,  85,  902 
Thomas  v.  Dering,   542 
Thomas  v.  Dockins,  619 
Thomas  v.  Ellison,  343 
Thomas  v.  Fleming,  792 
Thomas  v.  Glazener,  122,  127 
Thomas  v.  Harris,  726,  727,  728 
Thomas  v.  Larz,  801 
Thomas  v.  Meier,  68 
Thomas  v.  Perry,  276 
Thomas  v.  Phillips,  920 
Thomas  v.  Powell,  705 
Thomas  v.  St.  Paul's  Ch.,  538 
Thomas  v.  Schee,  164 
Thomas  v.  Seaman,  219,  894 
Thomas  v.  Stickle,  395,  400,  402,  406, 

598 

Thomas  v.  Walden,  210 
Thomas  v.  West  &c.  Inc.,  380 
Thomas  V.  Wyatt,   47 
Thos.  J.  Baird  Co.  v.  Harris,  49,  874 
Thompson  v.  Adams,  551 
Thompson  v.  Avery,   791 
Thompson  v.  Brazile,  471 
Thompson  v.  Christian,    481.    714 
Thompson  v.  Conran,  342,  352 


Lxxxii 


TABLE   OF   CASES 


[REFERENCES  ARE  TO  PAGES] 


Thompson  v.  Dulles,    196.    671,    845, 

898 

Thompson  v.  Doe,   103 
Thompson  v.  Gould,  648 
Thompson  v.  Guthrie,   226,  236,   425, 

431 

Thompson  v.  Hart,  103 
Thompson  v.  Hawley,  35,  37,  39 
Thompson  v.  Hill,  363 
Thompson  v.  Jackson,  952 
Thompson  v.  KiK-rease,  238 
Thompson  v.  Lee,  760 
Thompson  v.  -Marshall,  606,  617 
Thompson  v.  McCord,  514 
Thompson  v.  Merrill,  586 
Thompson  v.  Miles,  637 
Thompson  v.  Milliken,  805 
Thompson  v.  'Morrow,  450 
Thompson  v.  Munger,  114,  115 
Thompson  v.  koble,  650 
Thompson  v.  Richmond,      282,      335, 

410,  41.-, 

Thompson  v.  Robinson,  168 
Thompson  v.  Sanders,  415 
Thompson  v.  Sthenectadv,     &c.,     Co., 

369 

Thompson  v.  Shattiu-k,  413 
Thompson  v.  Shepherd,  481 
Thompson  v.  -Shoemaker,  37,  500 
Thompson  v.  Thompson,  46,  305 
Thompson  v.  Tolmie,    102,   105 
Thorn  v.  Mayer,  839 
Thome  v.  Clark,  457 
Thorndike  v.  Norris,  562 
Thornton  v.  Mulquinne,  107 
Thorp  v.  Keokuk  Coal  Co.,  509,  705 
'ihrasher  v.  Pinkard,  866 
Thredgill  v.  Pintard.  441,  550,  551 
Threlkeld  v.  Campbell,  82,  84,  145 
Threlkeld  v.  Fitrhugh,  229,  425,  426, 

428,  451 

Thrift  v.  Fritz,  132 
Thrower  v.  Logan,  896 
Thurgood  v.  Spring,  510 
Thurman  v.  Cameron,  65,  66 
Thurmond  v.  Browiwon.  161,  376 
Thweatt  v.  MrLeod,  718 
Tibbett»  v.  Aver*.  502,  503 
Tibbotts  V.  Lesson,  312 
Tiernan  v.  Roland.  860,  851,  891 
Tilghman   Lumber    Co.   v.    MatheBon, 

376 

Tilley  v.  Bridges,  113 
Tillcy  v.  Land  Co.,  533 
Tilley  v.  Thomas,  RH.*V.  885 
Tillitwn  v.  Boyd,  2KO 
Tillotfon  v.  OeVnor,  779,  780.  901 
Tillotnon  V.  Orape*.  489.  500.  734 
Tillotson  v.  Kwinedy.  592.  593 
Tillotson  v.  Pritchard,  421,  431 


Tilton  v.  Emery,  565 

Timms  v.  Shannon,  484,  496,  662,  672 

Tindall  v.  Cobham,  670,  755 

Tindall  v.  Conover,  35,  36,  37 

Tinney  v.  Ashley,  35.  221 

Tinney  v.  Watson,   125 

Tinibey  v.  Kinsey,  242 

Tison  v.  Smith,  873,  891 

Title  Doc.  Co.  v.  Kerrigan,  21 

Tobin  v.  Bell,  35 

Tobin  v.  Larkin,  533 

Tod  v.  Gallagher,  555 

Todd  v.  Dowd,  87 

Todd  v.  lloggart,  643 

Todd  v.  Mclaughlin,   759 

Todd  v.  Union  Dime  Sav.  Bank,  769, 

836 

Tollensen  v.  Gunderson,  737 
Tolliver  v.  Ry.  Co.,  565 
Tolosi  v.  Lese,  846 
Tompkins   v.    Hyatt,    196,    199,    671, 

756,  895 

Tomlin  v.  McChord,  834 
Tomlinson  v.  Savage,  806,  913 
Tone  v.  Brace,  921 
Toney  v.  Dewey,  307 
Toney  v.  Toney,  638 
Tong  v.  Matthews,  425 
Toomey  v.  Read,  155 
Toole  v.  Toole,  81,  831,  896 
Tooley  v.  Chase,  607 
Tooley  v.  Kane,  92 
Toops  v.  Snyder,  615 
Topliff  v.  Atl.  L,  &  Imp.  Co.,  857 
Topp  v.  White,  260,  533,  637,  794 
Torranoe  v.  Bolton,  29,  32 
Tourville  v.  Xaish,  492,,  510 
Towles  v.  Turner,  130 
Town  v.  Needham,  419 
Towns  v.  Barrett,  634 
Townsend  v.  Hubbard,  58 
Townwnd  v.  Lewis,  8791 
Townsend  v.  Morris,  356,  376,  471 
Townsend  v.  Smith,   144 
Townsend  v.  Tufts,  211 
Townsend  v.  Ward,  305 
Townsend  v.  Weld.  303,  311.  438 
Townahend  v.  Goodfellow,  843,  891 
Tra<-y  v.  Gunn,  238 
Trapier  v.  Waldo,  81.  95 
Trask  v.  Vinson,  227.  500.  523 
Traver  v.  Hulstead,  38,  215 
TrAt  v.  Orono.  743 
Tremaine  v.  Lining,  153 
Trcptow  v.  Bu«c,  122 
Trevino  v.  Cantu,  547,  629,  940 
Trevivan  v.  Lawrence,  577 
Trire  v.  Kayton.  328 
Trinity  Church  v.  Higgins.  301 
Trigg  v.  Reade,  951,  952 


TABLE  OF  CASES 


Ixxxiii 


[BEFEBENCES   ABE    TO   PAGES] 


Trimmer  v.  Gormen,  815,  916 

Tripp  v.  Sieler,  201,  769 

Troost  v.  Davis,  555 

Tropico  Land  Co.  v.  Larrtbourne,  558 

Troutman  v.  Gowing,  538 

Troxell  v.  Johnson,  385 

Troxell  v.  Stevens,  385,  414,  573,  592 

Trudeau  v.  Fischer,  581 

True  v.  N.  Pacific  R.  Co.,  877 

Trull  v.  Eastman,  572,  593,  599 

Trulock  v.  Peeples,  65 

Trumbo  v.  Lockridge,  483,  933 

Trust  Co.  v.  Muse,  84 

Trustees  v.  Lynch,  648,  855 

Trustees  1ST.  Y.  Pub.  School,  in  re,  816 

Truster  v.  Snelson,  297 

Trutt  v.  Spott,  358 

Tryce  v.  Dittus,  886 

Tubbs  v.  Gatewood,  70 

Tucker  v.  Clarke,  582 

Tucker  v.  Gordon,   130,  743 

Tucker  v.  MtArthur,  336,  409 

Tucker  v.  Thraves,  222,  526 

Tucker  v.  Woods,  38,  S54 

Tudor  v.  Taylor,  144 

Tufts  v.   Adams,   280,  312,   338,  347, 

389,  434 

Tuggle  v.  Hamilton,  398 
Tuite  v.  'Miller,  277,  393,  558 
Tukey  v.  Foster,  404 
Tull  v.  Royston,  315 
Tully  v.  Davis,  66 
Turco  v.  Trimboli,  844 
Turk  v.  Skiles,  93,  131 
Turnbull  v.  Gadsden,  746 
Turner  v.  Beaurain,  32 
Turner  v.  Goodrich,    402,    403,    406, 

439,  458 

Turner  v.  Harvey,  256 
Turner  v.  Howefl,  203 
Turner  v.  McDonald,   796,   810 
Turner  v.  Miller,  459 
Turner  v.  Nightingale,  636 
Turner  v.  Reynolds,   645,   852 
Turner  v.  State  Bank,  329 
Turner  v.  Turner,   955 
Turn  Verein  v.  Kionka,  168 
Turney  v.  Hemminway,  653 
Tuskegee  Land  Co.  v.  Realty  Co.,  310, 

325,  337,  349,  351 
Tustin  v.  Faught,  48 
Twambly  v.  Henley,  272 
Tweddell  v.  Tweddell,  305 
Tweed  v.  Mills,  22,  31,  40 
Twohig  v.  Brown,  206,  512,  655 
Tybee  v.  Webb,  705 
Tyler  v.  Young,  36,  500 
Tymason  v.  Bates,  364 
Tyree  v.  Williams,  836 
Tyson  v.  Belcher,  111 


Tyson  v.  Brown,  119 
Tyson  v.  Eyrick,  226,  237 
Tyson,  v.  Passmore,  523 

U. 

Uhl  v.  Laughran,  828 
Uhl  v.  Ohio  R.  R.  Co.,  477 
Uhler  v.  Hutehinson,  62 
Underwood  v.  Birchard,  380 
Underwood  v.  Parker,  678 
Underwood  v.  West,  755 
Ungrich  v.  Shuff,  681,  869 
Union  Bag  Corp'n  v.  Bischoff,  874 
Union  Mut.  Life  Ins.  Co.  v.  Crowl,  76 
Union  Nat.  Bank  v.  Pinner,  928,  930 
Union  Pac.  R.  Co.  v.  Barnes,  705,  940 
Union    Safe    Dep.    Co.    v.    Chisholm, 

163,   165 

Union  Stave  Co.  v.  Smith,  670 
United  States  v.  Bank  of  Georgia,  705 
United  States  v.  Cal.,  etc.,  Land  Co., 

56 

United  States  v.  Duncan,  126 
University  v.  Joslyn,  381,  391 
University  v.  Lassiter,  110 
Updike  v.  Abel.  265 
Upham  v.  Hamil,  123,  125 
Upperton  v.  Nicholson,  168 
Upshaw  v.  Debow,  261 
Upson  v.  Horn,  96,  108 
Upton  v.  M'aurice,  818,  873 
Upton  v.  Smith,  794 
Upton  v.  Trebilcock,  266 
Urmston  v.  Pate,  705,  946 
Utica,  etc.,  R.  Co.  v.  Gates,  347 

V. 

Vail  v.  Xelson,  39,  200 
Valle  v.   Clemens,  596 
Valle  v.  Fleming,  140,   142,  556 
Vanada  v.  Hopkins,  153,  159 
Van  Amringe  v.  Morton,   188 
Van  Benthuysen  v.  Grasper,  664 
Vance  v.  Fore,  54 
Vance  v.  House,    687,    695,   702,   806, 

923,   925 

Vame  v.  Schuyler,  60,  63 
Vance  v.  Shroyer,  678 
Vancouver  v.  Bliss,  195 
Vandever  v.  Baker,  33,  92,  109 
Vandever  v.  Reynolds,  665 
Vanderkarr  v.  Vanderkarr,  385 
Van  Epps:  v.  Harrison,  756 
Van    Epps    v.    Schenectady,    38,    149. 

154,   159,  911 
Van  Gundy  v.  Shewey,  79,5,  810,  819, 

847 

Van  Hoesen  v.  Benham.  276 
Van  Home  v.  Grain,  412 


Lxxxiv 


TABLE  OF  CASES 


[REFERENCES   ARE    TO   PAGES] 


Vanity  Fair  Co.  v.  Hayes,  639 

Van  Horn  v.  Stuyvesant,  809,  870 

Van  Keuren  v.  .Siedler,  528 

Van  Lew  v.  Parr,  514,  739,  690 

Vann  v.  Denson,  563 

Van  Ness  v.  Bank,  61 

Van    Ness   v.    Roval   Phosphate  Co., 

330,  371 

Van  Nest  v.  Kellum,  292 
Van  Xostrand  v.  Wright,  275 
Vannoy  v.  Martin,   124 
Van  Rensselaer  v.  Kearney,  320,  477, 

597 
Van    Rensselaer    v.    Van    Rensselaer, 

394 

Van  Riper  v.  Wickersham,  767,  880 
Van  Riper  v.  Williams,  923 
Van  Riswick  v.  Wallach,  734 
Van  iSchaick  v.  Lese,  803,  854 
Vanscoyoc  v.   Keniler,   144,   145 
Van  W'aggoner  v.  McEwen,  492,  923 
Van  \\Vgner  v.  Van  Nostrand,  275, 

332,  359 

Van  Winkle  v.  Earl,  306 
Van   Wyck  v.   Richnian,  825 
Vanlanian  v.  Lawson,  24,  38,  153 
Vark-k  v.  Briggs,  418 
Varick  v.  Edwards,   594 
Vary  v.  Smith,  593 
Vattier  v.   Hinds,    186 
Vattier  v.  Lytle,  122.  145 
Vaughn  v.  Bunk.  227 
Vaughn  v.  Butterfield,  855 
Vaughn  v.  Smith.  264,  745 
Vaughn  v.  Stuzaker,  277 
Vaughn  v.   Wells,   923 
Veeder  v.  Fonda.  5)2 
Veit  v.  -MeCauslan.  275,  297 
Verdin  v.  Slot-urn,  132 
Vermeule  v.  Hover,  570 
Vernol  v.  Vernol.  202,  718 
Vest  v.  Weir,  122,  656 
Vett  v.  Sohwob.  837 
Veve  v.  Sanchez,  563 
Vu-k  v.  Percy,  484.  933 
Viele  v.  R  Co.,  197 
Vielle  v.   Osgood,   46 
Villoni  v.  Feintttein,  682 
Vim-ent  v.  Hick**,  398 
Vivian  v.  Stevens,  483 
Vining  v.  Leeman,  482,  755,  678 
Vognild  v.  Voltz,  795.  797 
Volz  v.  Steiner.  826.  870 
Voorhees  v.  Bank,  92,  94,  98 
Voorheea  v.  I)e  Meyer,  535.  543,  799, 

879,  880 

Voorhis  v.  Bank,   94 
Voorhis  v.  For»yth,  318,  353 
Voxe  v.   Brad*treet,  54 
Vought  v.  Willinm^.  785,  788,  815 


Vreeland  v.  Blauvelt,  575,  770,  7?5, 

842 
Vrooman  v.  Phelps,  742 

W. 

Wachendorf  v.  Lancaster,  437 
Wacht  v.  Hart,  653 
Wacker  v.  Straul),  45.1,  452,  483 
Waddell  v.  \\  uddell,   842 
Waddell  v.  \\olfe,   30,    31 
Wade  v.  Barlow,  440,  563 
Wade  v.  Comstoek,  470 
Wade  v.  Greenwood,   806 
Wade  v.  Killough,  220,  670 
Wade  v.  Lindsay,  573 
Wade  v.  Percy,  929 
Wade  v.  Thufman,  740,  719 
Wadhams  v.  Inness,  444 
Wadhams  v.  Swan,  276,  348,  492 
Wadk-k  v.  Mace,  55 
Wadleigh  v.  Glines,  588,  589 
Wadsworth  v.  Wendell,  78 
Wagenblast  v.   Washburn,  616 
Waggener  v.  Howsley,  439,  440 
Waggle  v.  Worthy,  376 
Wagoner  v.  Wagoner,  798 
Wagner  v.  Finnegan,   395 
Wagner  v.  Hodge,  817,  831,  839 
Wagner  v.  Perry,  207,  254,  260,  856 
Wailes  v.  Cooper,  484,  492,  932,  933 
Wait  v.  Maxwell,    275 
Wait  v.  Smith,   177 
Wakeman    v.    Dutchess    of    Rutland, 

152,   159,  946 

Walbridge  v.  Day,  122.  123,  743 
Walderaeyer  v.  Loebig,  374 
Walden  v.  Gridlev,  122.  145,  146 
Waldo  v.   Long.  345,  453 
Waldron  v.  McCarty.  401.  403,  404 
Waldron  v.  Zollikoffer,  39 
Wales  v.  Bogne,  96 
Walke  v.   Moody,    124 
Walken  v.  Xokken.  874 
Walker  v.  Arnold,  "562 
Walker  v.  Barnes.  916 
Walker  v.  Constable,  645,  685 
Walker  v.  Denne,  403 
Walker  v.  Deaver,     283,     322,     336, 

346,  374 

Walker  v.  France.  731,  718 
Walker  v.  Gilbert,   484,   690 
Walker  v.  Gilman.   825 
Walker  v.  Hall,  372,  586 
Walker  v.  Johnnon.  683 
Walker  v.  Moore,  225.  228.  234 
Walker  V.  Ogden.    550.    760 
Walker  v.  Quigg.  203 
\Valker  v.  Robinson.   389 
Walker  v.  Ruffner,    111 
Walker  v.  Towns.    068 


TABLE   OF   CASES 


Ixxxv 


[EEFEEENCES  ARE  TO  PAGES] 


Walker  v.  Wilson,  274,  486 

Wall  v.  Mason,  555 

Wallace  v.  Harmsted,   188 

Wallace  v.  Maxwell,  590 

Wallace  v.  McLaughlin,  526,  533,  641 

Wallace  v.  Minor,  573 

Wallace  v.  Pereles,   421,  461 

Wallace  v.  Talbot,  445 

Wallach  v.  Riverside   Bank,   21,   22, 

39,  204,  652,  793 
Walling  v.   Kinnaird,  220 
Wallison  v.  Watkins,  499 
Walquist  v.  Johnson,   329 
Walsh  v.  Barton,  765,  862 
Walsh  v.  Calvin,  890 
Walsh  v.  Dunn,  454,  466 
Walsh  v.  Hall,  250,  743 
NValmsley  v.  Stalnaker,  934 
Walter  v.  De  Graaf,  48,  828 
Walter  v.  Johnston,    488 
Walters  v.  Miller,    2ilO 
Walters  v.  Mitchell,    216,    664,    835, 

868 

Walther  v.  Briggs,  306,  568 
Walton  v.  Bonham,    761,   923 
Walton  v.  Campbell,    414,   458 
Walton  v.  Cox,  141,  461,  467 
Walton  v.  Meeks,  236,  782,  783,  795, 

816 

Walton  v.  Reager,  114,  115 
Walton  v.  Waterhouse,    564 
Waltz  v.  Barroway,  103 
Wamsley  v.  Hunter,  640' 
Wanner  v.  Sisson,  609,  611 
Ward  v.  Ashbrook,  293,  322,  395 
Ward  v.  Bartholomew,  159 
Ward  v.  James,  211,  873,  874 
Ward  v.  Mclntosh,  474 
Ward  v.  Packard,   256 
Ward  v.  Williams,   114,  116 
Ward  v.  Wiman,  254,  743,  747 
Warde  v.  Dixon,  776 
Wardell    v.    Fosdick,    13,    743,    747, 

719 

Ware  v.  Houghton,  484 
Ware  v.  Weatherall,  427,  435 
War  field  v.  Erdman,  316 
Waring  v.  Ward,  305 
Wark  v.  Willard,  580 
Warne  v.  Greenbaum,  813 
Warner  v.  Hamill,  173 
Warner  v.  Hatfield,  37,  855 
Warner  v.  Helm,  127 
Warner  v.  Sisson,   609,   611 
Warren  v.  Banning,    774,    782,    784, 

843 

Warren  v.  Carey,  255 
Warren  v.  Richardson,   190 
Warren  v.  Richmond,  209" 


Warren  v.  Stoddart,  300, 342,  405, 510 
Warren  v.  Wheeler,    227 
Warwick  v.  Norvell,  927 
Washer  v.  Brown,  553 
Washington  v.  Mining  Co.,  212 
Wash.   City  Bank  v.  Thornton,   151, 

300,  336,  360 

Waslee  v.  Rossman,  300,  564 
Waters  v.  Bagley,   335 
Waters  v.  Mattingly,   943 
Waters  v.  Thorn,    194 
Waters  v.  Travis,  534,  9(11 
Watkins  v.  Holman,  843 
Watkins  v.  Hopkins,    672 
Watkins  v.  Warsell,    562,    581 
Watkins  v.  Wimings,    136 
Watson  v.  Baker,    264 
Watson  v.  Boyle,  794 
Watson  v.  Church,  825 
Watson  v.  Hoy,  82 
Watson  v.  Kemp,   680 
Watson  v.  Reissig,    127 
Watt  v.  Rogers,  199 
Watts  v.  Fletcher,  -332 
Watts  v.  Holland,   790,  897 
Watts  v.  Parker,  272 
Watts  v.  Waddle,  759,  843,  894 
Watts  v.  Wellman,  306 
Waugh  v.  Land,   158 
Way  v.  Raymond,  213 
Wead  v.  Larkin,  421 
Weatherbee  v.  Bennett,  323 
Weatherford  v.  James,  543 
Weaver  v.  Esary,  825,  915 
Weaver  v.  Wilson,  482,  694 
Webb  v.  Alexander,  401,  472 
Webb  v.  Chisholm,    769 
Webb  v.  Coons,  141 
Webb  v.  Holt,  374,  454 
Webb  v.  Huff,  71 
Webb  v.  Hughes.  201,  883 
Webb  v.  Kirby,  30 
Webb  v.  Pond,  301 
Webb  v.  Spicer,   644 
Webb  v.  Stephens,  201,  874,  891 
Webb  v.  Wheeler,   275,   450 
Webber  v.  Cox,   131 
Webber  v.  Webber,    282 
Weiber  v.  Anderson.  439,  444 
Webster  v.  Conley,  158 
Webster  v.  Hall,  68 
Webster  v.  Haworth,   129,   741 
Webster  v.  Kings    Co.    Tr.    Co.,    651, 

779,  850,  870,  874,  914 
Weddall  v.  Nixon,  779 
Wedel  v.  Herman,  75 
Weed  Machine  Co.  v.  Emerson,  592 
Weeks  v.   Grace,   327,   383 
Weeks  v.  Toms,  824 
Weems  v.  Love  Manf'g  Co.,  88 


1XXXV1 


TABLE  OF  CASES 


LaCFEBCMCES  ASE   TO  PAGES] 


Weeing  v.  MeCaxiglian,  370 

Weghorst  v.  Clark,  313 

Weidenhold  v.  Koehler,  846 

Weidler  v.  Bank,  122,  129,  732 

Weightman  v.  Reynolds,   586 

Weightiuan  v.  -Spofford^  705 

Weil  v.  Radley,  780,  805,  869 

\Veinheimer  v.   RUSK,  870 

Weintraub  v.  Seigel,  844,  846,  869 

Weinstock  v.  Levison,  754,  828 

Wei  so  v.  Grove,  738 

Weisa  v.  Binnian,  207 

Weiss  v.  Clamitz,  303 

Weissbee  v.  Wallace,  801 

Weitzel  v.  Leyson,  675,  874,  890,  892 

Welbon  v.  Welbon,  368 

Welch  v.  Davis,   161 

Welch  v.  Dutton,  26,  599 

Welch  v.  Hoyt,  1,16 

Welch  v.  Lawson,  224 

Welch  v.  Matthews,  894 

Welch  v.  Sullivan,  66 

Welch  v.  Watkins,  640 

Weld  v.  Traip,  321 

Wellborn  v.  Finley,  562- 

Wellborn  v.  Se<christ,   523 

Weller  v.  Trust  Co.,  328 

Welles  v.  Cole,  62 

Wellman  v.  Dismukes,  484,  640 

Wells  v.  Abernathy,  227,  232 

Wells  v.  Blackman,  563 

Wells  v.  Day,   19,  212,  912 

Wells  v.  Glos,  598 

Wells  v.  Lewia,  890 

Wells  v.  Ogden,  616 

Wells  v.  Smith,  221 

Wells  v.  Walker,    186 

Wells  v.  Yates,    614 

Wells'  Est.,  In  re,  300 

Welsh  v.  Bayard,  530 

Welsh  v.  Davis,  842 

Welsh  v.  Dutton,  26,  599 

WelKhhillig  v.  Drennart.  604 

Wendell  v.  North,  461.  464 

Wentworth  v.  Goodwin,  484 

Werner  v.  Wheeler.  290,  557,  848 

Wes<-o  v.  Kern,  410,  410,  423 

Wesley  v.  KeK  767.  775,  809 

Westwl  v.  Cramer,  860 

West  v.  Shaw,  640 

West  v.  Spanieling,  300 

West  v.  \Stewart,  275 

Went  v.  Went,  430 

Wentall  v.  Aunt  in,  878 

West  IVway  Real  Entate  Co.  V.  B«r- 

lias,  715 

Wentbrook  r.  McMillan,  516 
West   Coast   Mfg.    Co.   v.    Imp.    Co., 

426,  445 
Wester  field  v.  Cohen,  807 


Western  Mining  Co.  V.  Coal  Co.,  592, 

594 

Westervelt  v.  Mattheson,  538 
Westervelt  v.   Menly,  486 
\Vestfall  v.  Wanhlagel,  806 
Westhafer  v.  Koons,  824 
Westheimer  v.  Reed,  600 
West   Mich.   Park  Asso.  v.  Ry.   Co., 

571 

Westrope  v.  Chambers,  281,  400 
Wetherbee  v.  Bennett,  350 
Wetherell  v.   Brobst,  533 
Wetmore  v.  Brm-e,  637,  645,  048,  863, 

854 

Wetternach  v.  Investment  Co.,  880 
Wetzel  v.  RJthcreek,  272,  391,  442 
Weyand  v.  Tipton.  844 
Weymouth  v.   Howe,  803 
Wiialen  v.  Stewart,  801 
Whallon  v.  Kaufman,  366,  367 
Whatcom  v.  Wright,  387,  391 
Whatley  v.   Patton,  431 
Wheat  v.  Dotson,  481,  503,  755,  683 
Wheatley  v.  Slade  532 
Wheaton-  v.  Wheaton,  954 
Wheeler  v.  Hatch,  272,  289,  445 
W'heeler  v.  McBa-in,  ;>62 
Wheeler  v.  Sohier,  4-15,  4  IB 
Wheeler  v.  Standley,  484,  941 
Wheeler  v.  State,  705 
Wheeler  v.  Styles,  226,  441 
Wheeler  v.  Tracy,  20,  852 
Wheeler  v.  Wayne  Co.,  358.  371 
Wheeling  Cr.  Gas  Co.  v.  Elder,  212, 

527 

Wlieelock  v.  Over»hiner,  469 
Wheelock  v.  Thayer,  421 
Whisler  v.  Hicks*  482.  498,  508,  510 
Whi taker  v.  Willis,  800 
WhitbcVk  v.   Cook,  277,  327 
Whitbeck  v.  Waine.  491 
White  v.  Bates,  825 
White  v.  Brcfcaw,  367,  596 
White  v.  Dobson,  533 
White  v.  Ewing,   486,  487 
White  v.  Fc.ljamhe,   13»,  l."»8,  814 
White  v.  Furtzwangler,  489 
White  v.  (litoon,   318 
White  v.  Grave*,   187 
White  v.  Hardin,  755 
White  v.  Harvey,  14,  228,  638 
White  v.  Lowery,  743,  720 
White  v.  MCXKTH,  521 
While  v.  Murray,  718 
Whitr  v.  Needbatn,  878 
White  r.  Park,  144 
White  v.  Patton.   573,   577 
While  v.  Prenly,  415 
White  v.  Savings  Bank,  868 
White  v.  Sayre,  57 


TABLE  OF  CASES 


Ixxxvii 


[BEFEBESCES  ABE  TO  PAGES] 


White  v.  Seaver,  740 

White  v.  Stevens,  283 

White  v.  Stewart,  36.7,  370,  462 

White  v.  Stretch,  928 

White  v.  Sutherland,   249 

White-  v.  Tucker,  236,  T59 

White  v.  Whitney,     389-,     415,     419, 

433,  434 

White  v.  Wilhams,   466 
Whitehead  v.  Brown,    609 
Whitehead  v.  Carr,    154 
Whitehill  v.  Gotwalt,  371,  372 
Whitefturst  v.  Boyd,  36,  640 
Whiteman  v.   Castlefourg,  673 
Whitener  Realty  Co.  v.  Hitter,  790 
Whitesides  v.  Cooper,   375 
Whitesides  v.  Jennings,   227 
Whitesides  v.  Magruder,    332,    348 
WThite\vorth  v.  Pool,  153 
Whiting  v.  Brooks,  145 
Whiting  v.  Dewey,   160,  452 
Whitley  v.  Johnson,  563 
Whitlock  v.  Denlinger,  248,  482,  678, 

692 

Whitlock,  Ex  parte,  829 
Whitman  v.  Westman,  622 
Whitmore  v.  Parks,   126 
Whitney  v.  Allaire,  14,  198,  719>,  743, 

746,  747 

Whitney  v.  Arnold,  73 
Whitney  v.  Cochran,   675 
Whitney  v.  Crouch,     248,     249,     250, 

665,  873,  889 
Whitney  v.  Dinsmore,   2SO,   338,   404, 

409 

Whitney  v.  Groo,   804 
Whitney  v.  Lewis,    485,    501,   502 
Whitney  v.  Railroad   Co.,   323 
Whitney  v.  'Smith,   617 
Whitney  Co.  v.  Smith,  887 
Whitson  v.  Grosvenor,  562,  566 
Whittaker  v.  Kone,  276 
Whittaker  v.  Miller,  46 
Whittemore  v.  Whittemore,   532,   910 
Wliittemore  v.  Farrington,  608,  705, 

714,  947 

Whitten  v.  Krick,  311,  336,  352,  374 
Whittey  v.  Lide,  923 
Whittington  v.  Corder,  22 
Whitworth  V.  Stuckey,  516,  680,  696, 

703 

Whitzman  v.  Hirsh,  412,  436 
Wickham  v.  Ernest,  670 
Wickham  v.  Evered,    755 
Wic'kliff  v.  Clay,  637,  759,  761 
Wickliff  v.  Lee,'  755,  811 
Wicklow  v.  Lane,  565 
Wickman  v.  Rdbinson,  681 
Widmer  v.  Martin,  899 
Wieland  v.   Renner,   805 


Wiemann  v.  Steffen,  792,  811 

Wiesner  v.  Zaun,  562 

Wiggins  v.  McGimpsey,  37,  203,  207, 

387,  652,   665,  671 
Wiggins  v.  Fender,     401,     410,     423, 

459 

Wiggins  V.  Stephens,  426,  432 
Wight  v.  Gottschalk,  376 
Wight  v.  Shaw,  596 
WTightman  v.  Reside,  905 
Wilburn  v.  McCalley,  119 
Wikox  v.  Latin,   193,  756 
Wilcox  v.  Lucas,  620 
Wilcox  v.  Musche,   340 
Wilcoxon  v.  Galloway,   533 
Wilde  v.  Fort,  190,  233 
Wildemeyer  v.  Loebig,  369 
Wilder    v.    Ireland,    271,    275,    380, 

462,  466,  475 
Wilder  v.  Smith,  933 
Wilder  v.  Tatum,  228,  433 
Wiley  v.  Fitzpatrick,   691,   925,   927 
Wiley  v.  Howard,  255,  670,  678,  877 
Wiley  V.  White,  138,  685,  707 
Wilgus  v.  Hughes,  547 
Wilhelm  v.  Federgreen,  812 
Wilhelm  v.  Fimiple,     2d3,     237,     652, 

7<63 

Wilkerson  v.  Allen,  83 
Wilkerson  v.  Chadd,   482 
Wilkins  v.  Hogue,   485,   934 
Wilkins  v.  Irvine,  652 
Wilkinson  v.  Green,  549 
Wilkinson  v.  Olin,  311 
Wilkinson  v.  Roper,  54 
Willan  v.  Willan,  9.38,  957 
Willard  v.  Smith,  227 
Wlllard  v.  Twitchell,  271 
Wilier  v.  Weyand,  539 
Willets  v.  Burgess,  340,  346 
William  Farrell  Co.  v.  Deshon,  511 
Williams  v.  Beeman,  410,  436,  451 
Williams  v.  Baker,   498 
Williams  v.  Beatty,  324 
Williams  v.  Brieker,  774,  785,  842 
Williams-  v.  Brigg,    805 
Williams  v.  Burg,  415,  459,  464,  466 
Williams'  v.  Burrell,  443.  453 
Williams  v.  Carter,  759,  801 
Williams  v.  Cudd,  -625 
Williams  v.  Cummings,    131 
Williams  v.  Daly,  169,   171 
Williams  v.  Doolittle,  849 
Williams  v.  Edwards,   533,   542,   544, 

790,  791 

Williams'  v.  Fowle,  301 
Williams  v.  Fryburger,   491 
Williams  V.  Gilbert,  887 
Williams  v.  Glenn,  82,  85,  91 
Williams  v.  Glenton,  243 


Ixxxviii 


TABLE  OF  CASES 


ULFEEEXCES  ABE  TO  PAGES] 


Williams  v.  Hathaway,  714 
Williams  v.  Hogan,    272,   276 
Williams  v.  Johnson,  121 
Williams  v.  Lee,  922 
Williams  v.  Mansell,   522 
Williams  v.  Mark,  777 
Williams  v.  'McDonald,  113 
Williams  v.  Mitchell,  761 
Williams  v.  Monk,  649 
Williams  v.  O'Donnell,  410 
Williams  v.  Pendleton,  547 
Williams  v.  Peters,   562 
Williams  v.  Pope,  599 
Williams  v.  Porter,  805,  899 
Williams  v.  Potts,  37 
Williams  v.  Reed,  711 
Williams  v.  Rogers,  759,  761,  764 
Williams  v.  Sax,  496 
Williams  v.  Schennbri,   828 
Williams  v.  Seawell.  831 
Williams  v.  Shaw.   394,  462 
Williams  v.  Thomas,    260,    269,    440, 

667 
Williams  v.  Wetherbee,      281,      416, 

423,  464,  469,  474 
Williams  v.  Williams,    562 
Williams  v.  Wilson,  760 
Williamson  v.  Banning,  835 
Williamson  v.  Field,  82,  822 
Williamson  v.  Johnston,    125 
Williamson  v.  Neeves,  649,  876 
Williamson  v.  Raney,  661,  755 
Williamson  v.  Test,'  437 
Williamson  v.  Williamson,  454 
Willis  v.  Saunders,  616,  618,  622 
Willison  v,  Watkins,  550 
Wills  v.  Fisher,  778 
Wills  v.  Porter,    193 
Wills  v.  Primm,  471,  473 
Wills  v.  Slade,  804 
Wills  v.  Van   Dyke,   123 
Willson    v.    WiUson,    289,    343,    425, 

451 

Wilmot  v.  Wilkinson,   30.  212 
Wilsey  v.  Dennis,  149,  799,  860 
Wilson  v.  Helen,  859 
Wilson  v.  Breyfogle,  747 
Wilson  v.  Bumfield.  539,  911 
Wilson  v.  Carey,  33 
Wilson  v.  Coehran.     323,     407,     421, 

723,  724,  726,  720 
Wilson  v.  Cox,  533 
Wilson  v.  Dcen.  648 
Wilson  v.  Forbes,  274,  283,  291 
Wilson  v.  Getty,  37,  38,  647 
Wilson  v.  Higbee,  260,  722 
Wilaon  v.  Holden,  16 
Wilson  v.  Holt.  140.  142 
Wilf»on  v.  Inloes.  54 
Wilson  v.  Irish,  148.  385,  734 


Wilson  v.  Jeffries,  796 

Wilson  v.  Johnson,  55 

Wilson  v.  Jordan,  481 

Wilson  v.  King,  622 

Wilson  v.  Korte,  794,  849,  874 

Wilson  v.  Mason,  186 

Wilson  v.  MeElwee,   464 

Wilson  v.  McNeal,  76 

Wilson  v.  M«Veagh,   844 

Wilson  v.  'Moore,  511 

Wilson  v.  Parshall,  297 

Wilson  v.  Peele,  379,  452 

Wilson  v.  Raben,  83 

Wilson  v.  Riddick,  203 

Wilson  v.  Robertson,  228 

Wilson  v.  Seybold,  526,  801 

Wilson  v.  Shelton,    437 

Wilson  v.  Smith,  94,  109 

Wilson  v.  Spencer,  224,  226 

Wilson  v.  Stewart,  625 

Wilson  v.  Tappan,  799,  838,  879 

Wilson  v.  Taylor,  417 

Wilson  v,  Traer,  61 

Wilson  v.  Vogel,  772,  839 

Wilson  v.  Vreeland,   471 

Wilson  v.  Wetherly.  550 

Wilson  v.  White,  115,  118,  822 

Wilson  v.  Widervham,   272,  420 

Wilson  v.  Williams,  538 

Wilson  v.  Wood,   148,   149,   150 

Wilson  v.  Zajioe,  915 

Wilson's  Appeal,  729>,  731,  724 

Wilson's  Case,  181 

Wilt  v.  Franklin,  437 

Wiltsie  v.  Shaw,  842 

Wilty  v.    Hightower,    385.   391,   403, 
734,  696,  933 

Wimberg  v.  Schwegeman,  678,  923 

Wimberly  v.  Collier,  464 

Winans  v.  Huyck,  614 

Winch  v.  Bolton,  483 

Winders  v.  Sutherland,  417 

W indie  v.  Bonebrake,  555 

Winfrey  v.  Drake.  581,  582,  939 

Wing  v.  Dodge,  113 

Wingard  v.  Copeland,  648,  868 

Wingate  v.  Hamilton,  534.  639 

Wingo  v.  Brown,  123,   125,   129 

Wingo  v.  Parker,  562 

Winkler  v.  Rigging,  65 

Winkler  v.  Jerrue,  21,  887 

Winne   v.    Reynolds,   655,    8Tr3,    908, 
909 

Winningham  v.  Pennock,  336,  347 

Winnipiseagee    Paper   Co.   v.   Eaton, 
445,   454 

Winnipiscogee  Lake  Mfg.  Co.  v.  Par- 
ley, 607 

WfaMknr  v.  Clark.   142 
v.  C'rowell,    141 


TABLE  OF  CASES 


Ixxxix! 


[EEFEBENCES  AEE   TO  PAGES] 


Winslow  v.  McCall,  3&1 

Winstead  v.  Davis,  484 

Winter  v.  Dent,  130 

Winter  v.  Elliott,  764 

Winter  v.  Stock,  773^ 

Wintermute  v.  Snyder,  960 

Winton  v.  Sherman,  219 

Wise.  Cent  R.  Co.  v.  Sehug,  330 

Wise  v.  Postlewait,  63 

Wisely  v.  Findlay,  56 

Wiswall  v.  McGowan,  528,  542 

Witbeck  v.  Waine,  718 

Withers  v.  Baird,  61,  154,  640,  834 

Withers  v.  Bank,  426,  439,  451 

Withers  v.  Crenshaw,   364,  446 

Withers  v.  Morell,  926 

Withers  v.  Powers,   391 

Witherspoon  v.  McCalla,  763 

Withey  v.  Munford,  416 

Withouse  v.  Schaack,  614.  615 

Wittbecker  v.  Watters,  620 

Witte  v.  Koerner,  819 

Wittenberg  v.  Groves,  520 

Witter  v.  Biscoe,  153 

Wofford  v.  Ashcroft,  925,  928 

Wohlforth  v.  Chamberlain,  240,  780 

Wolbert  v.  Lucas,  728 

Wolcott  v.  Johns,  793 

Wold  v.  Newguard,  914 

Wolf  v.  Fogarty,   66 

Wolfe  v.  Land  Co.,  462 

Wolford  v.  Jackson,  49,  200,  218 

Wolf  or  d  v.  Phelps,  130 

Wollenberg  v.  Rose,  785 

Wolter  v.  Dixon,  757' 

Wolverton  v.  Stevenson,  832 

Womack  v.  Coleman,  845 

Wood  v.  Bibbins,  425 

Wood  v.  Colvin,   134 

WTood  v.  Downes,  194 

Wood  v.  Forncrook,  393,  394 

Wood  v.  Griffith,  532 

Wood  v.  Johnson,  267 

Wood  v.  Levis,  125 

Wood  v.  Majoribanks,  850 

Wood  v.  Mason,  82,  187 

Wood  v.  Perry,  549 

Wood  v.  Thornton,  448 

Woodbury  v.  Luddy,  538 

Woodcock  V.  Bennett,  22,  524,  530 

Woodenbury  v.  iSpier,  871 

Woodfolk  v.  Blount,  710 

Woodhead  v.  Foulds,  805 

Wooding  v.  Grain,  881,  888 

Woodruff    v.    Bunce,    485,    696,T$2l, 

924,  926 

Woodruff  v.  Depue,  928 
Woods  v.   Bennett,   340 
Woods  v.  North,  253.  585,  889 
Woodward  v.  Allen,  397,  464 


Woodward  v.  Brown,  335 
Woodward  v.  McCollum,  172,  837 
Woodward  v.  Rogers,  511,  513 
Woodward  v.  Woodward,  178 
Woodward's  v.  App.,  41 
Woodworth  v.  Jones,  485 
Woolcot  v.  Peggie,  545 
Wooley  v.  Newcomibe,  295,  297,  298 
Woolums  v.  Hewitt,  311 
Workman  v.  Mifflin,  384 
Worley  v.  Frampton,   158 
Worley  v.  Hineman,  283,  288,  338 
Worley  v.  Northcott,  670,  671,  673 
Wormser  v.  Gehri,  807 
Wortin  v.  Howard,  117 
Worthington  v.  Curd,  206,   311,   926 
Worthington  v.  Hylyer,  54 
Worthington   v.    McRoberts,    85,    88, 

113 

Worthington  v.  Warrington,  30,  236 
Worthy  v.  Johnson,  161 
Wotton  v.  Hele,  380,  472 
Wi:agg  v.  'Meade,  349 
Wray  v.  Furniss,  921,  923 
Wren  v.  Cooksey,  850 
Wright  v.  Blackley,  670,  877 
Wright  v.  Bott,  27,  163 
Wright  v.  Boram,  366 
Wright  v.  Carvillo,  13,  7L8,  720 
Wright  v.  Delafield,  611,  671 
Wright  v.  Dickson,  639,  757 
Wright  V.  Edwards,  95 
Wright  v.  Glass,  810 
Wright  v.  Griffith,   189,   196 
Wright  v.  Mayer,  804 
Wright  v.  Nipple,  283,  446,  452 
Wright  v.  Phipps,  403,  404,  497 
Wright  v.  Sperry,  419 
Wright  v.  Suydam,  792 
Wright  v.  Swayne,  637 
Wright  v.  Wells,  62 
Wright  v.  Wright,  678 
Wright  v.  Young,  538 
Wuesthoff  v.  Seymour,  249 
Wyant  v.  Tuthffi,  83 
Wyatt  v.  Garlington,  681 
Wyatt  v.  Rambo,  117 
Wyche  v.  Green,  609 
Wyche  v.  Mafcklin,  742 
Wyman  v.  Ballard,  339 
Wyman  v.   Brigden,  389 
Wyman  v.  Campbell,  120 
Wyman  v.  Heald,  680 
Wynkoop  v.  Shoemaker,  847 
Wynn  v.  Harmon,  592,  596 
Wynne  v.  Morgan,  880 

Y. 

Yancey  v.  Lewis,  934 
Yancey  v.  Tatlock,  311 


xc 


TABLE  OF  CASES 


[REFERENCES   ABB    TO   PAGES] 


Yazel  v.  Palmer,  691 

Yeates  v.  Prior,  49,  256 

Yock  v.  Mann,  562 

Yoctim  v.  Foreman,  93,  94 

Yoder  v.  Swear  ingen,  766 

Yokum  v.  McBride,  243 

Yokum  v.  Thomas,  457 

York  v.  Allen,  497 

York  v.  Gregg,  743,  911 

Yost  v.  Devault,  538 

Youmans  v.  Edge rt on,  643 

Young  v.  Bumpass,  252 

Young  v.  Butler,  386,  486,  696,  924 

Young  v.  Clippenger,  367,  592 

Young  v.  Collier,  87»,  880 

Young  v.  Figg,  499 

Young  v.  Gower,  323 

Young  v.  Harris,  247,  676,  679,  684, 

739,  761 

Young  v.  Hervey,  860 
Young  v.  Hopkins,  259,  260 
Young  V,  Lilian!,   799 
Young  v.  Loftus,  507 
Young  v.  Lorain,  105,  600 
Young  v.  McClung,  82,  203,  696 
Young  v.  McCormiek,  923 


Young  v.  Paul,  37,  537,  541,  918 
Young  v.  Ratbbone,   823 
Young  v.  Sincombe,  670 
Young  v.  Stevens,   756 
Young  v.  Triplett,  414 
Young  v.  Wright,   38 
Youngman  v.  Linn,  724,  727,  72ft 
Younie  v.  Walrod,  203 
Y^aguirrc  v.  Garcia,  227 


Z. 

Zarate  v.  Villareal,  595 
Zarkowski  v.  Schroeder,  275 
Zelman  v.  Kaupherr,  847 
Zempel  v.  Hughes,   196 
Zent  v.  Picken,  272,  275 
Zerfing  v.  Seelig,  296,  702 
Zebley  v.  Sears,  539 
Zichen  v.  Smith,  214 
Zimmerman  v.  Lym-h,    370 
Zimmerman  v.  Owen.  785 
Zizich  v.  Investment  Co.,  873 
Zollman  v.  Moore,  955 
Zorn  v.  McParland,  651,  896 
Zuenker  v.  Kuehn,  940,  952 


MARKETABLE  TITLE  TO  REAL  ESTATE 


AND 


PURCHASERS  OF  DEFECTIVE  TITLES, 


BOOK   I. 

OF  REMEDIES  IN  AFFIRMANCE  OF  THE  CONTRACT  OF  SALE. 
OF  AFFIRMANCE  BY  PROCEEDINGS  AT  LAW. 

OF  PROCEEDINGS  AT  LAW  WHILE  THE  CONTRACT  IS  EXECUTORY. 

CHAPTER  I. 

INTRODUCTORY. 

Title  to  real  estate  has  been  defined  to  be  "  the  means  whereby 
the  owner  of  lands  hath  the  just  possession  of  his  property,"  x  but 
the  expression  is  commonly  used  in  a  figurative  sense  to  denote  the 
muniments  of  title  of  the  owner,  or  that  whole  body  of  documents 
or  facts  which  evidence  the  just  ownership  of  lands. 

Titles  are  either  (1)  good  ;  (2)  doubtful ;  or  (3)  absolutely  bad. 
A  good  title  consists  in  the  rightful  ownership  of  the  property  and 
in  the  rightful  possession  thereof,  together  with  the  appropriate 
legal  evidence  of  rightful  ownership.2  The  rightful  owner  of  an 
estate  may  be  in  the  rightful  possession  thereof,  but  unless  he  is 
supplied  with  documentary  evidence  of  title,  where  he  holds  by 
purchase,  or  can  prove  his  right  by  the  testimony  of  witnesses  or 
other  instruments  of  evidence,  where  he  holds  as  heir,  that  is,  by 
descent,  his  title  cannot  be  said  to  be  good.  Sir  William  Black- 
£tone  declares  that  a  perfect  title  consists  in  the  union  of  the  posses- 

1 1  Co.  Inst.345. 

2  In  Jones  v.  Gardner,  10  Johns.  (N.  Y.)  269,  it  was  said  that  title,  as  between 
vendor  and  purchaser,  means  the  legal  estate  in  fee,  free  and  clear  of  all  valid 
claims,  liens  or  incumbrances  whatever. 


MAKKETAHLE    TITLE    TO    KEAL    ESTATE. 

sion,  the  right  of  the  possession  and  the  right  of  property  in  one 
and  the  same  person.1  This  is  true  in  a  general  sense,  but  the  defi- 
nition scarcely  embraces  all  the  elements  of  a  good  title,  as  that 
term  is  employed  between  vendor  and  purchaser.  A  purchaser  in 
possession  who  has  paid  the  whole  purchase  money,  but  who  has 
not  received  a  conveyance,  may  be  said  to  have  the  possession,  the 
right  of  possession  and  the  right  of  property,  but  not  having 
received  a  deed,  the  indispensable  evidence  of  legal  title  in  such  a 
case,  his  title  cannot  be  said  to  be  good. 

In  our  definition  of  a  good  title  we  have  not  considered  as  an  ele- 
ment the  freedom  of  the  estate  from  liens,  charges  or  incumbrances 
of  any  kind.  Strictly  speaking,  an  incumbrance,  unless  created  by 
deed,  such  as  a  mortgage  or  deed  of  trust,  operates  no  change  in  the 
title,  though  it  is  common,  as  between  vendor  and  purchaser,  to 
speak  of  the  title  as  bad  when  the  estate  isincumbered.  And  even 
mortgages  and  deeds  of  trust,  though  there  is  in  each  case  a  nom- 
inal transfer  of  the  legal  title,  being  mere  securities  for  the  pay- 
ment of  debts,  are  very  generally  held  to  create  chattel  interests 
only  in  the  mortgagee  or  grantee,  the  legal  title  really  remaining  in 
the  mortgagor  or  grantor.2  But,  while  technically  the  title  to  an 
incumbered  estate  may  be  good,  in  the  sense  that  it  would  support 
an  action  of  ejectment,  a  purchaser,  without  notice  of  the  incum- 
brance, who  by  his  contract  is  entitled  to  demand  a  good  title,  can 
no  more  be  required  to  accept  the  title  if  the  estate  is  incumbered 
than  he  could  be  if  the  paramount  title  were  outstanding  in  a 
stranger. 

Doubtful  titles  are  those  which  turn  upon  some  question  of  law 
or  fact  which  the  court  considers  so  doubtful  that  the  purchaser  will 
not  be  compelled  to  accept  the  title  and  incur  the  risk  of  a  lawsuit 
by  adverse  claimants.  A  subsequent  chapter  of  this  work  is  devoted 
to  the  equitable  doctrine  of  doubtful  titles ;  it  is,  therefore,  deemed 
unnecessary  to  consider  them  further  here.8 

Absolutely  bad  titles  are  those  which  hick  not  necessarily  all,  but 
some  one  or  more  of  the  essentials  of  a  good  title,  and,  as  between 
vendor  and  purchaser,  may  he  such  though  the  paramount  title  be 

1  1  Bl.  Corn.  199. 

»  2  Warvclle  Vend.  649. 

•  Post,  ch.  81. 


INTRODUCTORY.  .  6 

really  in  the  vendor.  Thus,  if  the  vendor,  being  the  rightful 
owner,  is  out  of  possession,  and  an  adverse  claimant  is  wrongfully 
in  possession,  the  title  will  be  bad  so  far  as  the  purchaser  is  con- 
cerned, though  amply  sufficient  to  enable  the  vendor  to  recover  the 
premises  in  ejectment.1 

When  a  purchaser  of  real  property  discovers  that  the  title  is  bad 
he  must  choose  between  a  large  variety  of  measures  which  may  be 
taken  for  his  relief.  The  most  important  thing  to  be  considered,  in 
the  first  place,  is,  whether  the  contract  is  executory  or  executed.  A 
contract  for  the  sale  of  lands  is  said  to  be  executory  until  the  pur- 
chaser has  received  a  conveyance ;  after  a  conveyance  has  been 
made  the  contract  is  said  to  be  executed,  whether  the  purchase 
money  has  or  has  not  been  paid.  If  the  contract  remains  execu- 
tory, he  is  next  to  determine  whether  he  will  adopt  a  remedy  which 
affirms  the  agreement  or  one  which  rescinds  or  disaffirms  the  con- 
tract. If  he  elects  to  affirm,  there  are  several  courses  open  to  him. 
At  law  he  may  maintain  an  action  to  recover  damages  for  a  breach 
of  the  vendor's  express  or  implied  contract  to  convey  a  good  title;2 
or.  he  may  buy  in  the  rights  of  one  having  the  better  title,  or  an 
incimibrance  on  the  premises,  and  set  off  the  amount  so  expended 
against  the  vendor's  action  for  the  purchase  money,3  or  for  damages 
for  breach  of  the  contract.4  Or,  if  the  facts  as  to  the  title  were 
falsely  and  fraudulently  represented  to  him,  he  may  keep  the  estate, 
agree  with  the  rightful  owner,  or  take  the  risk  of  eviction,  and 
maintain  against  the  vendor  the  common-law  action  of  trespass  on 
the  case  for  deceit,  or  the  equivalent  of  that  action  under  modern 
codes  of  practice.5  And  lastly,  in  the  way  of  affirmance,  instead 
of  adopting  any  one  of  these  courses,  he  may  file  his  bill  in  equity, 
or  bring  his  equitable  action,  praying  that  he  be  permitted  to  apply 
the  unpaid  purchase  money  to 'the  removal  of  objections  to  the 
title,  or  that  he  be  allowed  compensation  for  defects,  and  that  the 
vendor  be  compelled  to  specifically  perform  the  contract,  and  that,  if 
specific  performance  be  impossible,  damages  in  lieu  thereof  be 

1  Post,  §290,  ch.  3L 
*  Ch.  2. 

3  Ch.  24. 

4  Ch.  2. 

8  Ch.  11. 


4  MAKKKTADLE    TITLE    TO    REAL    ESTATE. 

awarded  the  plaintiffs.1  In  all  these  cases  the  purchaser  elects  to 
abide  by  the  contract  and  keep  the  estate. 

But  the  contract  being  still  executory,  the  purchaser,  on  dis- 
covery that  the  title  is  bad,  may  determine  upon  rescission.  To 
rescind  a  contract  is  to  annul  or  abrogate  it,  the  consideration  which 
passed  from  either  party  being  returned,  and  both  parties  being 
placed  in  stain  quv,  that  is,  as  nearly  as  possible  in  the  same  condi- 
tion in  which  they  were  before  they  entered  into  the  contract. 
Rescission  of  an  executory  contract  for  the  sale  of  lands  may  be 
accomplished  in  three  ways :  First,  by  the  act  of  the  parties  them- 
selves.2 The  vendor  may  agree  to  take  back  the  estate  and  to 
}x?rmit  the  purchaser  to  keep  the  purchase  money  if  it  has  not  been 
paid.  This  is  frequently  done.  Secondly,  by  proceedings  at  law. 
Of  course  a  court  of  law  proper  is  not  competent  to  pronounce  a 
decree  of  rescission  directing  either  party  to  restore  what  he  has 
received  by  virtue  of  the  contract.  But  the  purchaser  may  simply 
abandon  the  possession  of  the  premises  and  set  up  the  want  of  title 
as  a  defense  when  sued  for  the  purchase  money  ;s  or,  if  he  has  paid 
a  part  or  the  whole  of  the  purchase  money,  he  may  sue  in  a  court  of 
law  to  recover  it  back,  having  in  the  meanwhile  abandoned  the 
premises  or  restored  them  to  the  vendor.  In  this  way  rescission  is 
virtually  accomplished  at  law.  Thirdly,  the  purchaser  may  tile  his 
bill  in  equity  on  failure  of  the  title,  praying  that  the  contract  be  in 
terms  rescinded ;  or  to  a  bill  tiled  by  the  vendor  for  specific  per- 
formance, he  may  set  up  as  a  defense  the  plaintiffs  want  of  title, 
provided  he  has  restored,  or  offers  to  restore,  the  premises  to  the 
vendor.4  The  rescission  of  executory  contracts  is  peculiarly  a  ground 
•of  equitable  jurisdiction.  Courts  of  equity  possess  all  the  machinery 
for  ascertaining  what  is  necessary  to  put  the  parties  in  statn 
quo,  and  to  compel  either  party  to  do  whatever  is  required  to  that 
end. 

So  much  for  the  remedies  of  the  purchaser,  either  by  way  of 
affirmance  or  rescission,  while  the  contract  is  executory.  They  are 
all  r<>-exirttent,  and  his  choice  of  the  one  or  the  other  is  to  be  con- 

1  Chs.  17.  18  and  19. 

»  Cli.  28. 

»  Ch.  24. 

•  Lli.  30.     New-berry  v.  Kuflin,   102  Vn.  73;   4.»   $.   K.   73,  citing  the  text. 


INTRODUCTORY.  5 

frolled  by  the  particular  circumstances  of  Ins  case.  He  may  con- 
ceive it  to  be  an  advantage  to  him  to  keep  the  estate  with  damages 
or  compensation  for  defects,  or  he  may  deem  it  best  to  restore  the 
estate  and  have  back  his  purchase  money.  But  while  the  remedies 
by  way  of  action  to  recover  back  the  purchase  money  and  action  to 
recover  damages  for  fraudulently  imposing  a  bad  title  on  the  plain- 
tiff are  concurrent,  they  are  not  co-extensive  in  respect  to  the  relief 
that  is  to  be  afforded ;  and  this  should  be  considered  by  the  pur- 
chaser in  choosing  his  remedy.  In  the  former  action  he  recovers  no 
more  than  the  consideration  money  and  interest ;  and  the  same  may 
be  said  of  an  action  to  recover  damages  for  a  breach  of  the  contract 
to  convey  a  good  title,  in  which  there  is  no  averment  of  fraud  on 
the  part  of  the  defendant.1  But  where  the  action  for  damages  is 
expressly  grounded  upon  the  defendant's  fraudulent  representations 
as  to  the  title  or  concealment  of  defects,  and  the  plaintiff  establishes 
his  case,  he  will  be  entitled  to  recover  damages  for  the  loss  of  his 
bargain,  that  is,  the  value  of  the  estate  at  the  time  when  the  con- 
tract should  have  been  completed  by  the  conveyance  of  a  good 
title.2  Therefore,  in  a  case  in  which  the  value  of  the  estate  has 
materially  increased  between  the  inception  of  the  contract  and  the 
time  when  it  should  have  been  completed,  and  the  purchaser  can 
show  that  the  defendant  was  guilty  of  fraud  with  respect  to  the 
title,  he  should  take  care  so  to  frame  his  declaration  or  complaint 
that  his  action  shall  be  the  equivalent  of  the  action  of  deceit  at  com- 
mon law,  so  that  he  may  recover  as  damages  the  increased  value  of 
the  estate. 

The  defenses  or  answers  to  the  purchaser's  application  for  relief 
while  the  contract  is  executory,  most  frequently  met  with  in  the 
reports,  are  that  the  purchaser  in  the  first  instance  agreed  to  take 
the  title  such  as  it  was,  or  that  he  had  since,  by  his  conduct,  waived 
all  objections  to  the  title  ;3  that  the  vendor  has  the  right  to  perfect 
the  title,4  or  to  require  the  purchaser  to  take  the  title,  with  compen- 
sation for  defects  ; 5  that  the  purchaser  has  not  placed  the  vendor 

1  Ch.  10,  §  91. 

2  Ch.  10,  §  97. 
3Ch.  8. 

4  Ch.  32. 

5  Ch.  33. 


O  MARKETABLE    TITLE    TO   REAL    ESTATE. 

in  statu  quo,  and  that  the  positions  of  the  parties  with  respect  to 
the  subject-matter  of  the  contract  have  so  materially  changed  that 
it  will  he  impossible  to  place  them  in  statu  quo  y1  and,  where  the 
gravamen  of  the  action  or  defense  is  the  vendor's  fraud  in  conceal- 
ing the  state  of  the  title,  that  the  defects  complained  of  all  appear 
from  the  public  records,  and  that  the  vendor  is  not  bound  to  call 
the  attention  of  the  purchaser  to  defects  which  are  thus  open  to 
his  inspection.2 

We  have  now  presented  a  brief  outline  of  the  courses  open  to  the 
purchaser,  and  the  attitude  of  the  vendor  on  failure  of  the  title, 
where  the  contract  is  executory.  It  remains  to  indicate,  in  a  like 
manner,  their  respective  rights  and  remedies  where  the  contract  has 
been  executed  by  the  delivery  and  acceptance  of  a  conveyance. 
First,  it  is  to  be  observed  that  except  in  cases  in  which  the  pur- 
chaser has  been  fraudulently  induced  to  enter  into  the  contract  or  to 
accept  a  conveyance,  or  unless  there  has  been  some  such  mistake  as 
will  entitle  him  to  relief,  his  remedies  are  all  necessarily  in  affirm- 
ance of  the  contract,  for,  as  a  general  rule,  there  can  be  no  such 
thing  as  the  rescission  of  an  executed  contract  for  the  sale  of  lands. 
The  reason  is  that  the  parties  can  seldom,  if  ever,  be  placed  in  statu 
quo.  We  shall  see  hereafter,  however,  that  there  is  a  tendency  in 
some  of  the  States  to  modify  this  rule.8  And  not  only  are  the 
remedies  of  the  purchaser,  in  the  absence  of  fraud  or  mistake,  nec- 
essarily in  affirmance  of  the  contract  after  a  conveyance  has  been 
accepted,  but  the  existence  of  those  remedies  themselves  depend 
largely  upon  his  own  foresight  and  prudence.  The  law  protects 
the  purchaser,  at  least  where  the  vendor  sells  in  his  own  right,  by 
its  implication  of  a  contract  that  a  good  title  is  to  be  conveyed,  up 
to  the  time  when  the  parties  are  ready  to  complete  the  contract  by 
the  payment  of  the  purchase  money,  the  delivery  of  possession,  and 
the  execution  and  acceptance  of  a  conveyance.  But  any  implication 
in  his  favor  ceases  at  this  point,  and  to  protect  himself  against  loss 
in  the  future,  in  the  event  that  the  title  shall  prove  bad,  he  miiht 
Me  that  covenants  for  title  by  the  vendor,  adequate  for  that  pur- 
pose, are  inserted  in  the  conveyance.  The  maxim  caveat  emptor 

1  Chi.  86  and  80. 

•  Ch.  11.  $  104. 
»  Ch.  26. 


INTRODUCTORY.  7 

applies.1  This  is  the  rule  which  prevails  in  most  of  the  American 
States,  though  in  some  of  them  it  is  qualified  to  a  certain  extent,  as 
will  be  hereafter  noted.  It  may  be  doubted  whether  a  rigid  applica- 
tion of  this  rule  will  subserve  the  ends  of  justice  in  all  cases, 
particularly  those  in  which  the  purchase  money  remains  unpaid 
when  the  purchaser  is  evicted,  or  when  it  is  discovered  that  the  title 
is  bad.  The  maxim  or  rule  caveat  emptor  has  no  place  in  the  civil 
law.  By  that  law  the  purchaser,  whether  lie  has  or  has  not  received 
a  conveyance,  is  always  to  be  reimbursed  if  he  loses  the  estate 
through  a  defect  in  the  title,  unless,  indeed,  it  was  expressly  under- 
stood that  the  title  was  bad,  and  the  purchaser  bought  only  such 
right  or  interest  as  the  vendor  might  have.  At  common  law,  of 
course,  no  hardship  results  in  refusing  relief  to  a  purchaser  who, 
with  knowledge  that  the  title  is  bad,  accepts  a  conveyance  without 
covenants  for  title.  He  simply  gets  what  he  buys,  and  he  has  no 
ground  for  complaint  if  he  loses  the  estate.  But  hardship  does 
often  result  in  cases  in  which  covenants  for  title  were  unintentionally 
omitted,  through  the  ignorance  and  inexperience  of  the  parties  and 
their  advisers,  a  circumstance  likely  to  occur  in  rural  districts,  where 
the  village  blacksmith  frequently  acts  in  the  capacity  of  justice  of 
the  peace  and  legal  adviser  for  the  community.  Assuming,  however, 
that  the  conveyance  contains  the  usual  covenants  for  title,  the 
remedy  of  the  purchaser  is  by  action  for  breach  of  covenant  if  he  be 
evicted,  or  if  the  title  prove  to  be  bad  or  the  estate  incumbered,  in 
which  action  he  will  recover  real  or  nominal  damages,  according  to 
whether  he  has  suffered  real  or  nominal  injury  from  the  breach.  If, 
however,  he  was  fraudulently  induced  to  accept  a  conveyance  with 
covenants  for  title,  he  is  not  obliged  to  bring  his  action  for  breach  of 
covenant,  but  may  have  his  action  on  the  case  for  deceit,  just  as  if 
the  contract  were  executory,  the  better  opinion  being  that  the  ven- 
dor's fraud  is  not  merged  in  his  covenants  for  title.2  And  instead 
of  taking  the  initiative,  and  suing  for  breach  of  covenant,  the  pur- 
chaser may,  where  the  purchase  money  is  still  unpaid,  detain  the 
same  in  his  hands,  and,  when  sued  by  the  vendor,  set  up  the  breach 
of  covenant  as  a  defense  by  way  of  recoupment  or  counterclaim,  pro- 
vided he  has  then  a  present  right  to  recover  substantial,  and  not  merely 

1  Ch.  27. 

2  Ch.  27. 


8  MARKETABLE    TITLE    TO    REAL    ESTATE. 

nominal  damages,  for  breach  of  the  plaintiffs  covenants.1  These, 
then,  are  the  remedies  of  the  purchaser  at  law  by  way  of  affirmance 
of  the  executed  contract.  In  equity  he  may  tile  his  bill,  praying 
that  the  grantor  be  compelled  to  perform  specifically  certain  of  the 
covenants  for  title,  for  example,  the  covenant  against  incumbrances, 
by  removing  an  incumbrance  from  the  estate ;  and  the  covenant  for 
further  assurance,  by  the  execution  of  such  further  assurance  as  may 
be  reasonably  required.3  And  where,  through  error  or  mistake,  the 
conveyance  does  not  contain  such  covenants  for  title  as  the  pur- 
chaser may  demand,  he  may  file  his  bill  praying  that  the  conveyance 
be  reformed,  so  as  to  express  the  true  intention  of  the  parties.8 

We  have  already  observed  that  an  executed  contract  for  the  sale 
of  lands  cannot,  as  a  general  rule,  in  the  absence  of  fraud  or  mis- 
take, be  rescinded,  either  at  law  or  in  equity.  There  is,  however,  a 
certain  kind  of  relief  contended  for  in  some  cases  at  law,  which,  if 
conceded,  amounts  to  a  virtual  rescission  of  the  contract.  The  gen- 
eral rule  is  that  in  an  action  for  breach  of  the  covenant  of  seisin  the 
plaintiff  can  recover  nominal  damages  only,  unless  he  has  been 
actually  or  constructively  evicted  from  the  premises.  This  rule, 
however,  has  been  modified  in  some  of  the  States,  and  the  pur- 
chaser permitted  to  recover  the  whole  consideration  money,  pro- 
vided he  has  reconveyed  the  estate  to  the  grantor.  This  of  itself 
practically  amounts  to  a  rescission  of  the  contract.  And  if  he  may 
thus  recover  the  consideration  money  as  damages  in  an  action  for 
breach  of  the  covenant  of  seisin,  no  reason  is  perceived  why  he 
may  not  avail  himself  of  that  breach  as  a  defense  when  sued  for 
the  purchase  money,  provided,  of  course,  that  he  reconveys  or 
offers  to  reconvey  the  premises  to  the  plaintiff.  The  effect  would 
l>e  merely  to  avoid  circuity  of  action.4  But  the  contrary  rule, 
namely,  that  a  breach  of  the  covenant  of  seisin  is  no  defense  to  an 
action  for  the  purchase  money  unless  the  defendant  has  been  actu- 
ally or  constructively  evicted  from  the  estate  is  undoubtedly  estab- 
lished in  most  of  the  American  States.5 

« Ch.  16, 
•  Cb.  81. 
»Ch.  22. 
«  Ch.  26. 
»  Ch.  16. 


IXTIIOTHJCTOEY.  9 

As  to  the  rescission  of  an  executed  contract  on  the  ground  of 
fraud  or  mistake,  it  is  only  necessary  to  say  that  this  is  one  of  the 
principal  heads  of  equitable  jurisdiction.1  The  vendor's  fraud  is 
not  merged  in  his  covenants  for  title.  Equitable  relief  is  also  given 
the  purchaser  by  way  of  injunction  against  proceedings  to  collect 
the  purchase  money  where  the  grantor  is  insolvent  or  a  non- 
resident, in  which  case  there  is  no  adequate  remedy  upon  the  cove- 
nants for  title.2  And  in  one  or  two  of  the  States  this  relief  is 
afforded  on  a  clear  failure  of  the  title  without  even  a  suggestion  of 
non-residence  or  insolvency  of  the  grantor.3  This,  of  course,  is 
equivalent  to  a  rescission  of  the  contract  if  the  injunction  is  made 
perpetual. 

The  defenses  to  the  purchaser's  measures  for  relief  on  failure  of 
the  title,  where  the  contract  has  been  executed,  most  frequently  met 
with  in  the  reports,  are  that  the  purchaser  accepted  a  conveyance 
without  covenants  for  title,  or  that  the  covenants  have  not  been 
broken,  or,  at  least,  that  there  has  been  no  such  breach  as  will  entitle 
the  purchaser  to  substantial  damages ;  or  that  the  right  to  recover 
for  a  breach  of  covenants  executed  by  the  defendant  as  a  remote 
grantor  did  not  pass  to  the  plaintiff,  being  a  chose  in  action,  and 
incapable  of  assignment  at  common  law ;  or  that  the  paramount 
title  was  acquired  by  the  defendant  after  the  conveyance  was  exe- 
cuted, and  had,  by  operation  of  law,  inured  to  the  benefit  of  the  plain- 
tiff and  taken  away  his  right  of  action ;  or,  in  a  case  of  alleged  fraud, 
that  the  plaintiff  by  his  conduct  had  waived  all  ground  of  complaint, 
or  that  there  was  in  fact  no  fraud,  the  true  state  of  the  title  being 
apparent  from  the  public  records,  which  the  purchaser  will  be  re- 
sumed to  have  examined. 

From  the  foregoing  outline  of  the  remedies  of  the  purchase! 
and  the  defenses  of  the  vendor  on  failure  of  the  title,  the  utility 
and  convenience  of  the  plan  or  analysis  of  this  work,  pnd  the  ordei 
in  which  those  remedies  and  defenses  are  treated,  will  be  perceived. 
The  term  "  marketable  "  or  "  defective  "  title,  as  between  vendo» 
and  purchaser,  is  relative  as  well  as  substantive,  and  has  reference 
alike  to  the  remedies  of  the  parties,  the  incidents  of  those  remedies 

1  Ch.  35. 
1  Ch.  34. 
*Ch.34,  §337 
2 


10  MARKETADLE    TITLE    TO    IJK.vl.    ESTATE. 

and  the  essential  elements  of  a  good  title.  Accordingly,  it  has  been 
deemed  proper  and  convenient  to  consider,  under  that  head,  not  only 
the  equitable  doctrine  of  marketable  title  proper,  but  the  law  of 
covenants  for  title,  the  nature  and  incidents  of  each  of  those  cove- 
nants, the  extent  to  which  they  run  with  the  land,  the  doctrine  of 
estoppel,  or  after-acquired  title,  and  the  specific  performance  of 
covenants  for  title,  as  well  as  the  specific  performance  of  executory 
contracts  for  the  sale  of  lands.  The  subject  of  the  work  naturally 
divides  itself  into  the  two  principal  heads  of  remedies  in  affirmance, 
and  remedies  in  rescission  of  the  contract,  together  with  their  inci- 
dents. One  advantage  anticipated  from  this  classification  is  that  it 
will  serve  to  impress  upon  the  mind  of  the  student  the  cardinal 
principle  that  the  purchaser  cannot,  because  the  title  is  bad  or  doubt- 
ful, escape  the  obligation  his  contract,  and  at  the  same  time  retain 
its  benefits.  Restitution  of  the  consideration  on  one  side,  and  of 
the  subject-matter  of  the  contract  on  the  other,  is  an  invariable  con- 
dition precedent  to  rescission. 


CHAPTER  II. 

ACTION  FOR  BREACH  OF  CONTRACT. 

GENERAL  PRINCIPLES.     FORM  OF  ACTION.     §  1. 
DOUBTFUL  TITLE  IN  ACTION  FOR  DAMAGES.     §  2. 
PURCHASER  IN  POSSESSION  MAY  SUE.     §  3. 

DEFENSES  TO  THE   VENDOR'S  ACTION  FOR  BREACH   OF   CON- 
TRACT.    §4. 

§  1.  GENERAL  PRINCIPLES.  FORM  OF  ACTION.  Usually  a 
contract  for  the  sale  of  real  -estate  allows  time  for  the  exami- 
nation of  the  title,  and  fixes  a  day  in  the  future  for  the  pay- 
ment of  the  purchase  money  and  the  execution  of  a  conveyance.1 
If,  when  that  day  arrives,  the  purchaser  shall  have  performed,  or 
offered  to  perform,  everything  on  his  part  necessary  to  entitle  him 
to  a  conveyance,  and  the  vendor  be  unable  to  convey  such  a  title  as 
the  purchaser  may  demand,  the  contract  is  broken,  and  the  pur- 
chaser is  as  much  entitled  to  an  action  for  damages  as  if  the  vendor, 
being  able  to  convey  a  good  title,  had  willfully  refused  to  perform 
the  contract.2  If  the  contract  was  not  under  seal  the  proper  action 
for  the  breach  will  be  trespass  on  the  case  in  assumpsit ; 3  if  the  con- 
tract was  under  seal,  as  in  the  case  of  a  title  bond,  the  proper  action 
will  be  covenant.' 

In  most  cases  the  purchaser  may  elect  between  his  right  to  recover 

1  In  Bennet  v.  Fuller,  29  La.  Ann.  663,  a  distinction  was  drawn  between  an 
actual  sale  and  a  contract  "  to  sell  on  a  future  day;"  but  the  court  held  that 
if,  in  the  latter  case,  at  the  appointed  day  the  vendor  was  unprepared  to  sell 
and  convey  a  clear  title,  he  would  be  liable  in  damages. 

2Sugd.  Vend.  (8th  Am.  ed.)  357  (236).  Jenkins  v.  Hamilton,  153  Ky.  163; 
154  S.  W.  937.  Grant  v.  McArtlmr,  153  Ky.  356;  155  S.  W.  732. 

8  Bac.  Abr.  Assumpsit  (C). 

4  3  Bl.  Com.  155;  Haynes  v.  Lucas,  50  111.  436.  But  he  may  recover  back 
the  purchase  money  under  the  common  counts,  though  the  contract  was  under 
seal.  Greville  v.  Da  Costa,  Peake  Add.  Cas.  113.  In  a  suit  on  a  title  bond 
conditioned  to  make  title  as  soon  as  procured  by  the  vendor,  the  complaint 
will  be  fatally  defective  if  it  do  not  allege  that  the  vendor  had  obtained  the 
title.  Stone  v.  Young,  4  Kans.  11.  In  such  a  suit  an  averment  that  the 
defendant  failed  and  refused,  and  •still  fails  and  refuses  to  perform  the  stipu- 
lations and  conditions  of  the  bond,  is  sufficient  under  the  Code.  Holman  v. 
Criswell,  15  Tex.  395,  the  court  saying  that  the  common-law  rule,  contra,  in 
1  Chitty  PI.  363  does  not  apply  to  the  system  of  Code  pleading  in  Texas. 

[11] 


12  MAKKETABLE    TITLE    TO    KEAI,    ESTATE. 

damages  for  breach  of  the  contract  in  failing  to  convey  a  good  title 
and  his  right  to  rescind  the  contract  and  recover  back  the  purchase 
money,  or  such  part  thereof  as  may  have  been  paid,1  and  where  the 
contract  is  not  under  seal,  the  form  of  action  is  the  same  in  either 
case  —  trespass  on  the  case  in  assuinpsit.  The  two  causes  of  action, 
however,  must  not  be  confounded,  as  seems  sometimes  to  have  been 
done.  The  action  of  assuinpsit  is  adapted  to  the  recovery  of 
moneys  due  by  implied  contract,  and  also  to  the  recovery  of  dam- 
ages for  the  breach  of  a  contract,  but  the  plaintiff  must  so  frame  his 
declaration  as  to  entitle  him  to  the  particular  relief  desired.  Thus, 
if  he  desires  merely  to  recover  back  the  purchase  money,  ignoring  the 
contract  and  treating  the  purchase  money  as  so  much  money  paid 
out  to  the  use  and  benefit  of  the  vendor,  he  will  employ  the  com- 
mon money  counts,  while,  if  he  intends  to  affirm  the  contract  ho 
will  set  out  the  substance  of  it  in  his  declaration,  and  claim  dam- 
ages for  the  breach.14  lie  may,  however,  if  he  chooses,  employ  the 
money  counts  and  add  a  count  upon  the  contract,  so  that  if  his 
proof  fails  him  upon  the  one  count  it  may  entitle  him  to  recover 
upon  the  other.2  Thus  proof  that  the  title  is  merely  doubtful  and 
not  absolutely  bad  will  entitle  the  purchaser  to  have  back  his  pur- 
chase money,  but  would  give  him  no  right  to  damages,3  and,  accord- 
ing to  the  English  decisions,  he  could  not  under  the  common  counts 
recover  back  the  costs  of  examining  the  title.4  The  rule  that  the 

1  Jannlewyez  v.  Quagliano,  88  Conn.  60;  8  All.  9  8fl7. 

'•Chitty  Cont.  (10th  Am.  ed.)  339;  1  Sugd.  Vend.  (8th  Am.  cd.)  537  (358). 

'See  Camfield  v.  Gilbert,  4  Esp.  221.  In  Doherty  v.  Dolan,  65  Me.  87;  20 
Am.  Rep.  667,  the  purchaser,  after  paying  $1,000  of  the  purchase  money, 
brought  an  action  against  the  vendor  for  damages,  alleging  inability  to  con- 
vey  a  good  title.  In  Maine  the  meamre  of  damages  in  such  a  ease  in  the  value 
of  the  land  at  the  time  the  conveyance  should  have  been  made,  and  where  part 
of  the  purchase  money  has  been  paid,  the  plaintiff  is  entitled  to  recover  thin 
value.  ICKH  what  remains  due  on  the  contract  price.  The  necessary  eonse- 
qucnee  of  this  rule  is  that  where  part  payment  has  been  made  and  the  value 
of  the  land  has  decreased,  and  is  less  at  the  time  fixed  for  performance  than 
Ihe  contract  price,  the  plaintiff  will  not  be  entitled  to  recover  a.s  damages  as 
much  as  he  has  paid  on  the  land.  To  obviate  this  difficulty,  tin-  plaintiff  in 
this  case  was  permit  ted  to  amend  his  declaration  by  adding  a  eount  for  money 
had  and  received,  under  which  he  might  recover  all  that  he  had  paid  on  the 
contract. 

•  IngalU  v.   Hahn,  47   Hun    (N.   Y.).  104. 

«1  Sugd.  Vend.  («th  Am.  ed.)  547  (3f»2);  Chit.  Cont.  (10th  Am.  ed.)  339; 
Chit.  PI.  (2d  ed.)  196,  n. 


ACTION    FOR    BREACH    OF    CONTRACT.  13 

extent  of  the  purchaser's  recovery  is  to  be  governed  by  the  nature 
of  the  relief  sought,  that  is,  whether  in  affirmance  or  disaffirmance 
of  the  contract,  prevails,  it  is  apprehended,  as  well  under  the  Code 
practice  as  at  common  law.  The  petition  or  complaint  should  be 
so  drawn  as  to  indicate  whether  the  plaintiff  seeks  merely  to  recover 
back  the  purchase  money  or  whether  lie  claims  damages  for  breach 
of  the  contract. 

The  remedy  by  action  for  breach  of  contract  is  concurrent  with 
the  action  of  deceit  when  fraud  exists,1  but  is  seldom  resorted  to  in 
such  a  case,  the  plaintiff  being  entitled  to  a  greater  measure  of  dam- 
ages in  the  action  of  deceit.  He  may  also  elect  between  these 
remedies  and  his  remedy  in  equity  by  suit  for  rescission,2  or  for 
specific  performance,  or  damages  in  lieu  thereof.8  But  the  action 
for  damages  is  broader  than  the  latter  remedy,  for  the  purchaser's 
bill  is  frequently  dismissed  without  prejudice  to  his  remedy  at  law 
on  the  contract.4  Where  the  purchaser  may  elect  between  several 
remedies  he  cannot,  of  course,  be  required  to  adopt  one  in  prefer- 
ence to  another.5  Nor,  if  the  purchaser  has  a  right  to  recover 
damages  for  breach  of  the  contract,  can  the  vendor  insist  upon  tak- 
ing back  the  property  and  returning  the  consideration.  It  is  with 
the  purchaser  to  say  whether  he  will  affirm  or  rescind  the  contract.6 

1  2  Warvelle  Vend.  955;  Lynch  v.  Merc.  Trust  Co..  18  Fed.  Rep.  486. 

2  Reese  v.  Kirk,-  29  Ala.  406;    Alvarez  v.  Brannan,  7  Gal.  503;    68  Am.  Dec. 
274;  Wright  v.  Carillo,  22  Cal.  604. 

3Haynes  v.  Farley,  4  Port.   (Ala.)    528;  Greene  v.  Allen,  32  Ala.  215. 
4Sugd.  Vend.   (8th  Am.  ed.)    357. 

5  Ban-on  v.  Easton,  3  Iowa,  76;   Katz  v.  Henig,  66   N.  Y.   Supp.  530;   32 
Misc.   672. 

6  Lynch  v.  Merc.  Trust  Co.,  18  Fed.  Rep.  486 ;  Krumm  v.  Beach,  96  N.  Y. 
406,  the  court  saying:    "The  contention  of  the  vendors  is  that  the  defrauded 
vendee  has  but  one  remedy,  and  that  consisted  of  a  rescission  of  the  contract  and 
the  recovery  back  of  the  consideration  paid,  after  an  offer  to  reconvey  and  a 
tender  of  what  had  been  received.    Doubtless  this  remedy  existed,  but  the  vendee 
was  not  compelled  to  adopt  it.     He  had  a  right,  instead  of  rescinding  the  con- 
tract, to  stand  upon  it  and  require  of  the  vendor  its  complete  performance,  or 
such  damages  as  would  be  the  equivalent  of  that  complete  performance.     The 
vendee,  acting  honestly  on  his  own  part,  was  entitled  to  the  full  fruit  of  his  bar- 
gain, and  could  not  be  deprived  of  it  without  his  consent  by  the  fraud  of  the 
vendor.     That  such  an  action,  proceeding  upon  an  affirmance  of  the  contract  as 
actually  made,  founded  upon  actual  fraud,  and  asking  damages  in  the  room  of 
an  impossible  specific  performance,  can  be  maintained  at  law,  has  been  sufficiently 
adjudged.     Wardell  v.  Fosdick,  13  Johns.  (K  Y.)  325;  7  Am.  Dec.  383;   Culver 


14  MARKETABLE    TITLE    TO   REAL   ESTATE. 

But,  having  recovered  a  judgment  for  damages  in  an  action  for 
breach  of  the  contract  to  convey,  he  cannot  afterward  bring  a  sec- 
ond action  or  resort  to  any  other  means  to  enforce  the  contract.1 
If  lie  elects  to  rescind  he  cannot  afterwards  affirm  the  contract  and 
vice  versa*  There  can  be  but  one  satisfaction  of  the  injury. 

Under  the  English  common-law  system  of  pleading  the  pur- 
chaser's expenses  incurred  in  examining  the  title  could  not  be  recov- 
ered by  him  if  lie  disaffirmed  the  contract  and  brought  his  action  to 
recover  back  his  deposit  as  such ;  it  was  necessary  for  him  to  insert 
a  count  in  the  declaration  claiming  damages  for  breach  of  the  con- 
tract.3 The  reason  for  this  rule  was  that  moneys  so  paid  out  could 
not  be  regarded  as  paid  out  to  the  vendor's  use,  but  were  expended 
for  the  purchaser's  own  satisfaction.  Perhaps  the  same  rule  would 
be  applied  in  America  in  a  case  in  which  the  pleadings  demand  only 
a  return  of  the  purchase  money  and  contain  no  demand  for 
damages.4 

If  the  purchaser  accept  a  conveyance  of  the  premises,  he  cannot 

T.  Avery,  7  Wend.  (N.  T.)  886;  82  Am.  Dec.  686;  Whitney  v.  Allaire,  1  Comst. 
(N.  Y.)  305;  Clark  v.  Baird,  9  N.  Y.  197;  Graves  v.  Spier,  58  Barb.  (X.  Y.)  385. 
And  that  is  so  whether  the  representations  relate  to  the  title  or  to  matters  col- 
lateral to  the  land.  The  measure  of  damages  in  such  a  case  is  full  indemnity  to 
the  injured  party;  the  entire  amount  of  his  loss  occasioned  by  the  fraud." 

1 1  Sudg.  Vend.  (8th  Am.  ed.)  857  (236);  Onne  v.  Boughton,  10  Bing.  587;  25 
E.  C.  L.  254;  Hopkins  v.  Lee,  6  Wheat.  (U.  8.)  109;  Buckmaster  v.  Grundy,  3 
Gil.  a».)  626,  638;  Hill  v.  Hobart,  16  Me.  169. 

'Schiffer  v.  Dietz,  83  N.  Y.  800,  308,  citing  Mason  v.  Bovet,  1  Den.  (N.  Y.) 
69;  43  Am.  Dec.  651  ;  Cobb  v.  Hatfield,  46  N.  Y.  588;  Lawrence  v.  Daie.  3 
Johns  Ch.  (N.  Y.)  23.  White  v.  Harvey,  175  Iowa  213;  157  N.  W.  152. 
Remedies  in  aftirmanee  and  remedies  in  disafh'rniance  or  iv-  i--i'>n  of  the 
contract  are  non-concurrent  and  inconsistent  with  each  other.  Bowen  v. 
Mandeville,  95  N.  Y.  240. 

•Sugd.  Vend.  (8th  Am.  ed.)  547  (362) ;  1  Chit  Oont  (10th  Am.  ed.)  339; 
Camfteld  v.  Gill»ert,  4  Esp.  221. 

*  In  the  State  of  New  York  the  cases  do  not  show  that  this  distinction  lun 
l>cen  observed.  An  action  there  for  damages  in  failing  to  perform  the  con- 
tract to  convey  a  good  title  seems  to  be  regarded  a«  in  effect  the  same  a«  an 
action  to  recover  back  the  purchase  money  eo  nomine,  probably  U-i  auso  in  sueh 
an  action  the  damages  are,  as  a  general  rule,  limited  to  the  purchaxc  money 
paid,  interest,  costs  and  expciim-a.  There  can  be  no  question,  however,  a*  to 
the  right  to  recover  the  expenses  of  examining  the  title  as  a  part  of  the  dam- 
age*. Higgins  v.  Eagleton,  34  N.  Y.  Supp.  225.  See  post,  g  93.  The  expenses 
of  examining  the  title  may  be  recovered  in  an  action  to  recover  li.uk  the 
deposit.  Kffenheim  v.  Von  Hafen,  23  X.  Y.  Supp.  348  (N.  Y.  City  Court). 


ACTION    FOTC    BTCF.ACTr    OF    CONTRACT.  15 

afterwards  maintain  an  action  to  recover  damages  from  the  vendor 
for  breach  of  his  contract  to  convey  a  good  title.  His  remedy  is 
upon  the  covenants  of  his  deed  if  any.  If  there  are  no  covenants, 
lie  is,  in  the  absence  of  fraud  or  mistake,. without  remedy.1 

If  the  title  fail,  the  purchaser  by  bringing  an  action  for  damages 
affirms  the  contract,  and  will  not  be  entitled  to  recover  unless  he 
shows  that  he  has  performed  his  part  of  the  contract  by  tender  or 
payment  of  the  purchase  money  in  full.  If  the  purchase  money 
be  not  paid  in  full,  he  should  bring  an  action  for  money  had  and 
received  to  his  use  (trespass  on  the  case  in  assumpsit),  which  dis- 
affirms the  agreement.2  This  distinction  appears  not  to  be  observed 
in  those  States  in  which  the  common-law  system  of  pleading  has 
been  abolished.  Thus,  in  'New  York  it  has  been  held  that  if  the 
vendor  be  unable  to  make  title  at  the  time  fixed  for  completing  the 
contract,  the  purchaser  is  not  in  default  in  failing  to  tender  the  pur- 
chase money,  and  may  maintain  an  action  for  damages  though  no 
such  tender  has  been  made.8  If  the  parties  agree  to  rescind  the 
contract,  and  the  vendor  fails  to  return  the  purchase  money,  the 
purchaser  cannot  maintain  an  action  for  breach  of  the  contract  and 
recover  back  his  purchase  money  in  the  form  of  damages.  He 
should  sue  in  assumpsit  for  money  had  and  received  to  his  use,  or 
frame  his  complaint  upon  that  hypothesis  in  States  in  which  the 
common-law  system  of  pleading  no  longer  exists.4  If  no  time  be 
fixed  by  the  contract  in  which  the  vendor  must  convey,  he  will  be 
entitled  to  a  reasonable  time,  after  the  payment  of  the  purchase 
money,  in  which  to  execute  the  conveyance.5  We  will  consider 

1  Shurtz  v.  Thomas,  8  Barr  (Pa.),  363;  Carter  v.  Beck,  40  Ala.  599. 

2  Clarke  v.  Locke,  11  Humph.  (Teun.)  300;  Hurst  v.  Means,  2  Swan  (Tenn.), 
594.     But  see  1  Sugd.  Vend.  (8th  Am.  ed.)  357  (236)  where  it  is  said  that  "  if  the 
purchaser  has  paid  any  part  of  the  purchase  money  "  and  the  seller  does  not  com- 
plete his  engagement,  the  former  may  have  his  action  for  damages.     Humpkey 
v.  Norris,  (Ky.)  7  S.  W.  Rep.  888. 

1  Morange  v.  Morris,  34  Barb.  (N.  Y.)  311.  This  proposition,  it  is  conceived, 
must  be  strictly  limited  to  those  cases  in  which  the  contract  expressly  requires 
the  vendor  to  remove  iucumbrances  or  other  objections  to  the  title  before  the 
time  fixed  for  completing  the  contract,  else  it  will  conflict  with  that  eminently 
just  and  reasonable  rule  that  the  vendor  may  rely  upon  the  unpaid  purchase 
money  as  a  means  with  which  to  discharge  incumbrances.  Post,  §  308. 

4  Conley  v.  Doyle,  50  Mo.  234. 

5  Eames  v.  Savage,  14  Mass.  428;  Newcomb  v.  Brackett,  16  Mass.  165. 


16  MATCKKTAnT.K    TITT.E    TO    T7EAT,    ESTATE. 

elsewhere  under  what  circumstances  the  vendor  will  be  allowed  time 
in  which  to  remove  obiections  to  the  title.1 

** 

In  another  part  of  this  work  it  has  been  attempted  to  show  that 
wherever  the  purchaser  seeks  relief  from  the  obligation  of  the  con- 
tract, or  to  assert  a  liability  against  the  vendor,  on  the  ground  that 
the  title  is  bad,  the  duty  devolves  upon  him  to  point  out  the  par- 
ticulars in  which  the  title  is  wanting.2  This  rule  especially  applies 
in  an  action  for  breach  of  contract  to  convey  a  good  title.3 

In  America  actions  to  recover  damages  on  the  ground  that  the 
vendor  is  urable  to  convey  a  good  title,  are  comparatively  infrequent, 
while  the  reports  teem  with  cases  in  which  the  purchaser  seeks  to 
rescind  the  contract  and  recover  back  his  purchase  money.  The 
rea-ons  for  the  comparative  disuse  of  the  action  affirming  the  (-(in- 
fract and  seeking  damages  for  the  breach,  doubtless  are  that  prac- 
tically the  same  relief  is  obtained  in  the  action  to  recover  back  the 
purchase  money,  since,  as  a  general  rule,  the  purchaser  could  not 
recover  damages  in  excess  of  the  purchase  money  ;  and  in  the  latter 
action  the  purchaser  is  not  obliged  to  show  that  he  lias  fully  per- 
formed the  contract  on  his  part  by  payment  of  the  entire  purchase 
money,4  nor  to  show  that  the  title  is  absolutely  bad  and  not  merely 
doubtful,  as  he  must  do  where  he  affirms  the  contract/'  Where. 
however,  the  contract  provides  for  liquidated  damages  in  excess  of 
the  purchase  money,  or  where  by  the  law  of  the  jurisdiction  the 
purchaser  is  entitled  to  recover  damages  in  excess  of  the  purchase 
money,  that  is,  damages  for  the  loss  of  his  bargain,  he  may  find  it 
to  his  advantage  to  bring  his  action  on  the  contract. 

§  2.  DOUBTFUL  TITLE  IN  ACTION  FOB  DAMAGES.  A  dis- 
tinction is  to  be  observed  between  the  action  to  recover  damages  for 
breach  of  the  contract  or  failure  of  the  title  and  an  action  to  rtfeoTOT 
back  the  purchase  money  in  this  re.-pect,  namely,  that  in  the  former 
action  the  plaintiff  cannot  recover  unless  he  shows  that  the  title  is 

1  Poat,  ch.  32. 

»Po*t,   §§    117,   244,  281.     Al.-;i    Mark.-t   (V   v.    (n.-h\.    171    ]-Yd.   96;    98 
\    7n.     There  ure  many  caws  \\lii<-h  Mihtain  this  vn\\.     Hut   MV  \\iNoii 
v.  Holilrn,  16  Abb.  1'r.    (X.  V.)    n.'l.  \\lurc  it  i>  int hunted  tliai    if  tin-  <!• 
of  defective  title  is  made  in  an  action  h\    the  vendor  for  breach  of  th. 
'.  tin-  Inn-den  devnl\e>  on   him   to  allow  a  good   title. 

•:iinon   v.   Blaisdell,  45  Kan-?.  221. 
'H;ir>t    v.  Mean*,  2  Swan    (Tenn.),  594. 
•Post,  5  - 


ACTION    FOR    BREACH    OF    CONTRACT.  17 

absolutely  bad,  while  in  the  latter  he  will  be  entitled  to  a  return  of 
the  purchase  money  if  there  be  a  reasonable  doubt  about  the  title.1 
So  far  as  the  measure  of  relief  is  concerned,  the  distinction  is  unim- 
portant except  where,  by  express  contract  between  the  parties  or 
by  the  law  of  the  jurisdiction,  the  purchaser  would  be  entitled  to 
recover  damages  in  excess  of  the  purchase  money,  the  general  rule 
being  that  the  purchaser  can  recover,  in  the  action  for  damage:-, 
nothing  beyond  the  purchase  money  and  interest.  But  in  respect 
to  the  remedy  arid  the  pleadings  the  distinction  is  vitally  important ; 
for  if  he  declares  upon  the  contract  and  claims  damages  for  the 
breach,  and  the  evidence  shows  that  the  title  is  merely  doubtful,  he 
can  recover  nothing  ;  while,  if  he  had  counted  for  money  had  and 
received  to  his  use,  he  would  have  been  entitled  to  judgment. 

§  3.  PURCHASER  IN  POSSESSION  MAY  MAINTAIN  ACTION, 
It  will  be  seen  hereafter  that  a  purchaser  cannot,  on  failure  of  the 
title,  disaffirm  the  contract  and  recover  back  the  purchase  money 
unless  he  has  been  evicted  or  has  surrendered  the  premises  to  the 
vendor.2  But  no  such  rule  applies  when  he  affirms  the  contract 
and  brings  an  action  to  recover  damages  for  the  vendor's  breach  in 
failing  to  convey  a  good  title.  By  affirming  the  contract  he  elects 
to  hold  himself  answerable  to  the  true  owner.  He  is  under  no 
obligation  to  rescind  on  failure  of  the  title.  He  may  rely  on  his 
vendor's  agreement  to  make  a  good  title  and  take  the  chances  of 
eviction  by  an  adverse  claimant.3  Hence  it  has  been  held  that  the 
purchaser's  possession  of  the  premises  is  immaterial  and  cannot 
affect  his  right  to  maintain  his  action  for  damages  and  to  recover 
substantial  and  not  merely  nominal  damages.4 

'Ingalls  v.  Hahn,  47  Hun  (X.  Y.),  104;  Post,  §  286,  "Doubtful  Titles  at 
Law."  Roberts  v.  McFadden,  (Tex.  Civ.  App.)  74  S.  W.  105,  citing  the  text. 
Mesa  Market  Co.  v.  Crosby,  174  Fed.  96;  98  C.  C.  A.  70. 

2  Post,  ch.  25. 

=  0akes  v.  Buckley,  49  Wis.   502. 

4  Bedell  v.  Smith,  37  Ala.  619.  The  reasons  for  this  rule  were  thus  stated  by 
ALLEX,  J.,  in  Fletcher  v.  Button,  6  Barb.  (N.  Y.)  646,  which  was  an  action  to 
recover  damages  for  the  vendor's  refusal  to  convey  for  want  of  title:  "It  is 
insisted  that  the  plaintiff,  being  in  possession  of  the  premises  up  to  the  time  of 
the  commencement  of  the  action,  he  can  recover  but  nominal  damages;  that 
actual  eviction  was  necessary  to  entitle  him  to  recover  the  entire  purchase  money 
by  way  of  damages  for  the  non -conveyance.  I  am  unable  to  discover  upon  what 
principle  the  possession  of  the  premises  by  the  plaintiff  can  affect  his  remedy  in 
this  action.  The  contract,  for  the  non- performance  of  which  this  action  is 
3 


18  MAKKETABLE    TITLE    TO    REAL    ESTATE. 

§  4.  DEFENSES  TO  THE  VENDOR'S  ACTION  FOB,  BREACH  OF 
CONTRACT.  If  the  vendor  should  bring  an  action  to  recover  dam- 
ages for  breach  of  the  contract,  the  purchaser  may,  of  course,  set 
up  the  defense  that  the  plaintiff  has  no  title,1  or  that  the  title  is 
doubtful,2  or  that  the  estate  is  incumbered,3  or  that  the  plaintiff  has 
made  fraudulent  representations4  in  respect  to  the  title.  Inasmuch 
as  such  an  action  is  rarely,  if  ever,  brought  in  cases  in  which  the 
contract  has  been  partly  performed  by  delivery  of  the  possession  to 
the  purchaser,  it  seldom  happens  that  the  right  of  the  latter  to 
show  a  want  of  title  in  the  vendor  is  complicated  with  any  question 

brought,  Avas  for  the  title  to,  and  not  the  possession  of,  the  premises.  The 
possession  of  the  premises  could  not  have  hern  in  part  performance  of  such 
contract;  and  although  it  may  have  been  beneficial  to  the  plaintiff,  it  did  not 
at  all  mitigate  the  damage*  sii>tained  by  him  by  the  inability  or  unwilling- 
ness of  the  defendant  to  convey  the  premises.  .Again,  if  the  defendant  had 
title  to  the  premises  and  a  right  to  convey  them,  and  has  willfully  refused  to 
perform  his  contract,  lie  has  done  so  in  his  own  wrong,  and  has  voluntarily 
placed  himself  in  a  position  in  which  he  may  lose  the  use  of  the  premises  for 
the  time  during  which  the  plaintiff  has  occupied  them;  but  he  cannot  bo  ]»T- 
mitted  by  his  own  wrongful  act  to  change  the  character  of  the  possession  of 
the  plaintiff  and  make  him  a  tenant  against  his  will  instead  of  a  vendee  in 
possession  under  a  contract  of  purchase.  If  the  defendant  was  not  the  owner, 
but  had  the  right  to  occupy,  or  permit  the  plaintiff  to  occupy  the  pren 
then  having  contracted  to  convey  them  to  the  plaintiff  and  suffered  him  to  go 
into  possession  under  the  contract,  although  he  may  have  acted  under  a  mis- 
take, still  he  must  bear  the  consequences  of  that  mi-take.  The  plaintiff  had 
a  right  to  suppose  that  the  defendant  was  familiar  with  his  own  title,  and 
had  the  right  to  sell  what  he  agreed  to  convey.  If  the  defendant  neither 
owned  the  piemi-cs  nor  had  the  right  to  occupy  them,  or  to  suffer  the  plain- 
tiff to  occupy  them,  then  it  is  very  clear  that  he  should  not  in  any  manner 
have  the  benefit  of  the  possession  by  the  plaintiff.  The  plaintiff,  by  his  occu- 
pation, has  made  himself  a  trespasser,  and  is  liable  to  the  true  owner  for  the 
value  of  such  occupation."  See,  also,  Ilayncs  v.  Farley.  4  Tort.  (Ala.)  .V2S; 
Cray  v.  Mi!!-.  S:i  Fed.  824. 

'2   Warvelle  Vend.  003;   Lewis  v.  White,  16  Ohio  St.  444.   . 

'Post,  ch.  31. 

'Gilbert  v.  Cherry,  51  da.  120.  If  the  pun-baser  reject*  tin-  title  on  the 
ground  that  the  property  in  incum1>crcd.  the  fact  that  the  seller  had  perfected 
an  arrangement  to  -li-cliaiL''1  tin  in-umbrance  out  of  the  pnrc!ia-e  money. 
does  not  support  his  action  for  damage-*,  in  the-  ab-etice  .if  anvthing  to  show 
that  tlie  purchaser  was  advised  or  the  arrangement  and  refund  to  permit 
rea-on:iblr  *teps  to  be  taken  for  its  consummation.  Manitoba  Fi-h  Co.  v. 
Booth,  inn  Fed.  304  f(\  C.  ,\.K 

4 Gilbert  v.  Clierry.  :,7  <:.,.   120. 


ACTION    FOE    BREACH    OF    CONTRACT.  19 

as  to  the  restoration  of  the  premises  to  the  plaintiff,  or  as  to  diffi- 
culty in  placing  him  in  staiu  quo.  If,  however,  such  an  action 
should  be  brought  after  possession  delivered  to  the  purchaser, 
instead  of  an  action  to  recover  the  purchase  money  or  to  compel 
specific  performance,  it  is  apprehended  that  the  defense  of  want  of 
title  in  the  vendor,  amounting  in  substance  to  an  election  to 
rescind  the  contract,  could  not  be  made  without  surrendering,  or 
offering  to  surrender,  the  premises  to  the  plaintiff. 

The  vendor  can  maintain  no  action  against  the  purchaser  for 
breach  of  the  contract  to  purchase,  until  after  the  expiration  of  the 
time  fixed  for  completing  the  contract,  even  though  the  purchaser 
has  absolutely  refused  to  perform  or  accept  performance  of  the 
contract.1  Until  the  time  arrives  when,  by  the  terms  of  the  agree- 
ment, the  vendor  is  or  might  be  entitled  to  performance,  he  can 
suffer  no  injury  or  deprivation  wrhich  can  form  a  ground  of  dam- 
ages.2 If  a  purchaser  of  lands,  to  be  conveyed  free  of  incum- 
brances,  absolutely  refuse  to  take  a  deed  or  to  accept  performance 
of  the  contract  on  grounds  other  than  failure  of  the  title,  or  the 
existence  of  an  incumbrance  upon  the  premises,  he  cannot  after- 
wards, when  sued  for  a  breach  of  the  contract,  avail  himself  of 
defects  in  the  deed  which  was  tendered  to  him,  or  of  the  fact  that 
the  property  was  incumbered.  His  absolute  refusal  to  perform  is 
a  waiver  of  the  right  to  require  performance  on  the  part  of  the 
vendor.3 

The  vendor  will  be  restrained  from  bringing  an  action  at  law  to 
recover  damages  for  breach  of  the  contract,  if  his  bill  for  specific 
performance  has  been  dismissed  for  want  of  title,  unless  dismissed 
without  prejudice  to  his  remedy  at  law.4 

1  Daniels  v.  Newton,  114  Mass.  530;  19  Am.  Rep.  384,  disapproving  Frost 
v.  Knight,  L.  R.  7  Exch.  Ill,  and  Hochster  v.  De  la  Tour,  2  E.  &  B.  678. 

-  Language  of  WELLS,  J.,  in  Daniels  v.  Newton,  supra. 

"Carpenter  v.  Holcomb,  105  Mass.  280;  Wells  v.  Day,  124  Mass.  38.  In 
this  case  the  purchaser  of  three  separate  and  distinct  lots  of  land  refused 
absolutely  to  complete  the  contract  on  grounds  which  applied  only  to  the  first 
two  lots.  The  vendor  resold  the  third  lot  at  a  considerable  loss  and  brought 
an  action  against  the  purchaser  for  breach  of  the  contract,  and  it  was  held 
that  defects  in  a  deed  which  had  been  tendered  to  him,  and  the  existence  of 
a  mortgage  en  the  third  lot  constituted  no  defense  to  the  action. 

41  Sugd.  Vend.  (8th  Am.  ed.)  356;  McNamara  v.  Arthur,  2  Bal.  &  Beat.  349. 


CHAPTER  III. 

IMPLIED  AND  EXPRESS  AGREEMENTS  AS  TO  THE  TITLE 

IMPLIED    AGREEMENTS. 

General   Rule.      §   5. 
EXPRESS  AGREEMENTS. 

General  Principles.      §   6. 

Terms  and  Conditions  of  Sale.      §   7. 

Parol    Evidence.      Auctioneer's    Declarations.      §    8. 

English  Rules  as  to  Conditions.      §   9. 

Agreement  to  make   "Good   and   Sufficient   Deed."      §    10. 

Agreement  to  convey  by  Quit    Claim.     §11. 

Agreement  to  sell  "  Bight,  Title  and  Interest."     $  12. 

Agreement  to  sell  subject  to  Liens.     §  13. 

§  •).  IMPLIED  AGREEMENTS  —  General  Rule.  The  purchaser  is 
entitled  to  require  from  the  vendor,  in  the  absence  of  any  provision 
in  the  contract,  a  good  marketable  title,  free  from  all  defects  or 
incuinbrances.  The  right  to  a  good  title  does  not  grow  out  of 
the  contract  between  the  parties,  but  is  given  by  law  and  i.s  implied 
in  every  contract  of  sale.1  And  the  rule  is  general  that  a  contract 


1  Dnrt  Vend.  &  Purch.  (4th  ed.)  104;  1  Sugd.  Vend.  (8th  Am.  ed.)  24  '( 
456  (298),  510  (337)  ;  Rawle  Cov.  for  Title  (5th  ed.),  §  32:  Hall  v.  Betty, 
4  M.  &  G.  410;  Geoghegan  v.  Connolly,  8  Ir.  Ch.  598;  Souter  v.  Drake,  5 
B.  &  Ad.  992;  Purvis  v.  Rayer,  9  Pri.  488;  Doe  v.  Stanion,  1  M.  4  W.  701; 
Hughes  v.  Parker,  8  M.  &  W.  244;  Sharland  v.  Leifchild,  10  Ad.  &  El.  529; 
Flinn  v.  Barber,  04  Ala.  193;  Easton  v.  Montgomery,  90  Cal.  314;  27  Pac. 
Rep.  281);  25  Am.  St.  Rep.  123;  Krause  v.  Krause,  58  111.  App.  559;  Schreek  v. 
Pierce,  3  Clarke  (Iowa),  350;  Puterhaiigh  v.  Puterbaugh,  (Ind.)  34  X.  E. 
Rep.  Oil;  Durham  v.  Hadley,  (Kans.)  27  Pac.  Rep.  105;  Swan  v.  Drury, 
22  Pick.  (Mans.)  485;  Dwight  v.  Cutler,  3  Mich.  560;  34  Am.  Dec.  105; 
Murphin  v.  Scoville,  41  Minn.  262;  Drake  v.  Barton,  18  -Minn.  414  (462): 
Donlon  v.  Evans,  40  ^linn.  501;  42  N.  W.  Rep.  472;  New  Barbados  Toll 
Bridge  Co.  v.  Vreeland,  3  Green  Ch.  (X.  J.)'  157;  Xewark  Sav.  Inst.  v.  Jones, 
37  X.  .1.  Eq.  440;  Burwell  v.  Jack  won,  9  N.  V.  535,  543,  a  much  cited  CBHP; 
Piimeroy  v  Drury,  14  Barb.  (X.  Y.)  418;  Inness  v.  Willis,  48  X.  Y.  Super. 
Ct.  192;  In  re  Hunter,  1  Ed\r.  (N.  Y.)  1;  Wheeler  v.  Tracy,  49  X.  Y.  Super. 
Ct.  208;  Tharin  v.  Prickling,  2  Rich.  (S.  C.)  301;  Breithaupt  v.  Thurmond, 
3  Rich.  (S.  C.)  210;  Green  v.  Chandler,  25  Tex.  167;  Xelaon  v.  Matthews, 
2  II.  &  M.  (Va.)  104;  3  Am.  Dec.  620;  Moulton  v.  Chaffee,  22  Fed.  Rep.  26. 


IMPLIED  AXD  EXPRESS  AGREEMENTS  AS  TO  THE  TITLE.   21 

for  the  sale  of  lands  which  is  silent  as  to  the  title  or  interest  to  be 
conveyed,  implies  an  agreement  to  conyey  not  only  an  unineum- 
bered  and  indefeasible  estate,  but  such  an  estate  in  fee  simple, 
that  is,  the  largest  estate  that  can  be  had  in  the  premises,1  though 
of  course  it  may  be  shown  that  a  less  interest  was  sold.2 

It  has  been  held  that  in  every  contract  for  the  sale  of  land  there 
is  implied,  also,  an  agreement  that  the  title  of  the  vendor  shall  be 
fairly  deducible  of  record.2* 

An  agreement  to  sell  land  which  contains  no  restrictive  expres- 
sions is  an  agreement  to  sell  the  whole  of  the  vendor's  estate  or 

.Yeif  Cases;  Gervaise  v.  Brookins,  156  Cal.;  103  Pac.  329;  Winkler  v. 
Jerrue,  20  Cal.  App.  555;  129  Pac.  804;  Hixson  v.  Hovey,  18  Cal.  App.  230; 
122  Pac.  1097;  Malloy  v.  Foley,  155  Iowa  447,  133  X.  W.  778;  Smith  v. 
McMahon,  197  Mass.  16,  83  X.  E.  9;  Justus  v.  Button,  89  Xeb.  367,  131 
X.  W.  736;  Brisbane  v.  Sullivan,  83  X.  J.  Eq.  182,  93  Atl.  705;  Behr  v. 
Hurwitz,  90  X.  J.  Eq.  110,  105  Atl.  486;  Walla ch  v.  Riverside  Bank,  206 
X.  Y.  434,  100  X.  E.  50;  Curtis  Land  Co.  v.  Land  Co.,  137  Wise.  341, 
118  X.  W.  853,  129  Am.  St.  Rep.  1068.  The  vendor  in  an  executory  contract 
for  the  sale  of  lands,  in  the  absence  of  express  statements  to  the  contrary, 
represents  and  warrants  that  he  is  the  owner  of  the  property  which  he 
assumes  to  sell,  and  that  he  has  a  good  title  thereto.  Innes  v.  Willis,  16 
Jones  &  S.  (X.  Y.)  188.  In  Owings  v.  Thompson,  3  Scam.  (111.)  502,  the 
broad  rule  is  laid  down  that,  in  the  absence  of  any  express  contract  as  to 
what  kind  of  title  a  purchaser  in  any  case  is  to  receive,  he  must  take  the 
title  at  his  own  risk;  in  other  words,  that  there  is  no  implied  contract  that 
the  title  shall  be  indefeasible.  And  such,  the  court  adds,  is  the  rule  in 
England  and  in  most  of  the  American  States.  It  is  submitted  with  deference 
that  such  is  not  the  rule  either  in  England  or  in  America  (see  authorities, 
ante,  this  note),  except  in  the  case  of  judicial  and  ministerial  sales,  and  that 
the  rule  announced  in  this  case  in  which  the  purchase  was  made  at  a  judicial 
sale,  should  have  been  limited  to  sales  of  that  kind,  as  indicated  in  the 
qualified  concurrence  by  TREAT,  J.,  in  the  opinion  of  the  court.  See  post, 
"  Caveat  Emptor,"  ch.  5. 

1  Cases  cited  in  last  note.  Hughes  v.  Parker,  8  M.  &  W.  244;  Cattell  v. 
Corrall,  4  Yo.  &  C.  228;  Burns  v.  Witter,  56  Oreg.  368,  108  Pac.  129; 
Ginther  v.  Townsend,  114  Md.  122,  78  Atl.  908;  Elkins  v.  Seigler,  154  N.  C. 
374,  70  S.  E.  636. 

2Cowley  v.   Watts,   17   Jur.   172;    Cox  v.   Middleton,   2   Dru.   217. 

2a  Cabrera  v.  Payne,  10  Cal.  App.  103  Pac.  176;  Reed  v.  Sefton,  11  Cal. 
App.  88,  103  Pac.  1095;  Title  Doc.  Co.  v.  Kerrigan,  150  Cal.  289,  88  Pac. 
356,  8  L.  R.  A.  (X.  S.)  682.  See  post,  §  289  as  to  express  agreements  in 
respect  to  the  title. 


22  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

interest  therein.3  It  will  be  presumed  that  the  estate  sold  was  to 
be  accompanied  by  all  of  its  legal  incidents,4  such  as  a  right  of 
way,5  and  that  which  springs  from  the  rule  cujus  est  solum  ejus 
est  usque  ad  ccelum*  or  the  right  to  the  undisturbed  enjoyment  of 
the  space  above  or  the  ground  below  the  surface  of  the  area  of  the 
estate.  But  the  implication  that  the  purchaser  was  to  receive  a 
title  free  from  incumbrance  may  be  rebutted  by  showing  that  he 
had  notice  of  the  existence  of  the  incumbrance.7 

If  the  sale  is  made  subject  to  a  specified  incumbrance,  there  is 
an  implied  warranty  that  there  are  no  other  incumbrances  on  the 
property.7* 

If  the  vendor  agree  to  convey  by  quit  claim  deed  he  merely  con- 
tracts to  sell  such  interest  as  he  then  has,  and  cannot  be  required 
to  convey  an  interest  subsequently  acquired.8  But  the  fact  that 
he  agrees  to  convey  by  quit  claim  does  not  affect  the  right  of  the 
purchaser  to  rescind  on  the  ground  of  defects  in  the  title.8* 

The  sale  of  a  lease  implies  a  contract  on  the  part  of  the  seller 
that  he  will  show  a  good  title  in  the  landlord.9  A  contract,  how- 
ever, to  sell  an  agreement  for  a  lease,  does  not  imply  a  title  in  the 
lessor  to  make  the  lease,  and  an  action  on  the  contract  by  the  seller 

•  1  Sugd.  Vend.   (8th  Am.  ed.)  24   (16)  ;  Bower  v.  Cooper,  2  Ha.  408. 
4  Skull  v.  Clenister,  16  C.  B.   (X.  S.)   81;  33  L.  J.  C.  P.  135. 
•Langford  v.  Selmes,  3  K.  &  Jo.  220;  Denne  v.  Light,  3  Jur.   (X.  S.)   627; 

Stanton  v.  Tattersall,  1  Sm.  &  G.  529,  where  the  purchaser  was  relieved  for 
want  of  proper  access  to  a  house. 

•Lewis  v.  Braithwaite,  2  B.  &  Ad.  437;  Keyea  v.  Powell,  2  El.  &  Bl.  132; 
Sparrow  v.  Oxford  R.  Co.,  2  DeO.,  M.  &  O.  108;  Pope  v.  Garland,  4  Y.  &  C. 
403;  Whittington  v.  Corder,  16  Jur.  1034,  where  there  was  a  failure  of  title 
to  an  underground  cellar. 

1  Newark  Sav.  Inst.  v.  Jones,  37  N.  J.  Eq.  449. 

'•MrPhrrson  v.  Kissee,  239  Mo.  664;  144  S.  W.  410;  Smiddy  v.  Grafton, 
163  Cal.  16,  124  Pac.  433,  Ann.  Cas.,  19.13  K.  921. 

•Post,  fi  218.    Woodcock  v.  Hennet,  1  Cow.   (X.  Y.)   711;  13  Am.  Dec.  568. 

••Wallach  v.  Kiv.-r-ide  Bank,  206  N.  Y.  434,  100  N.  E.  50. 

•  1  Sugd,  Vend.  368;  Tweed  v.  Mills,  L.  R.,  1  C.  P.  39;  Purvi-  v.  Haver,  9 
Pri.  488;  Gaston  v.  Frankum,  2  De  G.  &  Sm.  561;  Clive  v.  Beaumont,  1  DC  G. 
&  Sm.  397;  Hall  v.  Betty,  4  Mann.  &  G.  410;  Soutcr  v  Drake,  5  B.  A  Ad. 
992;  Drake  v.  Shiels,  7  N.  Y.  Supp.  209;   Burwell  v.  Jackson,  9  X.  Y.  539. 


IMPLIED  AND  EXPRESS  AGREEMENTS  AS  TO  THE  TITLE.   23 

cannot  be  defended  on  the  ground  that  the  lessor  had  no  title.2 
Nor  in  an  assignment  of  an  executory  contract  for  the  sale  of 
lands,  is  there  any  implication  of  good  title  in  the  original  vendor.3 
Nor  is  there  any  such  implied  warranty  in  the  assignment  of  a 
land-office  certificate.4 

Inasmuch  as  a  contract  to  convey  a  clear  title  is  implied  in  the 
sale  of  lands,  an  agent  of  the  vendor  does  not  exceed  his  authority 
by  inserting  such  a  provision  in  a  written  contract  of  sale.5  If  it 
appear  that  the  premises  were  sold  at  a  fair  price,  the  presumption 
would  be  that  the  contract  entitled  the  purchaser  to  an  indefeasible 
title.  If,  on  the  other  hand,  the  price  was  merely  nominal,  the 
reasonable  presumption  would  be  that  the  purchaser  could  require 
from  the  vendor  no  more  than  a  quit  claim,  or  release  of  his  rights, 
and  that  he  had  agreed  to  take  the  title  such  as  it  might  be.  The 
legal  implication  of  an  agreement  on  the  part  of  the  vendor  that 
the  title  he  is  to  convey  shall  be  clear,  unincumbered  and  inde- 
feasible, is  to  be  limited  strictly  to  cases  in  which  the  vendor  sells 
in  his  own  right.  Where  the  sale  is  made  in  a  ministerial,  repre- 
sentative or  official  capacity  the  conclusive  presumption  of  law  is 
that  the  vendor  sells  merely  such  interest  as  may  happen  to  be 
vested  in  him,  be  the  same  defeasible  or  indefeasible.  The  maxim 
caveat  emptor  applies,  and  the  purchaser  can  neither  rescind  the 
contract  nor  maintain  an  action  for  damages  if  the  title  turns  out 
to  be  defective.  This  class  of  cases  is  considered  at  some  length 
hereafter.6  If  the  vendor  fails  or  is  unable  to  convey  at  the  time 
fixed  for  the  completion  of  the  contract  such  a  title  as  the  pur- 
chaser may  demand,  there  is  a  breach  of  the  contract  of  sale,  and 
the  latter  may,  if  time  was  of  the  essence  of  the  contract,  have 
his  action  for  damages,  unless  the  title  is  merely  doubtful  and 

2Kintrea  v.  Preston,  1  H.  &  N.  357. 

8  Thomas  v.  Bartow,  48  N.  Y.  193. 

4  Johnston  v.  Houghton,   19   Ind.   309. 

'Keirn  v.  Lindley,   (N.  J.  Eq.)    30  Atl.  Rep.  1063. 

6  Post,  ch.  5,  "  Caveat  Emptor." 


24  MARKETABLE    TITLE    TO    REAL    ESTATE. 

not  absolutely  bad.  In  that  case,  as  we  have  seen,  he  may  rescind 
the  contract  and  recover  back  his  deposit,  but  is  not  entitled  to 
damages.1 

§  6.  EXPRESS  AGREEMENTS.  General  Principles.  Upon  the 
sale  of  real  property  it  is  customary  for  the  parties  to  enter  into 
a  written  contract  containing  their  names,  a  description  of  the 
property,  the  quantity  of  the  estate  sold,  such  as  a  fee  simple  or 
life  estate,  and  the  terms  or  conditions  of  the  sale,  and  fixing  a 
time  when  the  contract  shall  be  fully  executed  by  payment  of  the 
purchase  money  and  a  conveyance  to  the  purchaser.2  The  con- 
tract also  usually  specifies  the  kind  of  title  the  purchaser  is  to 
receive,  and  sometimes  it  is  in  the  form  of  a  sealed  obligation 
under  penalty  on  the  part  of  the  vendor  to  convey  a  good  title,  in 
which  case  the  instrument  is  known  as  a  "  title  bond." 

The  contract  usually  also  provides,  especially  when  the  sale  is 
made  at  public  auction,  that  the  purchaser  shall  have  a  specified 
time  within  which  to  examine  the  title,  and  that  if  the  title  should 
prove  bad  or  unsatisfactory,  the  earnest  money  shall  be  refunded.4 

If  the  purchaser  contract  for  a  title  deducible  of  record,  he  can- 
not be  compelled  to  accept  a  title  resting  altogether  upon  matters 

'Ante,  $  2. 

'  Warvelle  Vend.  eh.  III.     Special  agreements  as  to  title,  post  §  288. 

•Vardaman  v.  Lawson,  17  Tex.  16.  The  court  said  in  this  case  that  a  bond 
for  title  is  an  instrument  which  evidences  a  contract  for  the  sale  of  land,  and 
is  substantially  an  agreement  by  the  vendor  to  make  to  the  vendee  a  title  to 
the  tend  described.  It  seems  scarcely  necessary  to  say  that  many  of  the 
decisions  used  in  the  following  pages  as  illustrations  of  the  rules  of  law 
governing  express  contracts  with  respect  to  the  title  were  not  rendered  in 
actions  by  the  purchaser  for  breach  of  the  contract  of  sale.  The  principles  are 
the  same  whether  the  action  be  by  or  against  the  purchaser  in  affirmance  or 
rmciuion  of  the  contract.  In  each  of  these  caves  the  rights  of  the  purchaser 
are,  of  course,  governed  by  the  express  terms  of  the  contract,  and  no  incon- 
venience, it  is  apprehended,  can  result  from  considering  the  cases  founded 
on  express  contracts  under  the  head  of  affirmance  of  the  contract  and  action 
for  breach,  without  regard  to  the  nature  of  the  proceedings  in  which  the 
decisions  were  made. 

4 1  Warvell««  Vend.  327.  In  Smith  v.  Schiele,  03  C'al.  150,  the  question  was 
raised  whether  an  agent  was  competent  to  make  the  agreement,  "  title  to 
prove  good  or  no  sale,"  but  was  not  decided. 


IMPLIED    AXD    EXl'KESS    AGREEMENTS    AS    TO    THE    TITLE.       25 

77i  pais,1  such,  for  example,  as  a  title  by  adverse  possession.2  A 
stipulation  in  a  contract  of  sale  that  the  vendor  shall  furnish  an 
abstract  showing  title  to  the  property  has  been  said  to  be  equiva- 
lent to  an  agreement  that  the  purchaser  shall  receive  a  good  title 
of  record.3  It  has  been  held  that  an  agreement  to  furnish  a  satis- 

JPage  v.  Greeley,  75  111.  400;  Noyes  v.  Johnson,  139  Mass.  436. 

"Post,   §   292. 

3  2  Warvelle  Vend.  764.  Cabrera  v.  Payne,  10  Cal.  App.  675,  103  Pac.  176. 
Hooe  v.  Callahan,  10  Cal.  App.  567,  103  Pac.  175.  See  upon  this  point  2 
Sugd.  Vend.  (8th  Am.  ed.)  27  (427).  In  Smith  v.  Taylor,  82  Cal.  533,  th« 
c  ontract  contained  the  following  provision :  "  The  title  to  said  above  lands 
to  prove  good  or  no  sale,  five  days  being  allowed  to  examine  abstract  or 
certificate,  and  pass  upon  title  after  abstract  or  certificate  is  delivered."  The 
court,  after  observing  that  this  was  not  simply  a  contract  to  make  good 
title,  continued:  "The  only  fair  interpretation  of  this  contract  is  that  he 
(the  vendor)  was  to  furnish  an  abstract  of  title — a  paper  prepared  by  a 
skilled  searcher  of  records,  which  should  show  an  abstract  of  whatever 
appeared  on  the  public  records  of  the  county  affecting  the  tile  —  and  that 
the  abstract  must  show  good  title,  or  there  was  no  sale  *  *  *.  Under  that 
contract  the  plaintiff  (purchaser)  was  not  bound  to  make  any  investigation 
outside  the  abstract,  or  to  take  the  chances  of  any  litigation  which  the 
abstract  showed  to  be  either  pending  or  probable."  In  Boas  v.  Farrington, 
85  Cal.  535,  the  provision  of  the  contract  was:  "  Title  to  be  good  or  the 
money  to  be  refunded,  party  of  the  first  part  (vendor)  to  furnish  an  abstract 
of  the  title  to  said  land."  The  abstract  furnished  did  not  show  a  good  title, 
and  in  an  action  by  the  purchaser  to  recover  his  deposit,  judgment  was 
rendered  in  his  favor  though  the  court  below  found  that  as  a  matter  of  fact 
the  vendor  had  a  good  title.  This  judgment  was  affirmed  on  appeal,  the 
court  saying:  "The  appellant  contends  that  the  contract  did  not  require 
him  to  furnish  an  abstract  showing  a  good  title,  or  at  most  that  he  was  not 
bound  to  furnish  it  at  the  time  the  defective  one  was  furnished,  or  at  any 
time  before  the  time  for  the  final  payment  of  the  purchase  money,  and  that 
as  it  appeared  at  the  trial  that  he  had  a  good  title  to  the  property  he  was 
entitled  to  judgment.  We  cannot  so  construe  the  contract  *  *  *  certainly 
when  the  abstract  was  furnished,  the  purchaser  had  the  right  to  act  upon  it, 
and  as  it  failed  to  show  a  good  title  in  the  vendor,  the  vendee  was  not 
bound  to  lay  out  of  the  use  of  his  money,  and  pay  the  whole  balance  of  the 
purchase  money  before  he  could  recover  back  any  part  of  what  he  had  paid. 
If  the  vendor  had  a  good  title,  as  the  court  below  found  he  had,  he  should 
have  furnished  an  abstract  showing  it,  and  upon  it  being  called  to  his  atten- 
tion, either  by  the  demand  for  a  rescission  or  otherwise,  that  it  was  defective, 
he  should  have  at  once  caused  a  perfect  abstract  to  be  furnished.  He  did 
neither,  and  in  his  answer  stands  by  the  abstract  furnished  by  him,  and 

4 


26  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

factory  abstract  of  title  referred  only  to  the  fullness  or  complete- 
ness of  the  abstract,  and  not  to  the  quality  of  the  vendor's  title.1 
But  in  some  of  the  States  the  rule  is  that  an  agreement  to  convey  a 
fee  simple  title  clear  of  all  incumbrances  by  warranty  deed  and 
abstract  of  title,  entitles  the  purchaser  to  rescind  if  the  abstract 
does  not  show  a  good  title.1* 

If  the  vendor  agrees  to  furnish  an  abstract  showing  a  clear  title, 
and  the  abstract  furnished  shows  a  defective  title,  the  vendor  can- 
not avoid  a  rescission  on  the  part  of  the  purchaser,  with  proof  that 
adverse  claims  appearing  from  the  abstract  are  in  fact  groundless. 
In  such  a  case  it  has  been  held  that  the  purchaser  may  rescind, 
notwithstanding  the  sufficiency  of  the  title.2  It  has  been  held, 
however,  that  if  a  contract  provide  for  an  abstract  showing  title, 
and  the  abstract  furnished  did  not  show  title,  it  might  be  supple- 
mented by  written  evidences  of  title.8 

asserts  that  it  was  a  good  one.  If  the  abstract  was  a  good  one  it  shows 
that  his  title  waa  bad.  It  is  too  late  now  for  him  to  assert  that  he  was 
not  bound  to  furnish  an  abstract  at  all,  or  that  he  was  not  bound  to  furnish 
it  at  the  time  he  did."  As  to  when  the  purchaser  may  be  compelled  to 
accept  a  title  resting  upon  adverse  possession,  see  post,  §  292.  The  vendor's 
title  cannot  be  deduced  from  the  record  in  a  case  in  which  the  public  records 
have  been  totally  destroyed  by  fire.  Certified  copies  put  upon  record  cannot 
take  the  place  of  the  destroyed  records.  Crim  v.  Ubscn,  155  Cal.  697,  103 
Pac.  178,  132  Am.  St.  Rep.  127. 

1  Fitch  v.  Wollanl,  73  111.  92.  In  England  it  is  said  that  an  agreement  to 
furnish  a  "  perfect  abstract "  means  a  complete  abstract,  that  is,  the  best 
that  the  vendor  can  furnish  though  the  title  itself  be  defective.  Dart. 
Vend.  (5th  ed.)  126,  citing  Hobson  v.  Bell,  2  Beav.  17;  Morley  v.  Cook, 
2  Ha.  111.  But  see  Oilman  v.  Kichler,  265  111.  579,  107  X.  E.  180,  where 
held  that  a  contract  to  convey  by  warranty  deed  a  fee  simple  title,  clear  of 
all  incumbrances,  and  to  deliver  a  "  good  merchantable  abstract  of  title," 
requires  the  vendor  to  deliver,  not  merely  a  merchantable  abstract,  but  an 
abstract  showing  a  merchantable  title. 

'•Post,  |  288.     Austin  v.  Shiptnan,  160  Mo.  App.  206,  141  S.  W.  425. 

'  Smith  v.  Taylor,  82  Cal.  538:  see  extracts  from  this  case,  supra.  Taylor 
v.  Williams,  2  Colo.  App.  S.-itt.  31  Pac.  Rep.  505. 

'  Welch  v.  Dutton,  79  111.  4«i.-|. 


IMPLIED    AND    EXPRESS    AGREEMENTS    AS    TO    THE    TITLE.       27 

The  vendor,  insisting  upon  a  forfeiture  of  the  purchaser's 
deposit,  will  be  held  to  a  strict  performance  of  his  contract  to 
furnish  an  abstract  showing  a  perfect  title  to  the  property.31 

A  contract  to  convey  with  full  covenants  of  warranty  obligates 
the  vendor  to  convey  free  of  incumbrances.3b 

Where  the  written  contract  between  the  parties  requires  the 
vendor  to  convey  a  title  free  from  defects,  parol  evidence  is  inad- 
missible to  show  a  contemporaneous  agreement  that  the  purchaser 
was  to  take  the  title  such  as  it  was.3c 

§  7.  Terms  and  conditions  of  sale.  In  the  American  practice 
there  seems  to  be  nothing  so  elaborate  as  the  English  "  particulars 
and  conditions  of  sale,"  or  "common  conditions,"  as  they  are 
sometimes  called.4  Auction  sales  of  real  estate  are,  with  us, 
usually  preceded  by  a  newspaper  advertisement  or  "hand  bill" 
containing  a  description  of  the  property  and  the  terms  and  con- 
ditions of  the  sale,5  and  these  are  frequently  supplemented,  so 
far  as  the  title  is  concerned,  by  the  verbal  declarations  of  the 
auctioneer  at  the  time  of  the  sale.6 

§  8.  Parol  evidence  —  Auctioneer's  declarations.  Whenever 
specific  performance  of  a  contract  of  sale  is  sought  in  equity,  parol 
evidence  of  declarations  by  the  auctioneer  before  the  sale,  adding 
to  or  altering  the  terms  of  the  sale,  is  admissible  on  behalf  of  the 
defendant,  whether  vendor  or  purchaser.7  In  this  particular  the 
law  is  the  same  in  America  as  in  England.8 

"a  Wright  v.  Bolt,   (Tex.  Civ.  App.)    16»  S.  W.  360. 
"b  Tague  v.  McColm,  145  Iowa   179,  123  N.  W.  960. 
"c  McCulloch  v.  Bauer,  24  N.  D.  109,  139  N.  W.  318. 
4  Post,  this  chapter. 
"See  King  v.  Knapp,  59  X.  Y.  462. 

•Averett  v.  LipsconAe,  76  Va.  404,  affords  an  illustration  of  this  common 
practice. 

T  Averett  v.  Lipscombe,  76  Va.  404. 
'Post,  §  9. 


28  MARKETABLE    TITLE    TO    REAL    ESTATE. 

§  9.  English  rules  respecting  contracts  as  to  the  title. 
Much  of  the  learning  that  is  found  in  the  English  treatises  on  the 
law  of  vendor  and  purchaser  will  be  found  inapplicable  in  America, 
owing  to  the  diversity  between  the  rules  and  practice  of  convey- 
ancing in  the  two  countries.  At  the  same  time  much  that  is  to  be 
found  there  would  seem  to  be  applicable  here,  especially  the  gen- 
eral rules  restricting  or  enlarging  the  liabilities  and  rights  of  the 
parties  with  respect  to  the  title  to  be  conveyed  or  acquired  under 
the  express  terms  of  the  contract  of  sale.1 

1  In  England  a  highly  artificial  system  of  conveyancing  prevails,  a  fact  due  to 
the  intricaicies  of  landed  settlements,  and  to  the  obscurity  in  -which,  from  the 
want  of  a  general  registration  law,  title  to  real  estate  is  there  involved.  A  glance 
at  the  pages  of  Dart  or  Sugden,  the  principal  Eug'ish  treatises  on  the  law  of 
vendor  and  purchaser,  will  suffice  to  show  the  wide  difference  which  exists 
between  the  English  and  American  practice  in  respect  to  the  formalities  and 
preliminaries  attending  the  execution  of  a  contract  for  the  sale  of  lands.  In 
America,  where  land  in  some  sections  changes  owners  with  almost  the  rapidity 
of  personal  property,  the  contract,  particularly  in  rural  districts,  is  usually 
drawn  by  the  parties  themselves,  and  consequently  often  abounds  with  loose  and 
ambiguous  expressions,  or  contains  technical  terms  to  \\  liidi  the  law  gives  a  force 
and  effect  different  perhaps  from  that  which  was  intended  by  the  parties.  Even 
in  the  lar-e  cities  the  terms  and  conditions  upon  which  real  property  is  sold  are 
usually  brief  and  simple.  In  England,  however,  transfers  of  landed  property. 
especially  <>f  the  fee  simple,  are  com paratively  rare  occurrences,  and,  it  would 
seem,  are  seldom  or  never  undertaken  without  the  advice  and  assistance  of  a 
skilled  conveyancer.  The  "  particulars  and  conditions  of  the  sale,"  as  they  are 
c:dl»'d.  are  can-fully  prepared  and  circulated  before  the  sale,  and  incorporated  in 
the  cont met  when  the  sale  is  made;  and  as  a  general  rule  they  set  forth  explicitly 
the  character  of  title  which  the  vendor  will  undertake  to  convey.  The  same 
degne  of  care  and  precaution  is  exercised  in  the  case  of  private  sales.  If  the 
vendor  intends  to  sell  only  such  interest  as  he  has,  IK;  what  it  may,  the  technical 
expression  employed  is.  "  that  he  shall  not  be  required  to  produce  a  title."  appar- 
ently a  figure  of  speech,  meaninir  tliat  the  vendor  shall  not  be  required  to  fur- 
nish an  abstract,  or  to  produce  deeds,  affidavits,  pedi -Trees  or  oilier  document* 
showing  a  marketable  title  in  himself.  In  the  absence  of  a  gem-mi  registry  of 
derds  and  incumbrances.  the  purchaser  can  have,  of  course,  no  opportunity  to 
judge  of  the  sufficiency  of  the  vendor's  title,  unless  the  instruments  by  which  it 
is  evidenced  an;  pnxluced,  and  to  take  a  title  without  the  exhibition  of  such  evi 
deuces  necessarily  means  to  take  just  such  title  an  the  vendor  has.  Perhaps  the 
most  important  point  to  be  considered  in  determining  the  application  of  English 
decisions,  in  American  ca-es.  affecting  the  rights  of  the  parties  with  respect  to 
the  title,  as  dependent  on  the  express  terms  of  their  contract,  is  the  fact  that  in 
England  tin-  purchaser  can  only  require  covenants  against  defects  of  title  arising 
from  the  acts  of  the  vendor  himself,  while  in  America,  except  in  a  few  of  the 


IMPLIED    AXD    EXPRESS    AGREEMENTS    AS    TO    THE    TITLE.       29 

"  Particulars  "  or  "  conditions  "  of  the  intended  sale  are  prepared 
by  the  vendor's  counsel  and  circulated  in  the  auction  room  before 
the  sale  as  well  as  announced  bj  the  auctioneer  at  the  time  of  sale.1 
These,  it  is  presumed,  while  much  more  elaborate,  correspond  to 
some  extent  with  the  "  hand  bill "  or  "  advertisement  "  commonly 
employed  in  America,  containing  a  description  of  the  property  and 
terms  of  the  sale,  and  any  other  matter  to  which  the  attention  of 
prospective  buyers  is  to  be  called.  If  the  sale  is  by  private  con- 
tract, the  same  rules  apply  as  in  the  case  of  ordinary  conditions  of 
sale  by  auction.2  The  particulars  usually  give  a  description  of 

States,  the  rule  is  that  the  purchaser  may  demand  a  conveyance  with  gen- 
eral covenants,  that  is,  against  the  acts  of  all  persons  whomsoever,  no  matter 
how  far  back  in  the  chain  of  title.  As  the  intention  of  the  parties  must  govern 
in  the  construction  of  the  contract,  and  as  that  intention  must  be  largely  affected 
by  the  extent  of  the  rights  which  they  acquire  or  lose  by  the  terms  of  the 
contract,  it  is  obvious  that  the  difference  is  one  of  vital  importance,  and  should 
constantly  be  borne  in  mind.  Of  course  the  purchaser  may  in  America,  as  iti 
England,  agree  to  take  the  title  of  the  vendor  such  as  it  is,  good  or  bad,  and 
language  sufficiently  evidencing  such  an  agreement  in  England  may  have  the 
same  effect  in  America.  But  it  by  no  means  follows  that  language  which  in 
England  would  require  the  purchaser  to  take  such  title  as  the  vendor  had,  would 
in  all  cases  in  America  be  followed  by  the  same  consequences,  and  deprive  the 
purchaser  of  his  right  to  maintain  or  defend  an  action  for  breach  of  contract,  on 
the  ground  of  inability  of  the  vendor  to  convey  a  marketable  title,  or  to  require 
covenants  adequate  for  his  protection.  For  these  reasons  it  has  been  deemed 
best  to  separate  in  the  following  pages  the  English  rules  respecting  contracts  in 
relation  to  the  title  from  the  American  doctrine,  except  in  those  cases  where  the 
rules  in  question  have  been  approved  or  adopted  by  the  American  courts. 

1  ''The  conditions  of  the  sale  should  be  printed  and  circulated  some  time  pre- 
viously to  the  sale  or  at  any  rate  in  the  auction  room,  so  as  to  give  each  person  an 
opportunity  of  ascertaining  the  terms  on  which  the  property  is  sold.  The  sys- 
tem which  is  adopted  by  some  of  the  provincial  law  societies  of  having  printed 
common  form  conditions,  which  are  used  on  every  sale,  and  to  which  are  prefixed 
the  special  conditions  under  which  the  particular  property  is  sold,  has  much  to 
recommend  it;  the  effect  of  the  common  form  conditions  is  well  understood,  and 
the  attention  of  the  purchaser  and  his  solicitor  is  at  once  directed  to  the  special 
restrictive  conditions.  The  practice,  which  still  prevails  in  some  parts  of  the 
country,  of  having  written  conditions  which  are  merely  produced  and  read  over, 
but  not  circulated  in  the  auction  room,  cannot  be  too  strongly  reprobated;  and, 
if  the  purchaser  is  thereby  misled  or  not  fully  informed  on  a  material  point,  may 
result  in  the  rescission  of  the  contract."  Dart  V.  &  P.  (oth  ed.)  124,  citing  Tor- 
ranee  v.  Bolton,  L.  R.,  14  Eq.  134;  8  Ch.  App.  118. 

'Rhodes  v.  Ibbetson,  4  De  G..  M.  &  G.  787;  Bulkley  v.  Hope,  1  Jur.  (X.  S.) 
864. 


30 


MARKETABLE    TITLE    TO    REAL    ESTATE. 


the  property  and  the  nature  and  extent  of  the  vendor's  interest. 
The  conditions  state  the  terms  on  which  the  property  is  sold, 
including  the  undertakings  of  the  vendor  with  respect  to  the  title.1 
When  the  sale  is  made  the  auctioneer  usually  indorses  the  agree- 
ment on  a  copy  of  the  particulars  and  conditions,  thereby  embody- 
ing them  in  the  contract  of  sale.2 

Every  condition  intended  to  relieve  the  vendor  from  \\isjyrima 
faci£  liability  to  deduce  a  marketable  title  and  verify  the  abstract 
by  proper  evidence  at  his  own  expense  must  be  expressed  in  plain 
and  unambiguous  language.4  The  purchaser,  however,  will  be  bound 
by  a  clear  stipulation  as  to  the  title ; 5  for  example,  an  agreement 
by  assignees  in  bankruptcy  to  sell  the  estate  of  the  bankrupt  "  under 
such  title  as  he  recently  held  the  same,  an  abstract  of  which  may  be 
seen;"6  or  that  the  purchaser  should  only  have  the  receipt  and 
conveyance  of  an  equitable  mortgagee  and  his  assignees  ;7  an  agree- 
ment by  the  vendors  that  they  should  convey  only  "  such  title  as 
they  had  received  from  A.; " 8  that  the  purchaser  should  accept  the 
vendor's  title  "  without  dispute ;  " 9  that  he  should  accept  "  such 

1  Dart  V.  &  P.  (5th  ed.)  114.    In  Torrance  v.  Bolton,  L.  R.,  14  Eq.  180,  it 

appeared  that  the  particulars  erroneously  described  the  quantity  of  the  vendor's 
estate,  .but  that  the  conditions  contained  a  correct  description.  It  also  appeared 
that  the  conditions  •were  read  by  the  auctioneer  nt  the  sale,  but  it  did  not  appear 
that  they  had  been  distributed  among  the  bystanders.  The  purchaser  was 
allowed  to  rescind. 

*  Dart  V.  &  P.  (5th  ed.)  114.     Where  the  auctioneer  read  from  an  altered  copy 
the  particulars  and  conditions,  but  inadvertently  signed  an  agreement  on  an  unal- 
tered copy,  it  was  held  that  the  purchaser  was  bound,  though  it  did  not  appear  that 
he  had  heard  the  auctioneer  read  the  altered  copy.     Manser  v.  Buck,  G  Ha.  443. 

•Sugd.  17;  Dart.  V.  &  P.  (5th  ed.)  109;  Rawlc  Cov.  §  82;  Souter  v.  Drake,  5 
B.  &  A.  992;  Doc  v.  Stanion.  1  M.  &  W.  695;  Hall  v.  Betty,  4  Mann.  &  G.  410; 
Worthington  v.  Warrington,  5  C.  B.  630. 

4Drysdale  v.  Mace,  2  8m.  &  Gift*.  225;  Symons  v.  James,  1  Y.  &  C.  (C.  C.)  490; 
Osborne  v.  Harvey,  7  Jur.  229;  Clark  v.  Faux,  8  Huss.  820;  Morris  v.  Kearsley, 
2  Y.  &  C.  189;  Waddell  v.  Wolfe,  L.  R..  9  Q.  B.  515;  Blake  v.  Phinn.  8  C.  B. 
976;  Madcly  v.  Booth,  9  De  G.  &  8.  718;  Webb  v.  Kirby.  7  De  G.,  M.  &  G.  376; 
Edwards  v.  Wickwar,  L.  R.,  1  Eq.  68;  Jackson  v.  Whitchcad,  2H  Beav.  154. 

•Beaton  v.  Mapp,  2  Coll.  556;  Forster  v.  Hoggart,  15  Q.  B.  155;  Worthington 
T.  Warrington.  5  C.  B.  686;  Lethbridge  v.  Kirkman,  2  Jur.  (N.  8.)  372. 

'  Frcmc  v.  Wright,  4  Madd.  864. 

1  Groom  v.  Booth,  1  Dre.  548. 

•  Wilmot  v.  Wilkinson,  6  B.  A  C.  506;  Ashworth  v.  Mounscy,  9  Exch.  176. 
•Duke  v.  Bamett,  2  Coll.  337;  Molloy  v.  Sterne,  1  Dru.  &  Wai.  585. 


IMPLIED   AND    EXPRESS    AGREEMENTS    AS    TO    THE    TITLE.        31 

title  as  the  vendor  has."  l  So  where  the  agreement  provided  that 
the  title  should  "  not  be  inquired  into."  *  So,  also,  where  the  defect 
of  title  was  clearly  stated  in  the  conditions  of  sale.3 

It  seems,  however,  to  be  by  no  means  clear  that  in  England  a  con- 
dition of  sale  that  the  vendor  should  not  be  required  to  produce  a  title, 
will  prevent  the  purchaser  from  showing  aliunde  that  the  title  is  bad. 
There  have  been,  apparently,  conflicting  decisions  upon  the  point.4 

But  while  the  purchaser  will  be  bound  by  a  clear  stipulation  in 
the  conditions  of  sale  respecting  the  title,  the  vendor  will  be  strictly 
held  to  any  representations  he  has  made  regarding  the  title.5  And 

1  Keyse  v.  Heydon,  20  L.  T.  244;  Tweed  v.  Mills,  L.  R.,  1  C.  P.  39.  . 
s  Hume  v.  Bentley,  5  De  G.  &  S.  520.   Compare  Darlington  v.  Hamilton,  Kay, 
550,  and  Waddell  v.  Wolfe,  L.  R.,  9  Q.  B.  515. 

3  Nichols  v.  Corbett,  3  De  G.,  J.  &  8.  18. 

4  In  Spratt  v.  Jeffery,  5  Mann.  &  Ry.  188;  10  B.  &  C.  249,  the  agreement  was 
in  the  following  words:  "And  the  said  (purchaser)  doth  hereby  agree  to  accept  a 
proper  assignment  of  the  said  two  leases  and  premises,  as  above  described,  with- 
out requiring  the  lessor's  title."    BAYLEY,  J.,  for  the  court,  said  that  "the  fair  and 
reasonable  construction  of  those  words  is  the  purchaser  shall  not  be  at  liberty  to 
raise  any  objection  to  the  lessor's  title."    In  Shepherd  v.  Keatley,  1  Crompt.,  M. 
&  R.  117,  the  agreement  was  "  that  the  vendors  should  deliver  an  abstract  of  the 
lease,  and  of  the  subsequent  title  under  which  the  leasehold  lots  are  held,  but 
should  not  be  obliged  to  produce  the  lessors  title."    In  this  case  the  language  italicised 
was  held  distinguishable  from  that  in  Spratt  v.  Jeffery,  supra,  and  that  it  did  not 
preclude  the  purchaser  from  taking  any  objections  to  the  title  which  he  might 
discover.     These  cases  are  apparently  in  conflict,  but  have  been  held  reconcilable 
in  Duke  v.  Barnett,  2  Coll.  337.     Sugden  says  that  Spratt  v.  Jeffery  would  prob- 
ably not  now  be  followed.     Sugd.  Vend.  (8th  Am.  ed.)  26.     See,  also,  Fry  Sp. 
Perf.  (3d  Am.  ed.)  614,  where  that  case  is  said  to  have  been  overruled.     In  Hume  v. 
Pocock,  L.  R.,  1  Eq.  428,  Sir  JOHN  STUART,  V.  C.,  said:  "  There  is  no  doubt  that  in 
contracts  for  the  sale  and  purchase  of  property  the  terms  of  the  contract  must  be 
clear,  in  order  that  the  court  may  see  how  far  the  subject-matter  of  the  purchase 
can  be  given  by  the  party  who  contracts  to  sell  to  him  who  contracts  to  buy.     But 
the  owner  of  a  disputed  title  may  make  a  valid  contract  for  the  sale  of  that'  title, 
such  as  it  may  be.     No  doubt,  with  reference  to  the  terms  of  a  contract,  it  is 
implied  that  the  purchaser  is  to  have  an  indefeasible  title;  and  although  the  ven- 
dor may  have  entered  into  a  contract  that  he  shall  not  be  bound  to  produce  a  title, 
yet  the  terms  of  the  contract  may  be  such  that  if  it  appears  aliunde  that  he  has 
no  title,  and  can,  therefore,  give  the  purchaser  nothing,  the  court,  in  such  a  case, 
would  not  make  a  decree  for  specific  performance.     The  meaning  of  specific  per- 
formance is  that  there  shall  be  conveyed  what  the  vendor  has  contracted  to  sell  to 
the  purchaser." 

6  Sugd.  17;  Forster  v.  Hoggart,  15  Q.   B.   155;  Hume  v.  Bentley,  5  De  Q.  & 
Sm.  520;  Hoy  v.  Smythies,  22  Beav.  510;  Nott  v.  Ricard,  22  Beav.  307. 


32  MARKETABLE    TITLE    TO    REAL    ESTATE. 

if  there  be  any  reasonable  doubt  or  misapprehension  as  to  the  mean- 
ing of  the  particular  and  conditions,  they  will  be  construed  in  favor 
of  the  purchaser.1  It  seems,  also,  that  any  undertaking  on  the  part 
of  the  vendor  with  respect  to  the  title  will,  as  a  general  rule,  be 
strictly  construed  in  favor  of  the  purchaser.2 

Inde]>endently  of  any  express  stipulation  in  the  particulars  and 
conditions,  there  may  be  special  circumstances  showing  that  the 
vendors  title  was  not  to  be  called  for,  and  that  the  purchaser  was  to 
take  the  title  such  as  it  was.3  But  if  the  contract  stipulate  that  the 
vendor  shall  deduce  and  make  a  good  title,  he  must  do  so,  although 
the  purchaser  be  aware  of  objections  to  the  title.4 

Charges  upon  the  estate,  or  restrictions  upon  the  purchaser's  right 
of  absolute  enjoyment,  the  release  of  which  cannot  be  procured  by  the 
vendors,  or  which  do  not  fairly  admit  of  compensation,5  or  of  which 
the  purchaser  has  no  notice,8  should  be  stated  in  the  particulars 
of  sale,  otherwise  the  purchaser  may,  in  many  cases,  avoid  the 
sale.7 

If  the  attention  of  the  purchaser  be  drawn  to  objectionable  con- 
ditions of  sale,  he  may  be  bound  by  them  if  he  makes  his  bid  without 
objection.1* 

1  Dart  V.  &  P.  (5th  ed.)  109;  Taylor  v.  Miirtinckle,  1  Y.  &  C.  (C.  C.)  661;  Symons 
v.  James,  Id.  490;  Beaton  v.  Mapp,  2  Coll.  C.  C.  562;  Nouuille  v.  Flight.  7  Beav. 
521;  Smith  v.  Ellis,  14  Jur.  082;  Graves  v.  Wilson.  25  Boav.  200;  BruinlH  v. 
Morton.  8  Jur.  (N.  S.)  1198;  Jacksou  v.  Whitehead,  28  Beav.  154;  Swaisland  v. 
Dcarslcy.  29  Beav.  480. 

*  Dart    V.  &  P.  (5th  ed.)  110;  Dawes  v.  Belts,  12  Jur.  412. 

•Dart  V.  &  P.  (5th  ed.)  151;  Richardson  v.  Eyton,  2  I)e  O.,  M.  &  O.  79; 
Godson  v.  Turner,  15  Beav.  46. 

4  1  Sugd.  Vend.  887;  Burnett  v.  Wheeler,  7  M.  &  W.  364. 

•Sugd.  5,  6.  311,  812;  Dart.  V.  &  P.  (5th  ed.)  116.  117;  Torrnnce  v.  Bolton.  L. 
R.,  14  Eq.  124;  8  Ch.  App.  118.  See  "  CoinjKJusation  for  Defects."  ]*>*1,  g  825. 

•  Hall  v.   Smith.  14  Yea.  428;  Pope  v.  Garland,  4  Y.   &  C.   894;  Patterson  v 
Long.  6  Beav.  590;  Lewis  v.  Bond,  18  Beav.  85. 

'Tumor  v.  Bcaurnin.  Sugd.  812;  Biirwell  v.  Brown,  1  Jac.  &  W.  72;  Son n tun 
r.  Vawdre j,  16  Ves,  390;  Uain*d«-n  v.  Hirst,  6  W.  R.  349;  Shackleton  v.  SutclifTe. 
1  De  G.  &  9m.  «0»;  Coverly  v.  liurraU.  Sug.  27;  Ballard  v.  Way.  1  M.  &  W. 

•Dart  V.  ft  P.  110.  Thus,  when  the  conditions  were  "  catching  "  or  decep- 
tive, and  the  purchaser  inquired  whether  a  good  marketable  title  could  be  mnde, 
and  th-  vendor1*  ngrnUi  refused  to  innort  any  auch  statement  in  the  contract,  but 
declared  that  a  good  title  could  be  made  under  the  existing  conditions,  the 


IMPLIED   AXD  EXPRESS  AGREEMENTS  AS   TO   THE   TITLE.         33 

A  stipulation  that  the  sale  shall  be  void  if  the  purchaser  does  not 
pay  the  purchase  money,  or  if  the  vendor  cannot  make  a  good  title, 
at  a  specified  time,  will  not  justify  either  party  in  arbitrarily  defeat- 
ing the  sale  by  declaring  that  he  cannot  pay  the  purchase  money  in 
the  one  case  or  make  the  title  in  the  other  at  the  appointed  time. 
Either  party,  upon  the  default  of  the  other,  may  avoid  the  sale,  but 
cannot  elect  to  avoid  it  by  merely  declaring  his  inability  to  perform 
the  contract.1 

Yerbal  declarations  by  the  auctioneer,  at  the  time  of  sale,  will 
not,  as  a  general  rule,  be  admitted  for  the  purpose  of  contradicting, 
explaining  or  adding  to  the  particulars  and  conditions  of  the  sale.2 
But,  while  such  declarations  are  inadmissible  at  law  on  behalf  of 

purchaser  was  required  to  take  the  title.     Hyde   v.    Dallaway,   6  Jur.    119;  4 
Beav.  606. 

1  1  Sugd.  23;  Roberts  v.  Wyatt,  2  Taunt.  268;  Rippingall  v.  Lloyd,  2  Nev. 
&  Man.  410;  Page  v.  Adam,  4  Beav.  269;  Malms  v.  Freeman,  4  Bing.  N.  C.  395; 
Wilson  v.  Carey,  10  M.  &  W.  641.  The  following  observations  by  Mr.  Dart,  on 
the  utility  of  unusual  conditions  of  sale,  may  be  of  use  in  those  localities  where  it 
is  the  custom  to  pay  particular  attention  to  conditions  respecting  the  title: 
•  Lastly,  it  may  be  remarked  that  those  conditions  which  to  an  unprofessional 
eye  appear  the  simplest,  are  often  the  most  dangerous,  and  those  which  appear 
difficult  and  complex  to  the  unlearned  purchaser  may  not  unfrequently  produce 
nn  impression  favorable  to  the  title  upon  the  mind  of  his  legal  adviser.  The  con- 
veyancer who,  upon  the  purchase  of  a  large  estate,  peruses  a  series  of  special 
stipulations,  which  have  evidently  been  framed  with  reference  to  points  which 
might  be  made  matters  of  serious  annoyance  by  litigious,  but  are  of  little 
practical  importance  to  the  willing  purchaser,  is  naturally  disposed  to  believe 
that  no  real  difficulties  exist  where  minor  objections  have  been  so  carefully  antici- 
pated; and,  on  the  other  hand,  nothing  is  more  common  than  to  see  conditions 
whose  concise  simplicity  disarms  the  suspicion  of  the  unprofessional  reader,  but 
whose  sweeping  clauses  reduce  counsel  to  the  dilemma  of  either  advising  a  client 
to' complete,  under  serious  uncertainty,  whether  he  will  acquire  even  a  tolerably 
safe  holding  title,  or  of  involving  him  in  inquiries  which  are  almost  sure  to  be 
heavily  expensive,  and  may  probably  prove  wholly  unsatisfactory.  The  writer 
may  also  be  allowed  to  add,  as  the  result  of  a  somewhat  wide  experience,  that, 
in  his  opinion,  the  number  of  seriously  defective  and  dangerous  titles,  which,  at 
the  present  day,  are  brought  into  market  and  passed  off  upon  purchasers  under 
the  cover  of  special  conditions  of  sale,  is  much  larger  than  is  commonly  supposed." 
Dart  V.  &  P.  (5th  ed.)  176. 

2  Sugd.  Vend.  15,  where  such  declarations  are  referred  to  as  the  "babble  of  the 
auction  room."    Dart  V.  &  P.  (5th  ed.)  110;  1  Jac.  &  W.  639;  Higginson  v. 
Clowes,  15  Ves.  521 ;  Manser  v.  Back,  6  Ha.  443;  Goss  v.  Lord  Nugent,  5  B.  & 
A.  58;  2  K  &  M.  28;  Vandever  v.  Baker,  13  Pa.  St.  i21. 
5 


34  MARKETABLE    TITLE    TO    REAL    ESTATE. 

either  plaintiff  or  defendant,1  they  will  in  equity  be  admitted  in 
favor  of  the  purchaser  when  sued  for  specific  performance.2  Parol 
evidence  of  declarations  at  the  time  of  sale  is  inadmissible  in  equity 
in  favor  of  the  vendor-plaintiff,  even  though  the  purchaser  expressly 
agreed  to  abide  by  the  declarations.8  Nor  can  the  purchaser  avail 
himself  of  such  evidence  as  plaintiff  in  equity.4  If  statements  be 
made  at  the  sale  varying  from  the  particulars  and  conditions,  the 
purchaser  should  require  them  to  be  put  in  writing,  so  as  to  preserve 
his  rights  as  plaintiff  in  equity.5 

Personal  information  given  to  the  purchaser  as  to  incumbrances 
on  the  estate,  or  even  declarations  by  the  auctioneer  on  such  points, 
may  be  given  in  evidence,  either  by  the  vendor  or  the  purchaser,  as 
a  defense  in  a  suit  for  specific  performance,  but,  as  a  general  rule, 
has  been  held  inadmissible  on  behalf  of  the  plaintiff.6 

If  there  is  a  discrepancy  between  the  particulars  of  sale  and  an 
instrument  of  title  to  which  they  refer,  and  the  instrument  be  the 
nn>re  favorable  to  the  purchaser,  the  vendor  will  be  bound  by  the 
instrument  and  must  show  a  title  in  conformity  thereto.7 

§10.  Agreements  to  make  "good  and  sufficient  deed." 
Inasmuch  as  the  law  implies  a  contract  that  the  purchaser  shall 
receive  a  good  title  to  the  land,  free  from  all  defects,  charges  and 
incumbrances,  it  would  seem  unnecessary  that  the  purchaser  should 
insert  in  the  contract  any  provision  assuring  him  such  a  title.  Indeed, 
the  anxiety  of  the  purchaser  to  protect  himself  by  such  a  precaution 
appears  sometimes  to  have  resulted  in  disaster,  for  there  have 
been  several  decisions  that  an  agreement  to  give  a  sufficient 
warranty  deed  referred  only  to  the  sufficiency  of  the  instru- 

1  Gunnis  v.  Erhart,  1  H.  Bl.  289;  Ford  v.  Yates,  2  Mann.  &  G.  649;  Eden  v. 
Blake,  13  M.  &  W.  614;  Greaves  v.  Ashlin,  3  Camp.  426;  Powell  v.  Edmunds,  12 
East,  6. 

»8ugd.  15;  Dart  V.  &  P.  (5th  ed.)  Ill;  Swaisland  v.  Dearsley.  29  Bcav.  430. 
The  same  rules  apply  between  original  purchaser  and  Bub-purchaser.  Dart.  Id.; 
Khclton  v.  Livius,  2  Cr.  &  J.  411.  The  rule  stated  in  the  text  baa  been  applied  in 
America.  Soe  Averett  v.  Lipscombc,  76  Va.  409. 

'Higginson  v.  Clowes,  15  Ves.  521;  Clowes  v.  lligginaon,  1  Ves.  «fc  B.  524; 
Fife  v  Clayton,  1  C.  P.  C.  N.  R.  852;  but  see  Swaisland  v.  Dearsley,  .»•>/„,/. 

«8ugd.  Vend.  15. 

•Dart  V.  &P.  (5th  ed.)  111. 

•Sugd.  Vend.  15;  Dart  V.  &  P.  (5th  ed.)  112;  15  Ves.  528:  1  V.  s.  &  H.  524. 

'Dart  V.  &P.  (5th  i-d.)  l-.'u 


IMPLIED    A^TD    EXPRESS    AGREEMENTS    AS    TO    THE    TITLE.       35 

ment  tendered  by  the  vendor,  and  that  the  contract  was  satisfied 
if  the  instrument  was  suificient  as  a  conveyance,  though  the 
vendor's  title  was  bad.1  Unless  the  facts  clearly  showed  that  the 
parties  were  contracting  especially  with  reference  to  known 

1  Brown  v.  Covilland,  6  Cal.  566.  In  this  case  it  was  said  that  if  the  con- 
tract had  called  for  a  good  and  sufficient  warranty  deed,  instead  of  a  good 
and  sufficient  deed  merely,  the  vendors  would  have  been  compelled  to  convey 
a  clear  title,  and  not  merely  such  title  as  they  had,  whatever  it  might  be,  to 
fhe  purchaser;  citing  Tinny  v.  Ashley,  infra.  See,  also,  Green  v.  Covilland, 
10  Cal.  322;  70  Am.  Dec.  725.  Haynes  v.  White,  55  Cal.  38,  seems  to  be  at 
variance  with  these  cases.  Tinney  v.  Ashley,  15  Pick.  (Mass.)  552;  26  Am. 
Dec.  .620.  Gazley  v.  Price,  16  Johns.  (N.  Y.)  267;  Parker  v.  Parmele,  20 
Johns.  (N.  Y.)  132;  11  Am.  Dec.  253.  Barrow  v.  Bispham,  6  Halst.  (N\  J.) 
110.  Gregory  v.  Keenan,  256  Fed.  949.  A  provision  that  the  vendor  shall 
convey  "  by  a  good  and  sufficient  warranty  deed  in  the  usual  form "  does 
not  require  that  the  vendor's  title  shall  be  deducible  of  record.  Mesa  Market 
Co.  v.  Crosby,  174  Fed.  96,  18  C.  C.  A.  70.  In  Hill  v.  Hobart,  16  Me.  164,  a 
distinction  ia  drawn  between  an  agreement  to  make  a  deed,  or  a  deed 
described,  and  an  agreement  "  to  make  a  good  and  sufficient  deed  to  convey 
the  title  "  to  the  premises.  In  the  first  case  it  is  said  that  the  contract  is 
performed  by  giving  such  a  deed  or  conveyance  as  the  contract  describes, 
however  defective  the  title  may  be.  See,  also,  Tobin  v.  Bell,  61  Ala.  125. 
STRAHAW,  J.,  in  Thompson  v.  Hawley,  14  Oreg.  199 :  "  It  seems  to  me  that 
the  more  reasonable  rule  is  that  where  the  terms  of  the  contract  are  such  as 
to  bind  the  grantor  to  convey  by  good  and  sufficient  deed,  or  to  make  a  good 
and  sufficient  conveyance,  he  can  only  perform  his  agreement  by  making  a 
deed  that  will  pass  a  good  title.  But  if  it  clearly  appears  from  the  contract 
itself,  or  from  the  circumstances  accompanying  it,  that  the  parties  had  in 
view  merely  such  conveyance  as  will  pass  the  title  which  the  vendor  had, 
whether  defective  or  not,  that  is  all  the  vendee  can  claim  or  insist  upon." 
Citing  Porter  v.  Noyes,  2  Greenl.  (Me.)  22;  11  Am.  Dec.  30;  and  cases 
cited  there.  It  is  hardly  to  be  supposed,  however,  that  if  the  vendor  meant 
to  obligate  himself  only  to  convey  such  title  as  he  had,  he  would  describe  it 
by  such  an  ambiguous  expression  as  "  good  and  sufficient  deed."  See  extract 
from  Tindall  v.  Conover,  1  Spencer  (N".  J.  L.)  214;  11  Am.  Dec.  220,  infra. 
In  Aiken  v.  Sanford,  5  Mass.  494,  it  was  said  that  a  contract  to  convey  "  by 
a  good  and  sufficient  warranty  deed"  was  satisfied  by  a  conveyance  in  proper 
form  and  regularly  executed,  if  the  grantor  was  seized  so  that  the  land  passed 
by  it.  The  reporter  adds :  "  But  the  court  observed  that  they  did  not  mean 
to  determine  that  in  no  case  these  words  should  be  considered  as  applying  to 
the  title.  If  the  money  was  to  be  paid  on  receiving  the  deed,  it  might  be  a 
reasonable  construction  that  a  good  and  sufficient  title  'should  be  conveyed; 
otherwise  the  purchaser  might  part  with  his  money,  not  merely  for  the  land, 
but  for  a  law  suit  also.  In  the  present  case,  however,  the  money  was  to  be 
first  paid,  and  the  plaintiff  might  as  well  sue  on  the  covenants  in  his  deed 
as  on  his  bond.  There  was,  therefore,  no  reason  for  giving  a  construction  to 
the  words  not  naturally  implied  by  them."  These  observations  were  approved 
in  Swan  v.  Drury,  22  Pick.  (Mass.)  488. 


36  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

defects  of  title,  it  would  be  difficult  to  perceive  any  grounds  upon 
which  such  decisions  could  be  rested,  since  no  man  in  his  senses 
would  bargain  for  a  shadow  when  the  substance  was  equally  within 
his  reach.  In  the  absence  of  any  evidence  to  the  contrary,  it 
would  seem  that  in  a  contract  to  "give  a  good  and  sufficient  deed," 
the  words  "  good  and  sufficient  deed  "  are  a  mere  figure  of  speech, 
meaning  a  clear  and  uniucumbered  title,1  especially  where,  as 
is  frequently  the  case,  the  contract  was  the  work  of  an  unskilled 
draughtsman.2  Accordingly  the  decisions  mentioned  liave  been 
frequently  overruled  or  disapproved,  and  the  established  doctrine 
now  is  that  an  agreement  to  convey  land  by  a  good  and  sufficient 
warranty  deed  is  not  performed  by  the  mere  execution  of  a  war- 
ranty deed  sufficient  in  form,  if  the  title  of  the  grantor  be  ojK?n  to 
reasonable  doubt,1  or  if  there  be  an  incumbrance  upon  the  prop- 
erty.3* rj>on  a  like  principle  it  has  been  decided  that  a  convey- 

'Tindall  v.  Conovcr,  1  Spencer  (N.  J.  L.),  214;  11  Am.  Dec.  220,  XORRIS,  J., 
saying:  "Now  I  undertake  to  say  that  in  a  written  contract  for  the  sale  and 
purchase  of  lands  the  phrase  "  a  good  and  sufficient  warranty  deed  "  will  be 
understood  by  more  than  nine-tenths  of  mankind,  not  excepting  the  legal 
profession,  to  mean  a  good  and  sufficient  title.  That  if  a  person  intended  to 
sell  and  another  to  buy,  a  doubtful  or  uncertain  title,  or  anything  less  than 
a  good  and  •  ufficient  legal  title,  in  reducing  their  contract  to  writing,  they 
would  not  use  this  phrase,  but  would  define  the  interest  bargained  for." 
Curtis  Land  Co.  v.  Land  Co.,  137  Wise.  341,  118  N.  W.  853,  129  Am.  St. 
Rep.  106S. 

1  In  our  rural  districts  an>l  among  laymen  the  term  "lawful  deed  carries 
no  other  idea  than  an  unrestricted  conveyance  in  fee,  clear  of  incumhranoM.* 
Eby  v.  Eby,  5  Pa.  St.  466.  In  the  same  way  the  term  "  title  "  is  sometime? 
vulgarly  used  for  "  deed."  Thus  in  Gilchrist  v.  Btiie.  1  Dev.  &  B.  Eq. 
(>T.  C.)  357,  where  the  contract  was  "to  make  a  sufficient  title  as  far  as  this 
claim  extends"  the  court  said:  "The  term  title  in  evidently  nscd  for  deed. 
*  *  *  To  make  a  title,  therefore,  did  not  mean  to  make  out  on*,  but  to 
make  a  deed  and  to  pass  the  title."  In  this  case  it  appeared  that  the  vendors 
contracted  to  sell  and  the  purchaser  expected  to  get  only  such  title  as  the 
vendors  had. 

1  Whitchurst  v.  Boyd,  8  Ala.  375;  Hunter  v.  O'NVHI.  12  Ala.  30.  Here  the 
agreement  was  merely  "to  make  a  deed."  Tarwater  v.  Davis,  7  Ark.  153: 
44  Am.  Dec.  534;  Pate  v.  Mitchell.  23  Ark.  590;  79  Am.  Dec.  114.  Thayer  v. 
White,  3  Cal.  229;  Haynes  r.  White.  55  Cal.  38.  (But  see  Broun  v.  Covil- 
laud,  6  Cal.  566.)  Altendroth  v.  Greenwood,  29  Conn.  356;  Do<ld  v.  Seymour. 
21  Conn.  480;  Shoune  v.  Doane,  39  Fla.  95;  21  So.  807.  Frazier  v.  Bogps,  37 
Fla.  307;  20  So.  Rep.  245;  Home  v.  Rodger*,  113  Ga.  224;  Tyler  v.  Young, 
2  Scam.  (111.)  444;  35  Am.  Deo.  118:  Brown  v.  Canon,  5  Gilm.  (III.)  174; 
Morgan  v.  Smith,  11  HI.  199;  Conway  v.  Ca«e.  22  111.  127;  Lull  r.  Stone, 

••  Ethfngton  v.  Rigg.  173  Ky.  355.  191  S.  W.  98. 


IMPLIED    AXD    EXPRESS    AGREEMENTS    AS    TO    THE    TITLE.       37 

ance  with  covenants  for  title  is  not  a  sufficient  performance  of  a 
contract  of  sale  if  the  title  be  defective,  the  covenants  being  no 
such  valuable  consideration  for  the  purchase  money  as  to  deprive 

37  III.  224;  Thompson  v.  Shoemaker,  68  111.  256.  Clark  v.  Redman,  1  Bl. 
(Ind.)  379;  Warner  v.  Hatfield,  4  Bl.  (Ind.)  392;  Parker  v.  McAllister,  14 
Ind.  12.  Price  v.  Immel,  48  Colo.  163,  109  Pac.  941;  Powell  v.  Huey,  241 
111.  132,  89  N.  E.  299;  Hall  v.  McKee,  147  Ky.  841,  145  S.  W.  1129;  Curtis 
Land  Co.  v.  Land  Co.  137  Wise.  341,  129  Am.  St.  Rep.  1068.  Fitch  v.  Caaey, 
2  Green  (Io.),  300;  Sx:hreck  v.  Pierce,  3  Cl.  (lo.)  360.  In  this  case  the  court 
pertinently  observed:  "The  legal  effect  of  contracts  to  make  title,  or  to 
deliver  a  deed  to  land  under  a  contract  of  purchase,  is  generally  that  the 
vendor  shall  make  a  good  title.  As  a  general  rule  it  makes  but  little 
difference  what  the  precise  terms  of  the  contract  are  — whether  the  vendor 
agrees  to  make  title,  or  a  good  title  —  or  to  make  a  deed,  or  a  warranty  deed 
—  if  it  appears  that  he  is  negotiating  to  sell  at  a  sound  price,  to  be  paid 
or  part  paid  at  the  conveyance.  In  such  cases,  usually  the  vendor,  without 
a  nice  examination  of  words,  is  understood  to  agree  for  a  good  title,  and  the 
vendee  cannot  be  put  off  with  merely  a  good  deed.  This  rule,  however,  does 
not  preclude  those  cases  where  the  vendee  appears  to  be  purchasing  the 
vendor's  title,  such  as  it  may  be."  Bodley  v.  McChord,  4  J.  J.  Marsh.  (Ky.) 
475;  Williams  v.  Potts,  1  J.  J.  Marsh.  (Ky.)  596;  Brown  v.  Starke,  3  Dana 
(Ky.),  318.  Porter  v.  Noyes,  2  Gr.  (Me.)  22;  11  Am.  Dec.  30;  Brown  v. 
Gammen,  14  Me.  276;  Sibley  v.  Spring,  12  Me.  460;  28  Am.  Dec.  191,  the 
court  saying  that  an  agreement  to  sell  and  convey  is  not  performed  by 
tender  of  a  sufficient  deed  in  form  if  there  is  an  incumbrance  on  the  land. 
Swan  v.  Drury,  22  Pick,  (Mass.)  488;  Mead  v.  Fox,  6  Cush.  (Mass.)  202; 
Roberts  v.  Bassett,  105  Mass.  409;  Linton  v.  Allen,  (Mass.)  17  N.  E.  Rep. 
523.  Dwight  v.  Cutler,  3  Mich,  575;  64  Am.  Dec.  105.  Cogan  v.  Cook,  22 
Minn.  137;  Murphin  v.  Scoville,  41  Minn.  262.  Wiggins  v.  McGimpsey,  13 
Sm.  &  M.  (Miss.)  532;  Feemster  v.  May,  13  Sm.  &  M.  (Miss.)  275;  53  Am. 
Dec.  83;  Mobley  v.  Keys,  13  Sm.  &  M.  (Miss.)  677;  Greenwood  v.  Ligon, 
10  Sm.  &  M.  (Miss.)  615;  48  Am.  Dec.  775.  Luckett  v.  Williamson,  31  Mo. 
54  and  37  Mo.  395.  Beech  v.  Steele,  12  N.  H.  88,  dictum;  Little  v.  Paddle- 
ford,  13  N.  H.  167;  Critchett  v.  Cooper,  (N.  H.)  18  Atl.  Rep.  778.  Tindall 
v.  Conover,  1  Zab.  (N.  J.  L. )  654.  In  Tindall  v.  Conover,  1  Spencer 
(X.  J.  L. ),  214;  11  Am.  Dec.  220,  it  was  said  that  the  question  what  was 
meant  by  an  agreement  to  deliver  a  good  and  sufficient  deed  with  covenants 
of  warranty  was  to  be  determined  by  the  terms  of  the  contract  and  by  all 
the  surrounding  circumstances.  Johnson  v.  Smock,  1  N.  J.  L.  106;  Young  v. 
Paul,  10  N.  J.  Eq.  401;  64  Am.  Dec.  456;  Lounsbery  v.  Locander,  25  N.  J. 
Eq.  557.  Gilchrist  v.  Buie,  1  Dev.  &  B.  Eq.  (N.  C.)  347,  dictum;  Lee  v. 
Foard,  1  Jones  Eq.  (N.  C.)  127,  semble.  Pugh  v.  Chasseldine,  11  Ohio,  109; 
37  Am.  Dec.  414.  Thompson  v.  Hawley,  14  Oreg.  199;  Collins  v.  Delashmutt, 
6  Oreg.  51 ;  Sanford  v.  Wheeler,  12  Oreg.  301.  Dearth  v.  Williamson,  2 
S.  &  R.  (Pa.)  498;  7  Am.  Dec.  652,  the  court  saying:  "A  lawful  deed  of  con- 
veyance may  be  fairly  understood  a  deed  conveying  a  lawful  or  good  title. 
Romig  v.  Romig,  2  Rawle  (Pa.),  249;  Colwell  v.  Hamilton,  10  Watts  (Pa.), 
413;  Eby  v.  Eby,  5  Pa.  St.  466;  Wilson  v.  Getty,  57  Pa.  St.  270.  Cunning- 
ham v.  Sharp,  11  Humph.  (Tenn.)  120.  Clute  v.  Robinson,  2  Johns.  (N.  Y.) 


38  MARKETABLE    TITLE    TO    REAL    ESTATE.' 

the  purchaser  of  the  right  to  detain  the  purchase  money  in  case 
of  eviction  by  an  adverse  claimant.1  An  agreement  to  make  a 
"  clear  deed,"  when  the  purchaser  knows  that  the  vendor  has  only 

595,  a  leading  case;  Jones  v.  Gardner,  10  Johns.  (X.  Y.)  266;  Judson  v. 
Wass,  11  Johns.  (N.  Y.)  528;  6  Am.  Dec.  392;  Tucker  v.  Woods,  12  Johns. 
(N.  Y.)  190;  7  Am.  Dec.  305;  Van  Epps  v.  Sohenectady,  12  Johns.  (N.  Y.) 
442;  7  Am.  Dec.  330;  Gastry  v.  Perrin,  16  Johns.  (N.  Y.)  267;  Robb  v. 
Montgomery,  20  Johns.  (N.  Y.)  15;  Carpenter  v.  Bailey,  17  Wend.  (N.  Y.) 
244;  Traver  v.  Halstead,  23  Wend.  (N.  Y.)  66,  the  court  saying:  "It  was 
the  title  to  the  premises  which  the  purchaser  stipulated  for,  not  a  piece  of 
parchment,  good  in  form  but  waste  paper  in  effect  for  the  purpose  of  trans- 
ferring title."  Lawrence  v.  Taylor,  5  Hill  (N.  Y.),  107;  Everaon  v.  Kirtland, 
4  Paige  Ch.  (N.  Y.)  638;  27  Am.  Dec.  91;  McCool  v.  Jacobus,  7  Rob.  (N.  Y.) 
115;  Pomeroy  v.  Drury,  14  Barb.  (N.  Y.)  424;  Hill  v.  Ressegien,  17  Barb. 
(N.  Y.)  164;  Atkins  v.  Bahrett,  19  Barb.  (N.  Y.)  639;  Morange  v.  Morris, 
34  Barb.  (N.  Y.)  211;  Penfield  v.  Clark,  62  Barb.  (N.  Y.)  584;  Fletcher  v. 
Button,  4  Comst.  (N.  Y.)  400;  Story  v.  Conger,  36  N.  Y.  673;  93  Am.  Dec. 
546;  Burwell  v.  Jackson,  9  X.  Y.  536;  Fossume  v.  Requa,  218  N.  Y.  339, 
113  N.  E.  330.  Patterson  v.  Goodrich,  3  Tex.  331;  Vardeman  v.  Lawson, 
17  Tex.  16;  Phillips  v.  Herndon,  78  Tex.  378;  Jones  v.  Phillips,  59  Tex.  610; 
Jones  v.  Huff,  36  Tex.  678.  Stow  v.  Stevens,  7  Vt.  27 ;  29  Am.  Dec.  130,  the 
court  saying  that  it  would  be  trifling  with  the  good  sense  of  the  law  to  hold 
that  a  good  and  sufficient  deed  means  only  a  deed  to  convey  what  title  the 
grantor  had.  Lawrence  v.  Dole,  11  Vt.  549.  In  Joslyn  v.  Taylor,  33  Vt. 
470,  and  Preston  v.  Whitcomb,  11  Vt.  47,  it  was  held,  however,  that  an  agree- 
ment "  to  give  a  good  and  sufficient  warrantee  deed  "  referred  only  to  the 
kind  of  deed  to  be  executed,  and  not  to  the  quality  of  the  title.  In  most 
of  the  States  no  distinction  seems  to  have  been  made  between  an  agreement 
for  a  "  good  and  sufficient  deed"  and  a  "good  and  suflieient  warranty  deed." 
Goddin  v.  Vaughn,  14  Grat.  (Va.)  117;  Christian  v.  Cabell,  22  Grat.  (Va.) 
82.  Xewberry  v.  French,  98  Va.  471;  36  S.  E.  519.  Young  v.  Wright,  14 
144;  65  Am.  Dec.  303;  Falkner  v.  Guild,  10  Wis.  500;  Bateman  v. 
Johnson,  10  Wis.  1;  Davidson  v.  Van  Pelt,  15  Wis.  H41;  Taft  v.  Kesael,  16 
Wis.  273;  Davis  v.  Henderson.  17  Wis.  1(»0;  Ginther  v.  Townsend,  114  M.i. 
\-l-l,  73  Atl.  908.  Moody  v.  Spokane,  etc.,  R.  Co.  5  Wash.  699.  If  the  rule 
established  by  the  foregoing  ca-.es  were  not  the  correct  one  the  vendor,  after 
the  execution  of  the  contract,  might  convey  away  the  land  to  another,  and 
yet,  by  delivering  to  the  purchaser  a  deed  good  and  suHicient  in  form,  escape 
the  consequences  of  a  breach  of  the  contract.  Lull  v.  Stone,  37  111.  224.  A 
contract  to  make  a  "  lawful  deed  of  conveyance  "  means  a  deed  conveying 
a  lawful  or  good  title.  Wilson  v.  Getty,  57  Pa.  St.  266.  A  deed  conveying 
"all  the  right,  title  and  interest"  of  the  vendor  is  not  a  compliance  with 
a  contract  t<>  execute  to  the  purchaser  "a  good  and  sufficient  deed  of  bargain 
and  sale,  free  and  clear  of  all  inctimhrances,  "  if  (he  property  i-  im -umbered. 
I'orchard,  82  Cal.  347.  If  the  purchaser  contract  for  "a  deed 
conveying  ft  d(.ar  title"  he  may  reject  a  warranty  deed  if  there  is  an 
in.-iimbrance  on  the  premises.  Roberts  v.  Bassett,  105  Mass.  409. 

1  Knapp  v.  l^e,  3  Pick.  (Mans.)  450.  disapproving  Lloyd  v.  Jewell,  1  Greenl. 
(Me.)    352;    10  Am.   Dee.  73. 


IMPLIED  AND  EXPRESS  AGREEMENTS  AS  TO  THE  TITLE.   39 

a  life  estate,  is  fully  performed  by  delivery  of  a  deed  conveying 
such  an  estate  as  the  vendor  has.1 

§11.  Agreements  to  convey  by  "  quit  claim."  It  sometimes 
happens  that  the  purchaser  proposes  to  buy,  and  the  vendor  pro- 
poses to  sell,  only  such  title  as  the  vendor  actually  has,  without 
regard  to  the  goodness  or  the  sufficiency  of  that  title.  In  other 
words,  the  purchaser  makes  a  chancing  bargain,  and  presumably  is 
compensated  for  the  risk  he  takes  in  a  diminished  valuation  of  the 
premises.  Therefore,  it  is  very  generally  held  that  if  the  vendor 
contract  only  to  convey  or  "  quit  claim  "  such  interest  as  he  may 
have  in  the  premises,  the  purchaser  is  without  relief  against  him  at 
law  or  in  equity.2  But  while  the  rule  that  the  parties  may  stipulate 
for  the  acceptance  of  the  title,  such  as  it  is,  is  elementary,  an  agree- 
ment to  that  effect  will  not  be  inferred  from  ambiguous  expres- 
sions, or  from  the  purchaser's  knowledge  of  the  existence  of 
objections  to  the  title.  Every  agreement  by  which  the  purchaser 
consents  to  take  a  defective  title  without  recourse  upon  the  vendor 
should  be  expressed  in  clear  and  unambiguous  terms.3  It  seems 

1  Rohr  v.  Kindt,  3  Watts  &  S.  (Pa.)   563;  39  Am.  Dec.  53. 

3  Holland  v.  Rogers,  33  Ark.  251.  Fitch  v.  Willord,  73  111.  92.  Vail  v. 
Nelson,  4  Rand.  (Va.)  124;  Sutton  v.  Sutton,  7  Grat.  (Va.)  204;  56  Am. 
Dec.  109;  Bailey  v.  James,  11  Grat.  (Va.)  468;  62  Am.  Dec.  659.  Boyles  v. 
Bee,  18  W.  Va.  520.  McManus  v.  Btackmar,  47  Minn.  331.  Thompson  v. 
Hawley,  14  Oreg.  199,  12  Pac.  276;  Morgan  v.  Eaton,  59  Fla.  562,  52  So.  305. 
Waldron  v.  Zollikoffer,  3  Iowa,  108,  where  it  is  said  that  the  failure  to  give 
a  full  price  for  property  is  ordinarily  a  strong  circumstance,  but  not  a  con- 
clusive one,  to  show  that  the  parties  contracted  in  view  of  defects,  or  for 
the  actual  value  of  the  thing  sold.  In  Louisiana,  by  statute,  an  express 
exclusion  of  warranty  does  not  destroy  the  purchaser's  right  to  require 
security  against  eviction,  unless  he  bought  with  knowledge  of  the  danger 
of  eviction.  Dufief  v.  Boykin,  9  La.  Ann.  295;  Gautreaux  v.  B"oote,  10  La. 
Ann.  137.  A  purchaser  who  buys  at  a  public  sale  under  an  announcement 
that  only  an  interest  is  to  be  sold,  and  that  if  there  is  no  title  the  pur- 
chaser will  get  none,  is  without  remedy  if  the  title  fails.  Such  an  announce- 
ment dampens  the  sale,  and  the  purchaser  gets  the  property  at  a  reduced 
price  with  a  view  to  speculation,  and  must  be  held  to  his  bargain.  Ellis  v. 
Anderton,  88  N.  Car.  472.  An  agreement  to  convey  "  by  a  good  and 
sufficient  quitclaim  deed,"  and  reciting  that  the  vendor  acquired  title  at  a 
foreclosure  sale,  requires  the  vendor  to  convey  the  entire  estate  in  the  land 
sold.  Arentsen  v.  Moreland,  122  Wise.  167,  99  N.  W.  790,  65  L.  R.  A.  973, 
106  Am.  St.  Rep.  951;  Brink  v.  Mitchell,  135  Wise.  416,  116  1ST.  W.  16. 

3  I  Sugd.  Vend.  (Sth  Am.  ed.)  510,  511  (337)  ;  Rawle  Cov.  (5th  ed.)  §  32. 
By  agreeing  to  accept  a  quitclaim  deed  the  purchaser  does  not  part  with 
his  right  to  require  a  marketable  title,  free  from  incumbrances  and  defects. 
Wallach  v.  Riverside  Bank,  104  1ST.  Y.  Supp.  661,  119  App.  Div.  238. 


40  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

that  the  purchaser's  consent  to  take  a  defective  title  does  not  neces- 
sarily deprive  him  of  the  right  to  require  a  conveyance  with  cove- 
nants for  title,  since  it  may  be  that  the  protection  to  be  afforded 
him  by  those  covenants  is  the  sole  inducement  to  the  consent,  but 
it  has  been  said  by  the  most  eminent  authority  that  if  in  fact  the 
purchaser  consents  to  take  a  defective  title,  relying  for  his  security 
on  the  vendor's  covenants,  the  agreement  of  the  parties  should  be 
particularly  mentioned.1 

As  an  agreement  to  make  a  "  good  and  sufficient  deed  "  relates 
not  merely  to  the  form  of  the  deed,  but  to  the  sufficiency  of  the 
title,2  so  neither  is  an  agreement  to  convey  "  by  quit-claim  deed," 
a  stipulation  merely  as  to  the  form  of  the  deed;  it  is  a  con- 
dition which  requires  the  purchaser  to  take  just  such  title  as  the 
vendor  has.3 

§  12.  Agreement  to  sell  right,  title  and  interest.  An  agreement 
to  sell  all  of  the  vendor's  right,  title  and  interest  in  the  premises, 
is  a  sale  of  such  interest  only  as  the  vendor  may  have,  and  the 
contract  is  fully  performed  on  his  part  by  a  conveyance  of  such 
interest  without  regard  to  the  goodness  or  sufficiency  of  the  title.4 

It  has  been  held,  however,  that  a  vendor  so  contracting  must 
have  some  title  or  some  right,  even  though  it  consist  of  no  more 
than  a  naked  possession ;  otherwise  the  contract  would  be  nudttm 
portion,  and  the  purchaser  might  rescind.6  Whether  he  might 
affirm  the  agreement  and  have  damages  for  a  breach  of  the  con- 
tract is  another  question.  . 

It  has  been  held  that  an  agreement  to  convey  all  the  vendor's 
"  right,  title  and  interest,  with  full  covenant  of  warranty,"  is  not 
satisfied,  except  by  the  conveyance  of  an  indefeasible  estate.' 

§  13.  Express  agreement  to  purchase  subject  to  liens  or 
defects.  If  the  purchaser  expressly  agrees  to  assume  the  pay- 
ment of  an  incumbrance  on  the  purchased  premises,  he  not  only 
cannot  thereafter  object  to  the  title  because  of  the  inciimbrance,** 

H  Suprl.  Vend.   (8th  Am.  ed.)  230  (573). 

*  Ante.  p.  36. 

•McManua  v.  Blackmnr,  47  Minn.  331. 

«  Tweed  v.  Mill*.  L.  R.,  1  C.  P.  39;  Johnston  v.  Mcndenhill.  0  W.  Va.  112; 
Babeork  v.  Wilton,  17  Me.  372;  35  Am.  Dec.  203;  Herrod  v.  Blackburn,  56  Pa. 
St.  103;  94  Am.  I>-c.  49. 

'.Foliu-,,n  T.  Tool,  1  D.ina   (Ky.),  470;  25  Am.  Dec.  162. 

•Lull  r.   Stone,  37   III.   156. 

•»Gillidctt  T.  Haydcn,  102  Kan.  Gift.  171  Par.  617. 


IMPLIED  AND  EXPRESS  AGREEMENTS  AS  TO  THE  TITLE.   41 

but  as  between  himself  and  the  vendor,  he  makes  the  debt  his  own, 
and  assumes  to  protect  the  vendor.1  It  has  been  held,  however, 
that  a  mere  agreement  to  take  "  subject  to  "  an  incumbrance,  does 
not  bind  the  purchaser  to  discharge  the  incumbrance.2 

It  has  also  been  held  that  if  the  purchaser  merely  agreed  to  take 
the  property  subject  to  a  mortgage,  he  might  reject  a  conveyance 
containing  a  provision  that  he  should  assume  the  payment  of  the 
mortgage,  the  effect  of  such  provision  being  to  render  him  person- 
ally liable  for  any  deficiency,  in  case  the  land  should  be  insufficient 
to  satisfy  the  mortgage ;  a  state  of  affairs  often  found  to  exist  after 
a  rapid  decline  of  speculative  values.3 

It  has  been  held  that  if  the  vendor  contract  in  express  terms  to 
convey  a  "  perfect  title  "  to  the  purchaser,  he  will  not  be  absolved 
from  his  obligation  by  a  further  provision  of  the  contract  that  if 
the  purchaser  was  compelled  to  pay  any  lien  on  the  property  the 
amount  so  paid  should  be  deducted  from  the  purchase  money.  It 
was  considered  that  the  provision  in  question  was  solely  for  the 
benefit  of  the  purchaser,  and  that  if  there  was  an  incumbrance  on 
the  property,  he  might  abandon  the  contract  notwithstanding  his 
power  to  apply  the  purchase  money  to  the  incumbrance.4  The 
general  rule,  however,  is  that  the  purchaser  must  apply  the  unpaid 
purchase  money  to  the  satisfaction  of  valid  ineumbrances.5 

When  the  purchaser  binds  himself  to  pay  rent  if  the  title 
fails,  he  cannot,  on  failure  of  the  title,  recover  damages  from  the 
vendor.6 

The  purchaser  may  contract  to  take  a  defective  title,  and  if 
he  does  so  he  cannot  afterwards  complain  that  the  title  is 
defective.  7 

1  See  upon  this  subject  Sheld.  Subrogation  (2d  ed.)   §  85;  Taylor  v.  Preston, 
79  Pa.  St.  436;  Burke  v.  G-ummey,  13  Wright  (Pa.),  518;  Campbell  v.  Shrum, 
3   Watts    (Pa.),    60;    Woodward's   Appeal,    2    Wright    (Pa.),    322;    Moore's 
Appeal,  88  Pa.  St.  450;  32  Am.  Rep.  469;   Taintor  v.  Hemmingway,  18  Hun 
(N.  Y.),  458;   Kruger  v.   Adams,   13  Neb.   100. 

2  Lewis  v.  Day,  53  Iowa,  575,  and  cases  cited. 

3Kohner  v.  Higgins,  42  N.  Y.  Super.  Ct.  4;  Mellon  v.  Webster,  5  Mo.  App. 
449. 

4  Lewis  v.  White,  16  Ohio  St.  444.  This  was  an  action  by  the  vendor 
against  the  purchaser  for  breach  of  the  contract.  The  case  seems  to  be  in 
conflict  with  Devling  v.  Little,  26  Pa.  St.  502. 

s  See  post,  §  245. 

6  Cross  v.  Freeman,  22  Tex.  Civ.  App.  299 ;  54  S.  W.  246. 

7  Strauss  v.  Yeager,  48  Ind.  App.  448,  93  N.  E.  877. 

G 


CHAPTER  IV. 

OF  THE  SUFFICIENCY  OF  THE  CONVEYANCE  TENDERED  BY  THE 

VENDOR 

GENERAL  OBSERVATIONS.     §  14. 

ESSENTIAL  REQUISITES  OF  THE  CONVEYANCE.    §  15. 

Material,  printing,  etc.    §  16. 

Date.    §17. 

Parties.    §  18. 

Words  of  conveyance.    §  19. 

Description  of  the  premises,     g  20. 

Description  of  estate  or  interest  conveyed.    §  21. 

Signature  and  seal.    §  22. 

Attestation  or  acknowledgment.     §  23. 

(a)  Venue  of  the  certificate.    §  24. 

(b)  Name  and  official  designation  of  certifying  officer.     §  25, 

(c)  Name  of  grantor.    §  26. 

(d)  Annexation  of  deed.    §  27. 

(e)  Jurisdiction  of  certifying  officer.     §  28. 

(/)  Personal  acquaintance  with  grantor,    g  29. 

(g)  Fact  of  acknowledgment.     §  30. 

(h)  Privy  examination  of  wife.     §  31. 

(t)  Explanation  of  contents  of  deed.     §  32. 

(A)   Voluntary  act  <>f  >rife.     §  83. 

(0  Wish,  not  to  retract.     %  84. 

(TO)  Reference  to  teal.    §  36. 

(n)  Date  of  certificate.    §  86. 

(o)  Signature  of  officer.    §87. 

(p}  Abbreviation  of  official  designation.     %  88. 

(g)  Seal  of  officer.    §  39. 

(r)  Surplusage  and  clfrirnl  mistaken.     §  40. 

(«)  Amen<l>/«  »t  "f  *•<  itii<>--ii<'.     £  41. 
Reservations,  restrictions  and  conditions.     §  42. 
Waiver  of  objections  to  the  conveyance.     £  43. 

§  14.  GENERAL  OBSERVATIONS.  When  the  vendor  prepares 
his  conveyance  and  tenders  it  to  the  purchaser,  the  latter  may 
reject  it  and  in>i>t  that  tlinv  lia-  IK-CM  a  1> reach  of  the  contract, 
either  (1)  JJecanse  the  conveyance  and  it-  covenants  arc  not  such  as 
he  i-  entitled  to  demand  :  or.  •_'  Because  the  title  is  not  such  as  the 
vendor  has  contracted  to  convey.  A  defective  conveyance,  pre- 
pared and  tendered  by  the  vendor,  would  not  constitute,  strictly 

[41] 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOB.   43 


speaking,  a  defect  in  the  vendor's  title.  But  inasmuch  as 
chaser's  title  would  be  incomplete  without  the  execution  of  a  suffi- 
cient conveyance,  it  has  been  deemed  proper  to  include  that  subject 
in  the  scope  of  this  work. 

In  England  the  purchaser  is  required  to  prepare  and  tender  to 
the  vendor  a  conveyance  to  be  executed  by  him,  and  the  same  rule 
exists  in  some  of  the  American  States  ;  but  the  general  rule  in  those 
States  is  that  the  vendor  shall  prepare  and  deliver  to  the  purchaser 
a  proper  conveyance  of  the  premises.1 

The  conveyance  must,  of  course,  be  sufficient  in  form  to  pass  the 
interest  to  which  the  purchaser  is  entitled  under  the  contract.2  We 
have  already  seen  that  a  conveyance  sufficient  in  form  as  a  mere 
medium  for  transferring  title  cannot  be  held  a  performance  of  a 
contract  to  make  a  "  good  and  sufficient  deed,"  if  the  vendor  has 
not  such  title  as  the  purchaser  may  require.3 

An  agreement  "  to  sell  "  lands  obliges  the  vendor  to  make  a 
proper  conveyance.4  The  conveyance  must  be  witnessed  or 
acknowledged  by  all  the  parties,  and  have  the  necessary  certificates 
attached,  so  that  it  may  be  admitted  to  record  at  once.5 

The  conveyance  must  also  contain  all  the  covenants  to  which  the 
purchaser  is  entitled.6  Too  much  importance  cannot  be  attached  to 
this  requisite,  since  upon  these  depends  his  right  to  relief  in  case  he 
loses  the  estate  after  the  conveyance  has  been  accepted.7  It  has 
been  held  that  the  purchaser  has  no  right  to  inspect  the  deed  pre- 
pared by  the  vendor  before  paying  the  purchase  money  unless  the 
contract  so  provides.8 

1  Post,  §  88. 

4  But  a  conveyance  sufficient  to  pass  all  of  the  vendor's  interest  need  not  follow 
the  language  of  the  contract  and  purport  to  convey  "all  the  right,  title  and  inter- 
est" of  the  vendor.  Brown  v.  Bellows,  4  Pick.  (Mass.)  178. 

3  Ante,  §  10.     Lindeman  v.  Penson,  54  Mont.  46(5,  171  Pac.  271. 

4  Hoffman  v.    Fett,  39'Cal.  109;    Smith  v.  Haynes,  9  Greenl.  (Me.)  128;   Dart 
V.  &  P.  (5th  ed.)  130.     And,  e  converso,  an  agreement  to  "execute  and  deliver  a 
deed"  is  an  agreement  to  sell  the  land.     Martin  v.  Colby,  42  Hun  (N.  Y.),  1. 

5  Tapp  v.  Beverley,  1  Leigh  (Va.),  80;  Botto  v.  Berges,  47  La.  Ann.  959;  17  So. 
Rep.  428. 

6  Post,  §§  67,  68. 

*  Rawle  Cov.  for  Title  (5th  ed.),  §  320;  post,  chap.  27. 
£Papin  v.  Goodrich,  103  111.  86. 
6 


44  MARKETABLE    TITLE    TO    REAL    ESTATE. 

§  15.  ESSENTIAL,  BEQUISTTES  OF  THE  CONVEYANCE.  The 
principal  points  to  which  the  attention  of  the  purchaser  is  to  be 
directed  in  determining  the  sufficiency  of  the  conveyance  tendered 
to  him  by  the  vendor  are  :  That  it  be  written  or  printed  upon  paper, 
parchment  or  other  equally  convenient  or  substantial  material ;  that 
there  be  one  or  more  correctly  designated  grantors  and  grantees; 
that  the  grantors  are  competent  to  convey,  and,  when  they  act  in  an 
official  capacity,  have  employed  all  necessary  formalities  in  the  exe- 
cution of  the  deed  ;  that  proper  and  necessary  words  of  conveyance 
have  been  employed ;  that  the  granted  premises  have  been  accu- 
rately and  properly  described,  and,  in  some  of  the  States,  tliat  the 
conveyance  be  under  seal,  attested  by  subscribing  witnesses  and 
acknowledged  before  some  officer  competent  to  take  and  certify 
acknowledgments.  The  foregoing  essential  requisites  of  a  convey- 
ance, as  between  vendor  and  purchaser,  are  further  considered  in 
the  following  pages.  It  should  be  observed  here,  however,  that  a 
deed  may  be  sufficient  to  support  a  title  in  ejectment,  and  yet  not 
such  a  conveyance  as  the  purchaser  may  require.  For  example,  in 
those  States  in  which  the  common  law  prevails,  a  deed  without  a 
signature,  as  has  l>een  already  observed,  is  valid.  But  it  is  appre- 
hended that  no  purchaser  could  be  compelled  to  accept  such  an 
instrument  as  a  sufficient  deed;  for  if  he  should  offer  to  resell  the 
premises,  the  w-ant  of  a  signature  to  the  deed  under  which  he  holds 
would,  l>eyond  question,  be  made  the  ground  of  objection  to  his 
title.  And  while  the  objection  might,  after  litigation,  be  adjudged 
untenable,  he  should  not  be  required  to  accept  a  conveyance  so 
irregular  in  form  as  to  render  his  title  unsatisfactory  to  a  purchaser. 
So,  also,  where  the  description  is  so  vague  and  uncertain  as  to  make 
necessary  a  resort  to  parol  evidence  to  identify  the  premises.  And, 
generally,  it  may  l>e  said  that  the  purchaser  may  reject  the  convey- 
ance whenever  its  sufficiency  is  in  any  degree  a  matter  of  legal 
doubt,  upon  the  same  principle  which  permits  him  to  reject  a  title 
concerning  which  there  is  a  reasonable  doubt.1  No  hardship  can 
result  to  the  vendor  from  these  requirements,  since  he  may  always 
remove  the  objection  at  a  trilling  expense. 

The  vendor  has  a  right  to  prepare  and  tender,  and  the  purchaser 
is  bound  to  accept,  a  conveyance  correcting  errors  or  misdescriptions 

1  Post.  rhnp.  81. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   45 

contained  in  a  former  conveyance.  If  the  vendor  be  dead,  his  heirs, 
or  a  commissioner  of  the  court,  should  make  and  tender  the 
amended  conveyance.1  By  consent  of  parties,  a  deed  defectively 
executed  may  be  corrected  by  interlineations,  reacknowledged  and 
recorded  anew,  and  may  be  presumed  to  be  redelivered  as  of  the 
new  date,  so  as  to  take  effect  therefrom.2  In  some  of  the  States  a 
deed  of  bargain  and  sale  must  be  supported  by  a  valuable  considera- 
tion, pecuniary  or  otherwise.3  Wherever  this  rule  exists,  the  pur- 
chaser should  see  that  the  consideration  is  expressed  in  the  deed 
which  is  tendered  to  him  by  the  vendor.  It  is  true  that  the  exist- 
ence of  the  consideration,  if  not  recited  in  the  deed,  may  be  shown 
by  evidence  aliunde  y4  but  the  conveyance  which  the  purchaser  is 
to  receive  should,  if  possible,  afford  no  occasion  for  a  query  as  to  its 
sufficiency,  if  he  should  desire  to  resell  the  estate. 

§  10.  Material,  printing,  erasures,  etc.  Deeds  have  always 
been  written  or  printed  upon  paper  or  parchment,  and  the  extreme 
improbability  of  a  departure  from  this  custom  makes  the  question 
of  the  validity  of  a  deed  written  or  engraved  upon  other  materials 
practically  unimportant.  If,  however,  a  deed  should  be  written  or 
printed  upon  some  material  similar  to  and  forming  a  convenient  sub- 
stitute for  paper  or  parchment,  it  is  apprehended  that  a  purchaser 
could  not  decline  to  receive  it.  A  deed  engraved,  written  or  printed 
upon  stone,  metal,  wood  or  other  bulky  and  inconvenient  material 
might  perhaps  be  received  as  evidence  of  title  in  ejectment.5  But 
there  can  be  no  doubt  that  a  purchaser  would  be  justified  in  rejecting 
such  an  instrument  if  tendered  by  the  vendor.  Deeds  are  usually 
written  with  ink,  but  they  are  not  liable  to  objection  because  wholly 
or  partly  in  print.  Even  the  signature  of  a  deed  may,  it  is  appre- 
hended, be  in  print,  all  danger  of  fraud  being  removed  by  the 
acknowledgment  of  the  deed  before  attesting  witnesses  or  a  certifying 
officer.6  For  the  same  reason  it  is  apprehended  that  a  deed  written 

1  Leslie  v.  Blusher,  15  lad.  166;  Rush  v.  Truby,  11  Ind.  462. 
*  Fitz patrick  v.  Fitzpatrick,  6  R.  I.  64;  75  Am.  Dec.  681. 
»-8  Washb.  Real  Prop.  368  (613). 
<Id. 

5  In  2  Bouvier's  Inst.  389,  it  is  said  that  an  instrument  written  or  printed  on 
"  wood,  linen,  bark,  stone,  or  the  like,"  would  be  invalid  as  a  deed. 

6  Such  a  signature  has  been  held  a  sufficient  compliance  with  the  Statute  of 
Frauds.     Browne  Stat.  Frauds,  §  356  (4th  ed.),  p.  441;  Devlin  on  Deeds,  §  135, 


46  MARKETABLE    TITLE    TO    REAL    ESTATE. 

with  a  lead  pencil  would  be  held  valid.1  But  it  may  be  doubted 
whether  a  purchaser  might  not  lawfully  refuse  to  accept  a  deed  so 
written,  and  insist  upon  one  prepared  in  the  usual  manner. 

A  contract  to  convey  by  good  and  sufficient  deed  obliges  the 
vendor  to  tender  a  deed  so  drawn  and  executed  as  to  leave  no 
reasonable  doubt  of  its  legal  sufficiency  to  convey  the  land.  It 
must  be  free  from  all  such  interlineations  and  erasures  as  are 
reasonably  calculated  to  throw  doubt  upon  the  paper  as  a  valid 
conveyance.2 

§  17.  Date.  Regularly,  a  deed  should  be  dated,  but  the  fact  that 
it  has  no  date,  or  has  an  impossible  date,  will  not  render  it  void. 
The  true  date  may  be  shown.1  A  deed  being  an  executed  contract, 
it  is  immaterial  that  it  bears  date  on  a  Sunday;  the  parties  being 
in  pari  deliclo,  the  courts  will  not,  interfere  to  declare  the  instru- 
ment void,  as  it  sometimes  does  where  the  contract  is  executory.4 
The  date  may  be  inserted  either  at  the  beginning  of  the  deed,  or  at 
the  close,  in  the  tcstimonium  clause;  that  in  the  testimonhtm  clause 
is  to  be  treated  as  the  true  date,  if  it  be  later  than  the  one  expressed 
at  the  beginning  of  the  deed.5  Inasmuch  as  it  is  usual  ami  cus- 
tomary to  insert  a  date  in  conveyances  of  real  estate,  and  tho  want 
of  it  may  be  easily  supplied,  the  purchaser  should  require  that  the 
instrument  tendered  shall  be  complete  in  this  particular. 

§  18.  Parties  to  the  conveyance.  It  seems  unnecessary  to  say 
that  every  deed  must  contain  the  names  or  description  of  parties 
grantor  and  grantee.8  Yet  instances  exist  in  which  instruments, 
from  which  the  name  of  the  grantee,  through  carelessness  or  inatten- 

and  oases  there  eited.  But  where  a  statute  required  tlie  memorandum  to  be 
"subscribed"  by  the  party  to  be  bound,  it  was  held  that  a  printed  signature 
was  inMiflieicnt.  Vielle  v.  Osgood,  8  Barb.  (N.  Y.)  130;  Dnvis  v.  Shields,  26 
Wend.  (N.  Y.)  351. 

1  Contracts  for  the  wile  of  land  written  in  l«';id  pcneil  are  valid.  Clason  v. 
Bailey.  14  .bilm-.  i  N.  Y.)  484.  So  also,  a  will  or  eodicil  to  a  will.  Raymes  v. 
Clark-.nl.  1  Phillim.  22. 

'Shoiisc  v.   Doaiic,  39  Fla.  95;  21  So.  807. 

'.Taekson  v.  Schoonmaker.  2  Johns.  (N.  Y.)  230.  The  date  is  no  part  of  the 
Mil.-tanc -c  of  n  deed,  and  not  necessary  to  be  in-n  tr.l.  The  real  date  of  a  deed 
is  the  time  of  it-  d.-li\ery.  Thompson  v.  Thompson,  9  Ind.  323;  08  Am.  Dec. 
638.  It  is  no  object  inn  in  a  deed  that  if  hear*  date  prior  to  the  vendor's 
acquisition  of  title.  Bled>oe  v.  Doe,  4  How.  (Miss.)  13. 

*Sec  ca-e-  riled  24  Am.  &   1'iiL'.    Knrye.  of  L.  ."«.Y 

» Kurtz  v.  HollinH.-.l.   »   Cram-h  C.  C.    (tJ.  8.] 

•Chase  v.  Palmer.  2!>  111.  .W, :  \Vhittaker  v.  Miller.  S.I  III.  381.    In  both  t 
CEM«  the  deed  had    IM-.-M   .-\.c-nti  <l    in   blank,  and   the   nalne  of  a  grantee  after- 
wards in-ertcd  by  a  third  person,    fiarnett  v.  Cainett.  7  T.  B.  Mr.n.   (Ky.)  545. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   47 

tior»,  has  been  omitted,  have  been  tendered  to  and  accepted  by  the 
purchaser.  The  parties  should  be  correctly  described  by  their  Chris- 
tian names  as  well  as  surnames.  And  while  an  incorrect  or  imperfect 
description  of  the  grantee  does  not  destroy  the  validity  of  a  deed 
as  a  muniment  of  title,  there  can  scarcely  be  any  doubt  that  a  pur- 
chaser would  not  be  required  to  accept  such  a  conveyance.1  There 
must  not  only  be  a  grantee  in  every  deed,  but  such  grantee  must 
be  a  person  or  corporation  who  can  take  and  hold  the  premises. 
Deeds  have  sometimes  been  held  void  because  of  uncertainty  or 
vagueness  in  the  description  of  the  grantee.2  Thus,  a  grant  to  the 
people  of  a  county  is  void  for  uncertainty.3  But  it  is  not  necessary 
that  a  grant  to  a  person  shall  describe  him  by  name,  if  he  be  other- 
wise so  described  that  he  may  be  identified.4  Hence,  a  grant  to  the 
"  children  of  A.*'  is  valid.5  So,  also,  a  deed  "  to  the  heirs  at  law  of 
a  deceased  person."6  But  a  deed  to  "  A.  and  his  heirs,"  A.  being 
dead  at  the  time  of  the  grant,  is  void.  In  such  a  case,  the  words 
"his  heirs"  are  words  of  limitation  and  not  words  of  purchase.7 
The  grantee,  unless  such  by  way  of  remainder,  must,  of  course,  be 
in  existence  at  the  time  of  the  grant.8  It  has  been  held  that  a  con- 
veyance to  a  fictitious  person  is  void.9  It  is  not  absolutely  indis- 
pensable that  the  name  of  the  grantee  shall  be  set  forth  in  the  grant- 
ing clause  of  the  deed ;  if  his  name  appear  in  the  habendum,  it  will 
suffice.10  Xor  will  a  deed  be  avoided  by  the  fact  that  the  grantor's 

1  Thus,  in  Peabody  v.  Brown,  10  Gray  ( Mass.) ,  45,  a  deed  to  "Hiram  Cowing" 
was  held  valid  as  a  conveyance  to  "Hiram  G.  Gowing,''  though  there  was  such 
a  person  as  "  Hiram  Gowing,"  he  being  the  son  of  the  person  intended  as  grantee. 
And  many  cases   may  be   found   in  which   incorrect,   uncertain  and  doubful 
descriptions  of  the  grantee  have  been  aided  by  parol  evidence,  and  the  descrip- 
tion held  sufficient,  according  to  the  maxim  id  cerium  est  quod  reddi  potcst. 
But  obviously  this  doctrine  has  no  application  to  a  case  in  which  the  purchaser 
stands  insisting  that  the  vendor  shall  tender  a  deed  free  from  misdescription. 

2  Jackson  v.  Cory,  8  Johns.   (X.  Y. )  385.    So,  also,  a  deed  to  the  "  estate ''  of 
a  certain  person  deceased.    Mclnerny  v.  Beck,  10  \Yash.  515;  39  Pac.  Rep.  130. 

3  Jackson  v.  Cory,  8  Johns.   (N.  Y.)   385;  Hornbeck  v.  Westbrook,  9  Johns. 
(X.  Y.)    73. 

4  1  Devlin  on  Deeds,  §   184. 

5  Hogg  v.  Odom,  Dudley,   (Ga.)    185. 

6  Shaw  v.  Loud,   12   Mass.  447. 

7  Hunter  v.  Watson,  12  Cal.  363:    73  Am.  Dec.  543. 

sXe\vsom  v.  Thompson,  2  Ired.  (X.  C.)  L.  277;  Lillard  v.  Ruckers,  6  Yerg. 
(Tenn.)  64. 

9Muskin«nim  Val.  Turnpike  v.  Ward,  13  Ohio,  120.  But  see  Thomas  v. 
Wyatt.  31  Mo.  188;  77  Am.  Dec.  640. 

"Berry  v.  Billings,  44  Me.  416;   69  Am.  Dec.  107. 


48  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

name  does  not  appear  in  the  granting  clause,  if  it  can  be  supplied 
from  the  rest  of  the  instrument.1  The  full  names  of  the  parties 
should  be  correctly  set  forth  in  tin-  c.im  vance.  But  the  omission 
of  a  middle  name  will  not  invalidate  the  deed.-  Xor  will  a  differ- 
ence in  the  spelling  of  the  name  of  the  grantor,  as  recited  in  the 
deed  and  as  signed  thereto,  be  material,  if  it  can  be  shown  that  they 
are  one  and  the  same  person,3  and  it  has  been  held  that  a  convey- 
ance to  a  per.-»n  by  a  wrung  bapti-mal  or  Christian  name  is  not  for 
that  reason  void.4  But,  of  cour-e.  ;1  purchaser  should  reject  a  deed 
containing  such  an  irregularity.  The  burden  <>f  removing  or  explain- 
ing apparent  or  seeming  defects  should  not  be  imposed  upon  him. 

Where  the  purchaser  i-  a  partnership,  the  conveyance  must  be 
made  to  the  individual  partners  joint  ly  as  tenants  in  common,  and 
the  partnership  may  reject  a  deed  in  which  the  grantee  is  the  firm 
itself,  e,  f).,  a  deed  to  A.  B.  &  Co.8  A  conveyance  to  A.  B.  &  Co. 
passes  the  legal  title  to  A.  B.  alone.'  A  deed  made  by  "A.  B., 
Kxecutor,"  without  specifying  the  estate  of  the  testator,  and  signed 
by  the  executor  in  the  same  way,  is  suilicient  as  a  deed  executed  by 
him  in  a  representative  and  not  in  bis  individual  capacity.7 

The  purchaser  is  also  entitled  to  require  a  conveyance  fnnn  the 
person  appearing  of  record  to  be  the  owner,  though  he  be  in  fact  the 
mere  nominal  owner.8  A  contract  by  several  to  convey  with  war- 
ranty is  not  performed  by  tendering  a  conveyance  -i^ne-l  only  by 
one  of  the  vendors,  and  the  purchaser  may  reject  such  a  conveyance. 
He  has  &  right  to  have  the  warranties  of  all  tho-e  with  whom  lie 

'Mards  v.  Meyers.    (Tex.)    28  S.  W.  Rep.  693. 

"McDonald  v.  Morgan.  27  T.\.  BM]  .lan-e-  v.  Stile-.  14  IVt.  (f.  S.  (  322. 
A  vanance  in  tlio  middle  initial  letter  of  tin-  name  of  the  «rnntor,  as  written 
in  tli<-  signature  nml  in  the  body  of  the  deed,  will  not  moid  the  deed. 
Erskine  v.  KM*  •_».-.  III.  •>:,}. 

•Lyon  v.  Kain.  :<ol  111.  302 :  Tu-tin  v.  Taught.  23  Cal.  237;  Middleton  v. 
Findla.  2.1  Cal.  70. 

.  low.    12   VYi-. 

•1  Washb.  Heal    IVoj..  173;    M.  Murray   v.    Klcteh.  r.  24   Kan-.  :>:t. 

•Arthur   v.  \\.-tmi.  22    M".    :t7S:    p.,-:mnian   v.   Whitney.  20   Me.   41:5. 

:|:.il.<-.,,k  v.  Collins.    (Minn.)    <H    \.  \V.   !:••]..    1 

'Walt.-p  v.   |)e  Ci.iaf.   !!'  AM).   N.  C.    '  N.  V.)    -»<IC..      In  thi>  ease  the  apparent 

owner  contracted   to  </\:v  a  warranty  d 1  with   full   inv.-n.uit-.      The  <-onv.-\ 

ance  under  whirh  the  apparent   nwner  heM   wa«  nbvilute  in   form,  but  in  fact 
a  nil  He  recim vexed  to  the  iiK'i  1'_-:iL'nr.  and  a   warranty  d<-<-d   from  the 

r    \\.i-    tendereil    to  the    purelui-tT.      It    was   held    that    the   piirdiatii  i 
entitled   t<>  the  In-nelit   of  the  eovrnaiit <  of  the   :i]«|tarent   owner,  and    that   tl.  • 
deed   ten-len-d    w.i-   in-iitVicient. 


.SUFFICIENCY    OF   CONVEYANCE    TENDERED   BY   THE   VENDOR.       49 

contracted.1  It  has  been  held  that  a  contract  to  make  a  good  and 
sufficient  deed,  entered  into  by  a  vendor  having  no  title,  would  be 
satisfied  by  a  tender  of  a  conveyance  from  the  real  owner.2  It 
would  seem,  however,  that  if  the  contract  entitled  the  purchaser 
to  covenants  of  warranty,  the  vendor  should  be  required  to  join 
in  the  conveyance  so  tendered. 

In  every  case  in  which  the  purchaser  is  entitled  to  demand 
a  conveyance  with  covenants  for  title  by  the  vendor,  the  duty 
devolves  on  the  vendor  to  make  and  deliver  his  own  deed,  and  the 
purchaser  may  reject  the  deed  of  a  third  person.  He  is  entitled 
to  the  covenants  of  his  vendor.3 

But  a  deed  from  a  third  party  is  a  substantial  compliance  with  a 
covenant  to  convey,  unless  the  purchaser  is  entitled  to  covenants  of 
warranty  from  the  vendor.*  Such  a  deed,  however,  not  being 
within  the  terms  of  the  contract  of  sale,  the  burden  devolves  on 

1  Lawrence  v.  Parker,  1  Mass,  191;  2  Am.  Dec.  10;  Clark  v.  Redman,  1 
Blackf.  (Ind.)  379. 

3  Bateman  v.  Johnson,  10  Wis.  1. 

3  Steiner  v.  Zwickey,  41  Minn.  448;  43  N".  W.  Rep.  376;  Crabtree  v.  Levings, 
53  111.  526;  Yeates  v.  Prior,  11  Ark.  76;  Taylor  v.  Porter,  1  Dana  (Ky.)  422; 
25  Am.  Dec.  165;  Royal  v.  Dennison,  (Cal.)  38  Pac.  Rep.  39;  George  v. 
Conhaim,  38  Minn.  338;  37  X.  W.  Rep.  391;  McNamara  v.  Pengilly,  64  Minn. 
543;  59  N.  W.  1055;  Meyers  v.  Markham,  90  Minn.  230;  96  N.  W.  787; 
Miner  v.  Hilton,  44  N.  Y.  Supp.  155;  15  App.  Div.  55.  Rudd  v.  Savelli,  44 
Ark.  145;  Buswell  v.  Kerr.  Co.,  112  Minn.  388,  128  N.  W.  459;  Wolford  v. 
Jackson,  123  Va.  280,  96  S.  E.  237;  Gottschalk  v.  Meissenheimer,  62  Wash. 
299,  113  Pac.  765;  Armstrong  v.  Palmer  (Tex.  Civ.  App.)  218  S.  W.  627; 
McVeety  v.  Merc.  Co.,  24  X.  D.  245,  139  N.  W.  586,  Ann.  Cas.  1915  B,  1028; 
Geo.  H.  Paul  Co.  v.  Shaw,  86  Kan.  136,  37  L.  R.  A.  (N.  S.)  1123;  Chicago 
Title  Co.  v.  MacDonald,  192  111.  App.  132.  Compare  Thos.  J.  Baird  Co.  v. 
Harris,  209  Fed.  291,  126  C.  C.  A.  217.  The  purchaser  cannot  be  required  to 
accept  a  deed  from  his  vendor's  vendor,  with  his  ( the  purchaser's )  name  filled 
in  as  grantee  by  his  vendor.  Brugman  v.  Charleson,  (X.  D.)  171  N.  W.  882. 
The  rule  that  the  purchaser  is  entitled  to  the  covenants  of  his  vendor  is 
satisfied  by  a  conveyance  from  the  vendor  to  a  stranger  with  warranty,  fol- 
lowed by  a  conveyance  from  the  stranger  to  the  purchaser  with  warranty. 
Big  Bend  Land  Co.  v.  Hutchings,  71  Wash.  345,  128  Pac.  652. 

4Bigler  v.  Morgan,  77  N.  Y.  312;  Robb  v.  Montgomery,  20  Johns.  (N.  Y.) 
15.  Kister  v.  Pollak,  109  N.  Y.  Supp.  204;  125  App.  Div.  226.  The  vendee 
cannot  be  required  to  accept  a  deed  from  a  third  person  to  whom  the  vendor 
conveyed,  without  proof  that  no  dower  interest,  nor  tax,  nor  assessment  lien 
had  attached  since  such  conveyance.  Bensinger  v.  Erhardt,  77  N.  Y.  Supp. 
577;  74  App.  Div.  169. 

7 


50  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

the  vendor  to  show  that  the  purchaser  accepted  the  same  in  full 
performance  of  the  agreement.1 

There  would  seem  to  be  no  reason  why  the  purchaser  should 
not  be  required  to  accept  the  conveyance,  if  those  who  would  be 
entitled  to  the  estate,  in  case  of  the  failure  of  the  title  of  the 
vendor,  join  with  the  vendor  in  the  conveyance.2 

The  purchaser  should  not  only  see  that  the  parties  to  the  convey- 
ance are  properly  named,  designated  or  described,  but  he  should 
insist  upon  the  execution  of  the  conveyance  by  all  parties  whose 
concurrence  in  the  deed  is  necessary  to  perfect  the  title.  If  the 
deed  be  that  of  the  husband,  he  should  see  that  the  wife  joins,  and 
rice  versa.  If  the  conveyance  be  by  one  who  has  an  equitable 
estate  only,  as  frequently  happens,  he  should  insist  that  the  party 
having  the  legal  title  shall  join  as  a  party  grantor.  Regularly,  the 
names  of  all  parties  executing  the  deed  should  be  set  out  therein, 
but  it  sometimes  happens  that  a  deed  poll  is  executed  by  a  person 
not  mentioned  as  one  of  the  grantors.  Whether  the  deed  will  be 
operative  as  to  such  person,  it  is  unnecessary  to  consider  here ;  it 
suffices  to  say  that  the  purchaser  should  reject  such  an  irregular 
instrument,  and  require  the  name  to  be  inserted  in  the  proper 
place.  If  the  conveyance  is  made  in  an  official  or  representative 
capacity,  that  fact  should  appear  in  the  description  of  the  grantor; 
it  is  insufficient  that  the  deed  be  signed  by  the  party  in  the  capacity 
in  which  he  acts.8 

It  is  a  general  rule  that  the  purchaser  cannot  be  compelled  to 
accept  a  conveyance  executed  by  an  attorney  in  pursuance  of  a 
power,  unless  an  actual  necessity  for  the  execution  of  the  convey- 
ance in  that  form  appears.4  There  has  been  some  conflict  of 
opinion  as  to  the  validity  of  a  deed  purporting  on  its  face  to  be  the 
act  of  a  principal,  but  executed  and  signed  by  an  attorney  in  fact 
in  his  individual  capacity,  that  is,  without  the  name  of  the 
principal  or  the  addition  of  words  after  the  signature  of  the 
attorney  to  show  that  the  deed  is  not  his  individual  act,  but  the 

1  Slocum  v.  Bray,  55  Minn.  249;  50  N.  W.  Rep.  826. 
'Elkin*  v.  Thompson.  155  Ky.  01.  150  S.  W.  617. 
'Bohb  v.  Bnrnum,  50  Mo.  304. 
•2  Sugd.  Vend.   (8th  Am.  ed.)   214    (563). 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   51 

act  of  the  principal.  It  is  deemed  unnecessary  to  discuss  this 
question  here,  or  to  refer  to  the  decisions  either  way  upon  the 
points.1  It  suffices  to  say  that  the  purchaser  should  insist  that 
the  recitals  in  the  body  of  the  deed  shall  show  that  it  is  the  act 
of  the  principal,  and  that  the  deed  shall  be  signed  as  well  with 
the  name  of  the  principal  as  with  that  of  the  attorney,  thus, 
"  John  Smith  by  his  attorney  in  fact,  William  Brown." 

The  purchaser  should  also  be  careful  to  see  that  the  deed  is  exe- 
cuted by  a  person  having  power  and  authority  to  convey.  If  the 
grantor  be  an  executor,  administrator,  trustee,  attorney  in  fact, 
public  official,  officer  of  a  court,  officer  of  a  corporation,  or,  indeed, 
any  person  acting  en  auter  droit,  the  nature  and  extent  of  his 
powers  should  be  examined,  and  the  observance  of  all  required 
formalities  exacted.2  Particular  attention  should  be  paid  to  con- 
veyances of  corporate  property,  and  all  statutory  or  charter  pro- 
visions as  to  the  authority  of  the  officers  to  convey,  and  as  to  the 
mode  of  conveyance,  should  be  literally  and  rigidly  followed.  A 
conveyance  of  firm  property  should  be  signed  by  all  the  partners. 
One  partner  has  no  right  to  execute  a  deed  in  the  name  of  the 
partnership  unless  the  other  partners  are  standing  by  and  give 
their  consent  or  confer  power  upon  him  by  an  instrument  under 
seal.3 

1  The  cases  will  be  found  collected  in  1  Devlin  on  Deeds,  §  377,  et  seq. 

2  A  power  of  attorney  to  convey  land  must  be  under  seal.     Plummer  v. 
Russell,  2  Bibb   (Ky.),  174.     A  misrecital  of  a  valid  power  of  attorney  in  a 
deed,  executed  in  pursuance  thereof,  is  no  objection  to  the  validity  of  the 
deed.     Jones  v.  Tarver,  19  Ga.  279.    A  deed  executed  by  an  attorney  in  fact, 
with  provisions  in  excess  of  his  authority,  will  be  void  as  to  such  provisions, 
but  valid  in  other  respects.     Gimell  v.  Adams,  11  Humph.    (Tenn.)    283.     A 
deed  with  blanks  filled  by  an  agent  in  the  absence  of  the  grantor,  but  with 
verbal  authority  from  him,  is  void.     Ingram  v.  Little,  14  Ga.  173;   58  Am. 
Dec.  ;149.     If  the  deed  is  made  in  pursuance  of  a  judicial  sale,  the  purchaser 
should  see  that  the  sale  has  been  confirmed.     Fraser  v.  Prather,  1  McArth. 
(D.  C.)    206;   2  Dan.  Ch.  Pr.  1454.     A  commissioner  acting  under  a  decree 
of  court  can  convey  no  more  than  he  is  authorized  by  the  decree  to  convey. 
Xeel  v.  Hughes,  10  Gill  &  J.   (Md.)   7.    A  conveyance  by  a  corporation  must 
be  executed  in  the  corporate  name  and  under  the  corporate  seal.     Hatch  v. 
Barr,  1  Ohio,  390.     It  is  not  necessary  that  the  deed  of  a  corporation  shall 
recite  the  vote  authorizing  the  execution  of  the  deed.     McDaniels  v.  Flower 
Brook  Mfg.  Co.,  22  Vt.  274. 

'  Story  on  Partnership,  §  120. 


52  MAKKETABLE    TITLE    TO    KEAL    ESTATE. 

If  the  purchaser  be  entitled,  under  the  contract,  to  call  for  a 
c.  nveyance  of  a  clear  and  unincumbered  title,  he  may  reject  a  con- 
veyance which  does  not  contain  a  relinquishment  of  any  con- 
tingent right  of  dower  existing  in  the  premises.1 

Where  several  vendors  join  in  the  contract  of  sale,  by  which 
they  are  required  to  convey  with  warranty,  the  purchaser  is 
entitled  to  have  their  joint  conveyance  with  warranty,  and 
separate  conveyances  tendered  by  each  are  insufficient.2 

§  19.  Words  of  conveyance.  The  granting  clause  of  a  deed 
requires  the  careful  attention  of  the  purchaser.  Of  course  the  use 
of  a  form  prescribed  by  statute  will  be  sufficient,  but  the  purchaser 
should  see  that  the  deed  contains  the  operative  words  of  conveyance 
found  in  the  form  or  their  equivalents.  Such  forms  are  usually 
brief,  being  intended  to  furnish  a  simple  and  convenient  mode  of 
conveyance,  but  it  is  generally  provided  that  they  shall  not  invali- 
date a  deed  in  the  "  common  law  "  or  lengthy  form.  Where,  how- 
ever, by  statute  or  common  law,  certain  technical  words  are  made 
necessary  in  a  conveyance,  equivalents  will  not  answer.3  Thus,  in 
some  of  the  States,  the  words  "grant,  bargain  and  sell"  are  by 
statute  made  to  imply  certain  covenants  for  title,  and  in  other-  the 
common-law  rule  that  the  word  "heirs"  is  necessary  in  the 
creation  of  an  estate  of  inheritance  still  exi>t>.  Wherever  this 
is  the  case,  the  purchaser  should  see  that  those  preci-e  words  are 
employed  and  should  reject  a  deed  which  does  not  contain  them. 
Where  the  statutory  form  of  conveyance  is  not  employed,  attention 
should  be  given  to  the  operative  words  of  conveyance  in  the  deed. 
A  paper  containing  no  words  of  conveyance  can  ever  operate  a- 
a  deed,4  and  yet  instruments  amounting  to  nothing  more  than 
itory  contracts  for  the  sale  of  lands  have  been  tendered  and 
i. ted  as  conveyances  by  persons  acting  without  competent 

1  Polk  v.  Sumter,  2  Strohh.  L.  (S.  Car.)  81;  Jones  v.  Gardner,  10  Johns. 
(X.  Y.)  266. 

'Lane  v.  Ziemar,  (Ind.  App.)  98  X.  K.  741;  Rajrol  v.  Dedman,  ",0  Intl. 
App.  350,  98  X.  E.  307. 

•1   \Vn«h.   Rriil   Prop.  m.   p.  56    (3d  ed.)    671. 

4  \\m\\n  v.  Mnnter.  21  X.  H.  52S-.  ~>3  Am.  Dfr.  223.  An  instrument  under 
seal  acknowledging  receipt  of  the  consideration  f«r  tin-  sale  of  real  estate,  hut 
containing  no  words  of  conveyance,  passes  no  title.  Picn-on  v.  Doe.  2  Ind.  123. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   53 

advice.  An  instrument  in  which  the  only  words  of  grant  are 
"  sell  "  or  "  sign  over,"  1  cannot  take  effect  as  a  deed.  ]STo  estate 
can  pass  by  deed  unless  it  is  plainly  embraced  within  the  words 
of  grant.2  But  a  deed  without  sufficient  words  of  conveyance  in 
the  granting  clause  will  pass  a  fee  if  words  sufficient  for  that 
purpose  appear  in  other  parts  of  the  deed.3 

§  20.  Description  of  the  premises.  A  vast  number  of  cases  in 
which  deeds  have  been  held  inoperative  for  want  of  a  sufficient 
description  of  the  premises  may  be  found  in  the  reports.  The 
^general  rule  is  that  a  description  from  which  it  is  possible  to  ascer- 
tain and  identify  the  land  intended  to  be  conveyed  is  sufficient.4 
We  need  not  inquire  here  whether  parol  evidence  will  be  received 
in  aid  of  an  unintelligible  description.  The  purchaser  may  avoid 
trouble  of  that  kind  by  insisting  upon  a  full  and  accurate  descrip- 
tion of  the  premises.  It  is  simply  a  matter  to  which  his  attention 
should  be  particularly  drawn.  The  deed  should  set  out  the  names 
of  the  State  and  county  in  which  the  land  lies,  and  also  the  range, 
township,  section  and  quarter  section  of  which  it  forms  a  part,5 
where  those  subdvisions  are  in  use,  the  name  of  the  nearest  town, 
village  or  other  public  place  in  the  county,  and  the  direction 
therefrom  in  which  the  land  lies;  then  follow  metes  and  bounds, 

1McKenney  v.-  Settles,  31  Mo.  541.  But  see  Hutchins  v.  Carleton,  19  N".  H. 
487,  where  the  words  "  assign  and  make  over  "  were  held  to  pass  a  fee,  and 
Fash  v.  Blake,  38  111.  363,  where  a  similar  decision  was  rendered.  The  words 
"to  go  to"  are  sufficient  as  words  of  grant  (Folk  v.  Varn,  9  Rich.  [S.  C.] 
Eq.  303),  so,  also,  the  word  "  convey"  (Patterson  v.  Carneal,  3  A.  K.  Marsh. 
[Ky.]  618;  13  Am.  Dec.  208),  and  the  word  "give"  in  a  deed  of  gift.  Pier  son 
v.  Armstrong,  1  Iowa,  282;  63  Am.  Dec.  440. 

2  Ryan  v.  Wilson,  9  Mich.  262. 

3  Bridge  v.  Wellington,   1  Mass.  219. 

4  Devlin  on   Deeds   §   1012.  Where  a  purchaser  takes   possession   of  a   rec- 
tangular piece  of  ground  under  a  deed  which  gives  the  boundaries  of  three 
sides  only  of  the  rectangle,  the  court  will  supply  the  fourth  side;   and  it  is 
no   defense   to   an    action    for   the    purchase   money   that    the    error    in   the 
description  leaves  an  outstanding  interest  in  the  grantor  or  his  heirs.     Ray 
v.  Pease,   (Ga.)   22  S.  E.  Rep.  190. 

5  In  the  description  of  lands  in  ejectment  or  in  a  conveyance,  it  suffices  to 
give  the  number  of  the  section,  township  and  range  according  to  the  public 
surveys.    Bledsoe  v.  Little,  4  How.  (Miss.)   13. 


54  MARKETABLE    TITLE    TO    REAL    ESTATE. 

courses  and  distances,  references  to  known  monuments  and  natural 
objects,  lands  of  adjacent  proprietors,  public  highways,  water 
courses  and  the  like,  and  an  estimate  of  the  quantity  of  land 
conveyed.  It  is  better  that  a  deed  should  contain  all  of  these 
items  of  description,  but  of  course  they  are  not  all  indispensable, 
if  from  a  part  of  them  the  land  cai>  be  located  and  identified. 
A  description  as  the  "  S.  $  of  the  X.  E.  }  of  S.  E.  4  "  of  a  sec- 
tion was  held  fatally  bad,  there  being  no  such  thing  as  the  "  south- 
east half"  of  a  section,  though  of  course  there  might  be  a  south- 
east quarter.1  A  description  of  the  land  conveyed  as  "  ten  acres, 
more  or  less,"  of  a  certain  other  piece  of  land,  without  showing 
how  the  ten  acres  are  to  he  cut  off,  makes  the  deed  void  for 
uncertainty.2  Land  described  in  a  deed  must  be  susceptible  of 
location,  that  is,  the  survey  must  be  made  to  close  as  to  the  whole 
tract,  or  some  definite  portion  thereof,  otherwise  the  deed  will  be 
void  and  inoperative.3  It  is  a  general  rule,  however,  that  if  the 
description  of  the  premises  given  in  a  deed  furnishes  a  sufficient 
means  of  locating  and  identifying  the  land  to  be  conveyed,  the  con- 
veyance will  be  sustained,  though  some  of  the  particulars  of 
description  may  be  erroneous  or  inconsistent.4  But  if  the  descrip- 
tion of  the  estate  include  several  particulars,  all  of  which  are  neces- 
saiy  to  ascertain  the  estate  intended,  no  estate  will  pass  except 
such  as  answers  to  every  particular.6  If  a  deed  contain  conflicting 
descriptions  of  equal  authority,  that  which  is  most  favorable  to  the 
grantee  will  be  taken.8  If  there  be  any  doubt  about  what  property 
a*  deed  conveys,  it  must  bo  construed,  most  strongly  against  the 
grantor.7  A  deed  which  contains  no  other  description  of  the 
premises  than  a  reference  to  another  deed  containing  a  full 
description  is  sufficient.8  And  an  uncertain  description  may  be 

1  Pry  v.  Pry,  109  111.  486. 
1  Wilkinson  v.  Roper,  74  Ala.  140. 
•WilRon  v.  Inloes,  6  Gill    (M.l.i.  121. 

«Vose  v.  Bradatreet,  27  Me.  168;  Bell  v.  Woodward,  46  N.  H.  315. 
'  Worthington  v.  Hylyer,  4  Mara.  196,  per  PARSONS,  C.  J. 
•Vance  v.  Fore,  24  Cal.  435. 
T  Black  v.  Grant,  50  Me.  364. 

•Glover  v.  Shields,  32  Barb.   (N.  Y.)   374;  Phelp*  v.  Phelps,  17  Md.  120; 
Johnston  v.  Scott,  11  Mich.  232. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   55 

cured  by  a  reference  in  the  deed  to  other  conveyances.1  A  gen- 
eral description  in  a  deed  will  govern  where  the  particular  descrip- 
tion by  metes  and  bounds  as  given  is  uncertain  or  impossible.2 
If  the  actual  boundaries  of  land,  as  marked  by  a  surveyor,  can 
be  shown,  the  grantor,  in  a  conveyance  of  the  land,  will  hold 
accordingly,  though  the  description  by  courses  and  distances  be 
incorrect.3  And  it  has  been  held  that  a  conveyance  by  metes  and 
bounds,  accompanied  by  transfer  of  possession  and  marking  the 
boundaries  by  natural  objects,  will  pass  the  title,  though  no 
particular  locality  be  set  forth  in  the  deed.4 

The  purchaser  jcannot  be  required  to  accept  a  deed  which  will 
require  judicial  construction  to  identify  the  premises  conveyed-.5 

'But  while  a  defective  or  ambiguous  description  may  be,  in  many 
instances,  cured  by  parol  evidence,  a  purchaser  should  never  be 
required  to  accept  a  conveyance  open  to  that  objection,  for  two 
reasons:  First,  because  the  want  of  an  adequate  and  precise 
description  of  the  premises  tends  to  render  his  title  unmarketable 
and  objectionable  to  future  purchasers;  and,  secondly,  because  a 
conveyance,  though  admitted  to  record,  is  not  notice  to  subse- 
quent purchasers,  unless  the  granted  premises  bei  therein  so  plainly 
and  clearly  described  that  a  person  reading  the  deed  may  locate 
and  identify  the  property  therefrom.6 

If  it  be  intended  by  the  deed  to  convey  lands,  they  must  be 
referred  to  or  described  in  the  deed.  Thus  it  has  been  held  that 
a  conveyance  of  the  "  assets  "  of  a  bank  would  not  pass  real 
property  belonging  to  the  bank  but  not  specifically  described  in  the 
conveyance.7 

§  21.  Description  of  estate  or  interest.  The  purchaser  should 
also  see  that  the  instrument  tendered  conveys  the  quantity  of  estate 
to  which,  by  the  contract,  he  is  entitled.  If,  by  the  contract,  he  is 

'Bowman  v.  Wettig,  39  111.  416. 
2  Sawyer  v.  Kendall,  10  Cush.    (Mass.)    241. 

3McIver  v.  Walker,  9  Cranch  (U.  S.),  173;  Strickland  v.  Draughsn,  88 
N.  C.  315. 

4  Banks  v.  Ammon,  27  Pa.  St.  172. 

6Wadick  v.  Mace,  103  N.  Y.  Supp.  889;  118  App.  Div.  777. 

6  Banks  v.  Ammon,  27  Pa.  St.  172. 

7  Wilson  v.  Johnson,   (Ind.)    38  N.  E.  Rep.  38. 


56  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

entitled  to  demand  a  conveyance  of  an  absolute  and  indefeasible 
estate  of  a  particular  description  in  fee  simple,  he  should  promptly 
reject  an  instrument  which  conveys  only  the  "  right,  title  or  inter- 
est "  of  the  grantor  in  the  premises,  for  such  a  paper,  as  a  general 
rale,  amounts  to  no  more  than  a  quit  claim  or  release,  and  would 
not  estop  the  grantor  from  setting  up  an  after-acquired  title  to  the 
estate.1  If,  however,  there  be  an  express  conveyance  of  an  estate 
of  a  particular  description,  the  addition  of  the  words  "  and  all  the 
estate,  right,  title,  interest  and  demand  whatever  "  of  the  grantor, 
would  not  convert  the  deed  into  a  mere  release.2  The  general 
rule  is  that  a  deed  shall  be  construed  to  pass  the  largest  estate 
which  the  grantor  may  have  in  the  premises,  unless  an  intention 
to  convey  a  lesser  estate  appears  from  the  instrument.3  It  fol- 
lows, then,  that  the  purchaser  cannot  reject  a  conveyance,  when 
tendered  to  him,  on  the  ground  that  the  quantity  of  estate  or  inter- 
est which  he  is  to  receive  is  not  therein  specially  described.  lie  is 
only  interested  to  see  that  the  instrument  does  not  convey  a  lesser 
estate  than  that  to  which  he  is  entitled.  A  grant  of  "  all  the  prop- 
erty I  possess  "  will  pass  an  estate  in  remainder.  And  a  convey- 
ance "  of  all  right,  title,  interest  or  claim  to  any  land  descended 
to  one  from  A."  passes  any  equitable,  as  well  as  legal,  estate  so 
descended.4  The  purchaser,  of  course,  cannot  object  to  the  deed 
tendered  him,  on  the  ground  that  it  conveys  a  greater  right  or 
interest  than  the  grantor  may  lawfully  pass  or  assume,  assuming 
that  the  purchase  was  of  the  lesser  estate.  The  conveyance  will 
operate  as  an  alienation  of  just  such  interest  in  the  premises  as 
the  grantor  actually  had.6  Thus,  a  deed"  by  a  joint  tenant,  or 
tenant  in  common,  purporting  to  convey  the  whole  estate,  is  not, 
for  that  reason,  void,  but  passes  the  individual  interest  of  the 

'Post,  "Estoppel,"  §  218.  But  a  conveyance  of  a  "  ripht,  title  iind  inter- 
est" will  not  be  construed  to  be  a  mere  <piit  claim,  if  tin  intent  to  cmivry 
an  estate  of  a  particular  description  appear.  United  States  v.  Cal.  &  Oreg. 
Land  Co.,  49  Fed.  Rep.  490;  1  C.  C.  A.  330. 

1  Dennison  v.  Ely,  1  Barb.  (N.  Y.)  810. 

•1   Shi-p.  Touch.  85;   ante,   *  <•<!    v.  Goodman.  47   Md.  54. 

4  Brantley  v.  Kee,  5  Jones  Kq.  (X.  C.)   332;  Barton  v.  Morris.  15  Ohio,  408. 

•3  Bl.  Com.  171;  Wisely  v.  Findlay,  3  Rand.  (Va.)  361. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   57 

grantor.1  The  quantity  of  estate  or  interest  intended  to  be  con- 
veyed was  expressed  usually  in  that  part  of  the  common-law  deed 
or  feoffment  known  as  the  habenduan;  thus,  "  to  have  and  to 
hold  to  him  the  said  A.  and  his  heirs  forever,"  etc.,  "  to  have  and 
to  hold  for  and  during  the  term  of  his  natural  life,"  etc.  This 
clause  is  still  sometimes  found  in  modern  deeds,  but  in  most  of 
the  States  has  fallen  into  disuse.2  When  employed  it  may  be 
looked  to  for  the  purpose  of  determining  the  true  construction 
of  the  deed,  with  this  limitation,  however,  that  if  it  be  incon- 
sistent with  or  repugnant  to  the  granting  clause  of  the  deed,  the 
latter  shall  prevail.3 

§  '22.  Signing  and  sealing.  We  have  already  seen  that  a  deed 
without  a  signature  might  be  valid  at  common  law,  the  authenticity 
of  the  instrument  being  established  by  the  seal  of  the  grantor.4  But 
now  by  statute,  in  most  of  the  American  States,  the  signature  of  the 
grantor  is  an  indispensable  part  of  a  deed.  And  even  in  those  States 
in  which  there  has  been  no  statutory  change  of  the  common  law,  it 
is  apprehended  that  no  purchaser  would  be  compelled  to  accept  a 
conveyance  not  signed  by  the  grantor,  so  strongly  has  use  and  cus- 
tom impressed  upon  the  masses  the  necessity  of  that  act.  The  pur- 
chaser is  entitled  to  a  conveyance  authenticated  in  such  a  manner  as 
not  to  excite  distrust  and  doubt  in  the  minds  of  those  to  whom  he 
desires  to  sell.  In  some  of  the  States  sealing  remains,  as  at  common 
law,  an  indispensable  formality  in  the  execution  of  a  deed.  Origi- 
nally a  seal  consisted  of  an  impression  upon  wax  or  some  similar 
material,  adhering  to  the  surface  of  the  paper  or  parchment,  or  an 
impression  upon  a  waxen  disc  attached  to  the  paper  by  ribbons  or 
strings.  But  now,  in  perhaps  every  State  of  the  Union,  a  direct 
impression  upon  the  paper  itself,  or  a  simple  scroll,  is  by  statute 
made  sufficient  as  a  seal.5  And  the  public  have  become  so  accus- 
tomed to  their  use  that  the  ancient  mode  of  sealing,  if  resorted  to 

1  White  v.  Sayre,  2  Ohio,  110. 

2  3  Washb.  Real  Prop.  466  (642). 

3Flagg  v.  Eames,  40  Vt.  23;  94  Am.  Dec.  363;  Mayor  v.  Bulkley,  51  Mo.  227; 
4  Kent  Com.  468. 

*  Shep.  Touchstone  (Preston's  ed.),  56;  3  Washb.  Real  Prop.  270;  Jeffery  v. 
Underwood,  1  Ark.  108. 

5  See,  generally,  upon  the  subject  of  seals,  3  Washb.  Real.  Prop.  271;  1  Devlin 
on  Deeds,  §  242. 

8 


MARKETABLE    TITLE    TO    REAL    ESTATE. 

in  any  case,  would  probably  be  unsatisfactory  to  the  purchaser. 
It  is  to  be  remembered  that  in  certain  of  the  States  a  scroll,  to  be 
sufficient  as  a  seal,  must  be  recognized  as  such  in  the  body  of  the 
instrument.  This  is  usually  the  office  of  the  testirnonium  clause  : 
;*  In  testimony  whereof,  I  have  hereunto  set  my  hand  and  seal,"  or, 
'•  Witness  the  following  signatures  and  seal,"  or  other  similar  phrase 
immediately  preceding  the  signature.  If  not  so  recognized,  the 
scroll  will  be  disregarded  and  the  paper  held  to  be  unsealed  and  inop- 
erative as  a  deed.1  But  an  exception  to  this  rule  exists  in  those 
cases  in  which  the  instrument  acknowledged  is  such  as  is  by  statute 
required  to  be  under  seal,  e.  g.,  a  deed.  In  such  a  case  the  acknowl- 
edgment of  the  instrument  as  a  deed  supplies  the  failure  of  the 
grantor  to  recognize  the  seal  in  the  body  of  the  instrument.2  The 
purchaser  should  see  that  there  are  as  many  scrolls  or  seals  as  there 
are  signatures  to  the  instrument.  It  has  been  held  that  several 
grantors  or  signers  may  adopt  the  seal  of  one  of  their  number  as 
the  seal  of  all,8  but  to  remove  any  doubt  or  difficulty  upon  that 
point,  it  is  better  that  a  scroll  be  attached  to  each  of  the  signatures. 

§  23.  Attestation  or  acknowledgment.  It  by  the  law  of  the 
place  where  the  granted  premises  lie  deeds  are  required  to  be  exe- 
cuted or  acknowledged  before  subscribing  witnesses,  either  as  a 
mere  authentication  for  registry  or  as  a  necessary  part  of  the  execu- 
tion of  the  instrument,  the  purchaser  should  see  that  the  requirement 
has  been  precisely  fulfilled.  He  should  also  see  that  the  witness  is 
competent,  being  neither  the  husband  or  wife  of  a  party  in  interest,4 
nor  a  party  in  interest  himself,  nor  otherwise  disqualified  to  testify. 

The  ordinary  mode  in  which  deeds  are  authenticated  for  record  is 
by  acknowledgment  before  certain  designated  officers,  who  attach  a 
certificate  of  acknowledgment  to  the  deed.  In  a  few  of  the  States 
this  acknowledgment  is  an  essential  element  in  the  execution  of  the 
deed,  but  in  most  of  the  States  the  only  object  of  the  acknowledg- 
ment is  to  furnish  the  recording  officer  with  proof  that  the  deed  is 

1  Clegg  v.  Lememwrier,  15  Oral.  (Va.)  10«;  Jenkins  v.  Hunt,  2  Rand.  (Va.)  446. 

*Cosner  v.  McCrum.  (W.  Va.)  21  8.  E.  Rep.  789;  Aahwell  v.  Ayres,  4  Grat. 
(Va.)  388. 

•Townsend  v.  Hubbard,  4  Hill  (N.  Y.),  851;  Burnett  v.  McCluey,  78  Mo.  676; 
I.utiil"!'  n  v.  Shnrp.  5)  Humph.  (Tenn.)224. 

4  Corbett  v.  NorcroM,  85  N.  H.  99. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   59 

genuine,  while  as  between  the  parties,  except  where  one  of  the 
grantors  is  a  married  woman,  the  deed  is  valid  without  the  acknowl- 
edgment. The  laws  of  nearly  every  State  in  the  Union  provide  that 
the  deed  of  a  married  woman  shall  not  be  valid  unless  she  acknowl- 
edges it,  and,  after  the  deed  has  been  explained  to  her  privily  and 
apart  from  her  husband,  declares  that  she  had  willingly  executed  it 
and  wished  not  to  retract  it.  But  while,  as  a  general  rule,  deeds 
are  valid  as  between  the  parties  without  acknowledgment,  that 
formality  is  of  vital  importance  to  the  purchaser.  For  unless  the 
acknowledgment  be  duly  taken  and  all  the  requirements  of  the  law 
in  respect  to  the  certificate  be  complied  with,  the  deed,  though 
admitted  to  record,  will  not  be  notice  to  subsequent  purchasers  and 
creditors  of  the  grantor,  who  might,  in  consequence,  deprive  the 
purchaser  of  the  estate.  Besides,  a  defective  certificate  of  acknowl- 
edgment is  regarded  as  a  defect  in  the  purchaser's  title,  and  should 
he  afterwards  sell  the  estate,  would  justify  the  vendee  in  refusing 
to  accept  the  title.  For  this  latter  reason  alone  it  is  important  that 
the  purchaser  should  exact  a  literal  compliance  with  every  provision 
of  law  relating  to  acknowledgment  and  to  the  certificate.  There 
has  been  no  more  prolific  source  of  objections  to  title  than  irregular 
or  informal  certificates  of  acknowledgment.  The  eye  of  the  marti- 
net instantly  detects  a  slight  departure  from  statutory  forms,  and 
large  transactions  in  real  property  are  sometimes  suspended,  or  even 
abandoned,  on  account  of  real  or  supposed  difficulties  thus  sug- 
gested. It,  therefore,  behooves  the  purchaser  to  subject  the  deed 
which  he  receives  to  the  closest  scrutiny,  in  ">rder  that  the  certifi- 
cate of  acknowledgment  shall  afford  no  ground  for  captious  objec- 
tions to  his  title  in  the  future.  He  should  insist  upon  a  rigid  and 
literal  adherence  to  the  prescribed  forms,  no  matter  how  trivial  and 
unimportant  the  departures  may  seem.  It  is  proposed  now  to 
invite  attention  to  the  essential  parts  of  a  certificate  of  acknowledg- 
ment, and  for  that  purpose  a  form  such  as  in  general  use  is  added 
here.  Like  the  Statute  of  Frauds,  every  clause  and  every  important 
word  in  it  has  been  the  subject  of  repeated  adjudications. 

STATE  OF  ,  -\ 

County  of ,\to-wit(a}: 

I,  William  Smith,  a  notary  public  in  and  for  the  county  and  State 
aforesaid(J),  do  certify  that A.   B.(c)  —    -  whose  name  is 


GO 


MARKETABLE    TITLE    TO    KEAL    ESTATE. 


signed  to  the  foregoing  writing^/),  bearing  date  on  the  —  day  of 
— ,  —  — .  personally  appeared  before  me  in  the  county  afore- 
said^), the  said  A.  13.  being  well  known  to  me  to  be  the  person  who 
executed  the  said  writing(t/* ),  and  acknowledged  the  same  to  l>e  his 
act(</).  And  I  further  certify  that  C.  B.,  wife  of  the  said  A.  B.t 
whose  names  are  signed  to  said  writing  bearing  date  as  aforesaid, 
the  said  C.  B.  being  well  known  to  me  as  one  of  the  persons  who 
executed  said  writing,  and  being  by  me  examined  privily  and  apart 
ironi  her  hnsband(A),  and  having  the  writing  aforesaid  fully  explained 
to  her(/),  she,  the  said  C.  B.,  acknowledged  the  same  to  be  her  act 
and  deed,  and  declared  that  she  had  willingly  executed  the  same(&), 
and  wished  not  to  retract  it(/).  Given  under  my  hand  and  seal(ra), 

this  —  day  of(rc) . 

WILLIAM  SMITIIO),  N.  P.(j>)     [SEAL](?). 

§  24.  (a)  Venue  of  certificate.  Regularly,  a  certificate  of 
acknowledgment  should  state  in  the  caption  or  margin,  as  in  the 
foregoing  form,  the  name  of  the  State  and  of  the  city  or  county 
for  which  the  officer  was  appointed,  and  in  which  the  acknowledg- 
ment was  taken.  This  is  called  the  "  venue  '*  of  the  certificate,  but 
its  absence  from  the  paper  will  not  be  fatal  if  it  otherwise  suffi- 
ciently appears  from  the  body  of  the  certificate  or  from  the  deed 
itself  read  in  connection  with  the  certificate  where  the  acknowledg- 
ment was  taken.1  But  if  the  place  of  acknowledgment  cannot  bo 
determined  from  any  of  these  sources,  the  certificate  will  be 
rejected.2  The  purchaser  should  avoid  all  difficulty  upon  this  point 
by  insisting  that  the  paper  tendered  shall  literally  follow  the  pre- 
scribed form. 

§  25.  (b)  Name,  official  designation^  and  authority  of  officer. 
The  name  of  the  certifying  officer  should  appear  in  the  body  of  the 
certificate.  But  this,  it  is  apprehended,  is  not  indispensable  if  the 
certificate  be  duly  signed  by  the  officer.  If  the  statute  provides 
that  the  acknowledgment  shall  be  made  l>efore  two  officers  instead 

'Graham  v.  Anderson,  42111.  514;  93  Am.  Dec.  H9;  Dimlup  v.  Dougherty.  30 
111.  :«»7;  Piihrmnn  v.  London,  13  Serg.  &  R.  (Pa.)  «««;  15  Am.  Dec.  608;  Hrooks 
v.  Ch:ii>lin.  :i  Vt.  281;  28  Am.  Dec.  201». 

1  Vance  v.  Schuyler,  1  Oilm.  (111.)  160;  Ilardin  v.  Kirk,  49  111.  153;  95  Am 
Dec.  581. 

8 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.       61 

of  one,  the  names  of  both  should  be  set  out  in  the  certificate.1 
The  purchaser,  of  course,  whether  as  grantee  in  his  own  right  or  in 
a  representative  capacity,2  should  not  take  the  acknowledgment  of 
the  grantor.  The  court  will  reject  a  certificate  by  an  interested 
party.3  The  fact  that  an  officer  taking  an  acknowledgment  is 
related  to  one  of  the  parties  does  not  bring  him  within  this  rule.4 
One  who  owns  an  interest  in  a  tract  of  land  is  not  thereby 
prevented  from  taking  an  acknowledgment  of  a  deed  con- 
veying the  interest  of  another  person  in  the  same  land.5 
If,  by  statute,  a  recital  in  the  body  of  the  certificate  showing  the 
official  character  of  the  person  taking  the  acknowledgment  is  made 
necessary,  and  there  be  no  such  recital  and  no  addition  of  the  official 
character  after  the  signature  of  the  officer,  the  certificate  will  be  insuf- 
ficient.6 In  the  absence  of  any  statutory  provision  upon  the  subject,  it 
is  not  absolutely  necessary  to  recite  the  official  character  in  the  certifi- 
cate.7 If  the  statute  requires  that  the  certificate  shall  show  that  the 
officer  is  one  of  those  authorized  by  iaw  to  take  acknowledgments, 
evidence  aliunde  will  not  be  received  to  supply  a  defect  in  that  par- 
ticular ;  otherwise,  if  the  statute  does  not  so  require.8  A  variance 
between  the  recital  of  official  character  in  the  body  of  the  certifi- 
cate, and  that  appended  to  the  signature  of  the  officer,  is  not 

1  Ridgely  v.  Howard,  3  Harr.  &  McH.  (Md.)  321. 

2  Beaman  v.  Whitney,  20  Me.   413;   Brown  v.  Moore,  38  Tex.  645,  trustee; 
Black  v.  Gregg,  58  Mo.  565,  trustee;  Stevens  v.  Hampton,  46  Mo.  404;  Dail  v. 
Moore,  51  Mo.  589;  Clinch  River  Veneer  Co.  v.  Kurth,   90  Va.  737,  a  case  in 
which  the  trustee  in  a  deed  took  an  acknowledgment  thereof. 

3  Withers  v.  Baird,  7  Watts  (Pa.),  227;  32  Am.  Dec.  754;  Groesbeck  v.  Seeley, 
13  Mich.  029;  Davis  v.  Beazley,  75  Va.  491;  Clinch  River  Veneer  Co.  v.  Kurth, 
(Va.)  19  S.  E.  Rep.  878;  Wilson  v.  Traer,  20  Iowa,  231.    Compare  Kimball  v. 
Johnson,  14  Wis.  674. 

4  Lynch  v.  Livingston,  6  X.  Y.  422. 

5  Dussaume  v.  Burnett,  5  Iowa,  95;  Long  v.  Crews,  113  N.  C.  256;  18  S.  E. 
Rep.  499,  when  the  officer  was  a  preferred  creditor  in  the  deed;  so,  also,  in  Baxter 
v.  Howell,  (Tex.  Ciy.  App.)  26  S.  W.  Rep.  453.     Acknowledgment  of  a  clerk  is 
not  invalid  because  taken  by  his  deputy.     Piland  v.  Taylor,  113  N.  C.  1;  18  S. 
E.  Rep.  70. 

6  Johnston  v.   Haines,  2  Ohio,  55;  15  Am.   Dec.   533.     See,  also,  Van  Ness  v. 
Bank,  13  Pet.  (U.  S.)  17. 

1  Russ  v.  Wingate,  30  Miss.  440;  Shultz  v.  Moore,  1  McLean  (U.  S.),  520. 
•Van  Ness  v.  Bank,  13  Pet.  (U.  S.)  17;  Scott  v.  Gallagher.  11  Serg.  &  R.  (Pa.) 
-347;  16  Am.  Dec.  508. 


62  MARKETABLE    TITLE    TO    REAL    ESTATE. 

material.1  And  a  variance  between  the  statutory  description  of  the 
officer  and  that  contained  in  the  certificate  is  immaterial.*  The  pur- 
chaser should  be  careful  to  see  that  the  certifying  officer  is  one  of 
the  class  authorized  by  statute  to  take  acknowledgments.  A  certifi- 
cate by  an  officer  not  named  in  the  statute  will  be  insufficient.3  It 
is  not  necessary  that  an  officer  shall  certify  that  he  was  authorized 
to  take  acknowledgments ;  the  fact  that  he  describes  himself  as  a 
particular  officer  is  sufficient,  and  his  authority  may  be  shown 
aliunde.*  If  the  competency  and  authority  of  the  certifying  officer 
be  unknown  to  the  purchaser,  he  should  insist  upon  evidence  of  those 
particulars,  which,  when  supplied,  usually  consists  of  a  certificate  of 
the  judge  or  clerk  of  the  court  in  which  the  officer  qualified,  setting 
forth  the  fact  of  such  qualification,  and  the  vitality  of  the  i>tH<-«-i'> 
commission.5  It  is  customary  also  for  the  certifying  officer  to 
append  to  his  certificate  a  statement  of  the  time  when  his  eommi- 
sion  will  expire. 

But  while  a  purchaser  would  doubtless  be  justified  in  declining  to 
accept  a  deed  which  had  been  acknowledged  before  an  officer  whose 
commission  had  expired,  or  before  one  who  had  usurped  the  oilier, 
by  virtue  of  which  he  acted,  it  seems  that  the  certificate  would  in 
neither  case  be  held  invalid,  if  the  person  making  it  assumed  to  ;«•! 
in  an  official  capacity,  and  had  color  of  title  to  the  office  in  ques- 

1  Merchants'  Bank  v.  Harrison,  39  Mo.  438;  93  Am.  Dec.  285,  *einbU. 

'May  v.  McKeenon,  6  Humph.  (Tenn.)  207;  Welles  v.  Cole,  6  Grat.  (Va.)  645. 

'Dundy  v.  Chambers,  28  111.  869  (312).  Here  the  statute  authorized  an 
acknowledgment  before  mayors  of  cities.  It  was  held  that  an  acknowledgment 
before  a  mayor  of  a  Itnen  was  invalid.  Kimhall  v.  Semple,  I0('al.  -111.  S.  •<•,  :ilso. 
Wright  v.  Wells,  12  N.  J.  I.  i:il:  Vlil.-r  v.  Hutchinson,  23  Pa.  St.  110.  In  North 
Carolina  it  has  been  held  that  the  authority  of  COOliniMlonen  appointed  by  the  State 
government  to  take  acknowledgments  to  deeds  is  routined  to  deeds  made  by  non 
residents  of  the  Slat-  !><•  Courery  v.  Burr.  1  Hiisb.  Kq.  <N.  C.)  181.  A  judge  of  the 
I'nited  States  court,  authorized  to  take  an  acknowledgment,  may  take  it  anywhere 
in  his  jurisdiction.  Moore  v.  Vance,  1  Ohio,  14.  A  statute  authori/ing  tin- 
appointment  of  commissioners  of  deeds  in  the  cities  of  the  State  does  not  extend 
to  cities  inrnrporated  after  the  ad  took  effect.  Parker  v.  Baker,  1  Clark  (N.  Y.) 

4  UvinjrsiMi,  v    McDonald,  9  Ohio. 

*It  must  appear  from  the  c  ertiticate  of  th«>  judge  that  the  otlicer  taking  the 
acknowledgment  was  qualified  to  a<  t  us  such  at  the  time  the  acknowledgment  was 
Uken.  Phillip-.  v.  People.  11  in.  A  pp.  1140.  As  to  doubts  about  the  title  arising 
from  these  particulars,  sec  post.  rh.  :J1.  ?  800. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   63 

tion.1  In  such  a  case  the  act  of  a  de  facto  officer  cannot  be 
questioned  in  a  collateral  proceeding. 

Where  a  certifying  officer  has  power  to  appoint  a  deputy,  an 
acknowledgment  taken  and  certified  by  such  deputy  will  be  suffi- 
cient.2 The  better  practice  is  that  the  certificate  shall  read  as  if 
the  acknowledgment  had  been  taken  before  the  principal  himself, 
and  be  subscribed  with  his  name,  by  "A.  B.,  Deputy,"  etc.8  But 
a  certificate  by  the  deputy  in  which  the  name  of  the  principal 
nowhere  appeared  has  been  held  valid.4  The  body  of  the  certifi- 
cate should  show,  either  by  express  recital  or  by  reference  to  the 
caption  or  the  margin  of  the  certificate,  the  State,  county,  city  or 
other  municipality  in  which,  and  as  an  officer  of  which,  the  person 
signing  the  certificate  professes  to  act.  If  this  cannot  be  collected 
from  the  whole  instrument,  read  in  connection  with  the  deed,  the 
certificate  will  be  rejected.5 

§  26  (c)  Name  of  grantor.  The  name  of  the  grantor  or  person 
acknowledging  the  deed  must  be  stated  in  the  recital  of  acknowl- 
edgment in  the  certificate,  and  if  not  so  stated,  the  certificate  will 
be  worthless,6  unless  he  be  so  described  therein  that  he  may  be 
identified  as  the  person  who  signed  the  deed.7  The  purchaser 
should  avoid  any  future  question  or  doubt  which  may  arise  from 
this  source  by  insisting  that  the  name  of  the  grantor  recited  in  the 
certificate  shall  correspond  precisely  with  the  name  signed  to  the 
deed.8  But  where  a  deed  has  been  acknowledged  in  open  court,  a 

1  Brown  v.  Lunt.  87  Me.  423;  Prescott  v.  Hayes,  42  N.  H.  56;  Crutchfleld  v. 
Hewett,  2  App.  Cas.  (D.  C.)  373. 

*Mullerv.  Boggs,  25  Cal.  175;  Rose  v.  Neuman,  26  Tex.  131;  80  Am.  Dec. 
646;  Kemp  v.  Porter,  7  Ala.  138. 

1  Talbot  v.  Hooser,  12  Bush  (Ky.),  408;  McCraven  v.  McGuire,  23  Miss.  100. 

4  Beaumont  v.  Yeatman,  8  Humph.  (Tenn.)  542. 

s  Vance  v.  Schuyler,  1  Gilm.  (111.)  160. 

6  Smith  v.  Hunt,  13  Ohio,  260;  42  Am.  Dec.  201;  Hiss  v.  McCabe,  45  Md.  84; 
Hayden  v.  Westcott,  11  Conn.  129. 

1  Sanford  v.  Bulkley,  30  Conn.  344,  where  the  person  acknowledging  the 
deed  was  referred  to  in  the  certificate  as  "Signer  and  sealer  of  the  foregoing 
instrument."  Wise  v.  Postlewait,  3  W.  Va.  452. 

8  The  danger  of  inattention  to  this  feature  of  the  certificate  is  illustrated  by 
the  case  of  Boothroyd  v.  Engles,  23  Mich.  19.  There  the  deed  was  signed  by 
Harmon  Sherman,  but  the  certificate  recited  an  acknowledgment  by  Hiram  Sher- 
man, and  this  the  court  held  insufficient  as  proof  of  execution  and  acknowledg- 


64  MARKETABLE    TITLE    TO    REAL    ESTATE. 

certificate  of  that  fact  which  fails  to  state  by  whom  the  deed  was 
acknowledged  is,  nevertheless,  sufficient,  it  being  presumed  that  the 
acknowledgment  was  by  the  grantor.1 

If  the  deed  be  that  of  a  corporation,  the  proper  person  to  acknowl- 
edge it  is  the  officer  who  affixed  the  corporate  seal.2  If  the  deed 
be  signed  by  two  or  more  officers  of  the  corporation,  an  acknowl- 
edgment by  one  of  them  will  suffice.8  The  instrument  should  be 
acknowledged  to  be  the  act  and  deed  of  the  corporation,  and  not  of 
the  subscribing  officer.4 

It  is  the  better  practice  that  the  official  or  representative  capacity 
of  a  party  acknowledging  a  deed,  such  as  a  sheriff,  trustee,  commis- 
sioner, etc.,  be  stated  in  the  certificate,  but  this  is  not  essential,  and 
a  mere  description  of  the  grantor  by  his  name  will  be  sufficient.5 
An  authority  to  execute  a  deed  of  trust  as  attorney  gives  the  power 
by  implication  to  acknowledge  it  for  registration.0  It  seems  that  a 
grantor,  executing  a  deed  in  his  own  proper  person,  may  acknowl- 
edge it  through  an  attorney  in  fact.7  A  certificate  that  "  A. 
duly  acknowledged  to  me  that  he  subscribed  the  name  of  B. 
to  said  deed  as  principal  and  his  own  name  as  attorney  in  fact,'1  is 
sufficient.8 

§  27.  (d)  Annexation  of  deed  and  reference  thereto.  In  some 
of  the  States  a  certificate  of  acknowledgment  is  by  statute  required 
to  be  written  or  printed  upon  the  same  paper  on  which  the  deed  is 
drawn.  Under  such  a  statute  it  has  been  held  that  a  certificate 


nient  of  the  deed  by  Hnrmon  Sherman.  A  deed  was  signed  "F.  M.  McKinzic." 
and  the  certificate  stated  an  acknowledgment  by  "F.  M.  McKezie."  lleld,  insuf- 
ficient. McKin/.ie  v.  Stafford,  (Tex.)  27  S.  W.  Hep.  790.  But  see  Chandler  v. 
Spear,  22  Vt.  3S8,  where  it  was  held  that  an  incorrect  recital  of  the  grantor's 
name  in  the  certificate  was  not  fatal,  if  it  appeared  with  reasonable  certainty  from 
the  whole  instrument  that  it  was  in  fat*  acknowledged  by  him. 

1  Phillips  v.  Ruble,  Lilt.  Scl.  Cas.  (Ky.)  221. 

'Kelly  v.  Calhoun.  95  U.  8.  710;  Lovett  v.  Saw  Mill  Assn.,  «  Paige  (N. 
Y.).  54. 

1  Merrill  v.  Montgomery,  25  Mich.  78. 

4McDaniel»  v.  Flower  Brook  Mfg.  Co.,  22  Vt.  274.  But  ice  Tenney  v.  East 
Warren,  etc..  Co.,  48  N.  H.  848. 

s  Ihiil  v.  Moore.  51  Mo.  589;  Robinson  v.  Mauldin,  11  Ala.  977. 

*  Robinson  v.  Mauldin.  1 1  Ala.  977. 

1  Elliott  v.  Oahorn,  1  llarr.  &  Mcll.  (Md.)  146. 

•Richmond  v.  Voorbees.  10  Wa»h.  816;  38  I»ac.  Rep.  1014. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   65 

written  upon  a  separate  piece  of  paper,  but  firmly  attached  to  the 
deed,  was  not  in  compliance  with  the  law  and  was  insufficient,1  a 
decision  that  savors  somewhat  of  excessive  refinement.  Ordinarily, 
it  suffices  to  attach  the  certificate  to  the  deed  with  mucilage  or  other 
adhesive  substances.  And,  in  the  absence  of  any  statutory  provision 
bearing  upon  the  point,  it  is  apprehended  that  the  certificate  would 
not  be  open  to  objection  even  if  it  were  detachable  from  the  deed. 
The  fact  that  the  certificate  of  acknowledgment  refers  to  the  deed 
to  which  it  is  attached  as  the  "  foregoing  mortgage,"  the  same  not 
being  a  mortgage,  is  immaterial.2 

§  28.  (e)  Jurisdiction  of  officer.  The  rule  that  an  officer  has  no 
power  to  take  an  acknowledgment  without  the  limits  of  the  county, 
city  or  other  municipality  in  and  for  which  he  was  appointed,  pre- 
vails, it  is  believed,  in  most  of  the  States.3  It  has  been  held,  how- 
ever, that  if  the  certificate  does  not  show  that  the  acknowledgment 
was  taken  within  the  jurisdiction  of  the  officer,  that  fact  will  be  pre- 
sumed,4 the  legal  presumption  being  in  favor  of  the  validity  of  the 
acts  of  public  officers,  where  nothing  to  the  contrary  appears.  But 
inasmuch  as  the  form  of  certificate  generally  prescribed  recites  the 
county  for  which  the  officer  was  appointed,  and  that  the  grantor  per- 
sonally appeared  before  the  officer  in  that  county,  and  acknowledged 
the  deed,  the  purchaser,  it  is  apprehended,  may  well  reject  a  cer- 
tificate which  does  not  contain  those  recitals.  Of  course,  the  officer 
may  always  take  an  acknowledgment  within  his  jurisdiction,  regard- 
less of  the  location  of  the  premises  conveyed.5 

§  29.  (f)  Personal  acquaintance  with  grantor.  The  recital  in 
the  certificate  thai;  the  party  acknowledging  the  deed  was  well  known 

1  Winkler  v.  Higgins,  9  Ohio  St.  599. 

1  Ives  v.  Kimball,  1  Mich.  308. 

3  Long  v.  Crews,  118  N.  C.  256;  18  S.  E.  Rep.  499;  Dixon  v.  Robbins,  114  N. 
C.  102;  Ferebee  v.  ffinton,  102  N.  C.  99;  8  S.  E.  Rep.  922.  The  jurisdiction  of 
the  officer  depends  upon  the  statute  which  confers  his  authority.  Thus,  when 
it  was  provided  that  an  acknowledgment  might  be  taken  by  "any  justice  in 
this  State,"  it  was  held  that  a  j  ustice  might  take  an  acknowledgment  any  where 
in  the  State.  Learned  v.  Riley,  14  Allen  (Mass.),  109. 

4Sidwcli  v.  Birney.  69  Mo.  144;  Thurman  v.  Cameron,  24  Wend.  (N.  Y.)  87. 
In  both  these  cases  the  venue  of  the  certificate  showed  the  State  and  county  in 
which  it  was  made.  Of  course,  it  does  not  necessarily  follow  that  the  acknowledg- 
ment was  taken  in  such  county.  Trulock  v.  Peeples,  1  Ga.  8. 

*  Johnson  v.  McGhee,  1  Ala.  168;  Colton  v.  Seavey,  22  Cal.  496. 

Q 


66  MARKETABLE    TITLE    TO    REAL    ESTATE. 

to  the  officer,  or  that  his  identity  was  proved  to  the  officer  by  the 
oaths  of  credible  witnesses,  is  indispensable.1  Equivocal  phrases, 
Biich  as  that  the  officer  is  satisfied  as  to  the  identity  of  the  party,  will 
not  suffice.2  But  where  the  statute  provided  that  the  officer  should 
certify  that  he  was  '*  personally  acquainted  with"  the  grantor,  a  cer- 
tificate that  the  grantor  was  "personally  known"  to  the  officer  was 
held  sufficient.8  The  omission  of  the  word  "  known  "  in  the  clause 
"  personally  known  to  me "  will  be  fatal.4  But  it  has  been  held 
that  the  omission  of  the  word  "  personally  "  from  the  same  clause 
is  immaterial.5 

§  30.  (</)  Fact  of  acknowledgment.  The  recital  that  the  grantor 
appeared  before  the  certifying  officer  and  acknowledged  the  deed  is 
the  gist  of  the  whole  certificate.  The  word  "  acknowledged  "  is  not 
indispensable,'  but  unless  the  fact  of  acknowledgment  be  made  to 
appear  by  the  use  of  that  word  or  its  equivalents,  the  certificate  will 
be  fatally  defective.7  A  recital  that  the  grantor  made  oath  that 
lie  signed,  sealed  and  delivered  the  deed  has  been  held  equivalent  to  a 
statement  that  he  acknowledged  the  deed.8  But  a  recital  that  the 
grantor  "  stated "  that  he  had  executed  the  deed  was  held  insuf- 

'  Fogurty  v.  Finlay.  10  Cal.  239;  70  Am.  Dec.  714;  Wolf  v.  Fogarty,  «  Cal. 
224;  65  Am.  Dec.  509;  Gove  v.  Gather,  23  111.  634  (585);  76  Am.  Dec.  711;  Fryer 
v.  Rockefeller,  63  N.  Y.  268.  This  was  a  cnse  which  arose  between  vendor  and 
purchaser.  The  purchaser  rejected  the  title  because  a  certificate  of  acknowl- 
edgment in  the  chain  of  title  did  not  show  personal  acquaintance  with  the 
grantor. 

'Kimball  v.  Simple,  25  Cal.  440;  Shepherd  v.  Carricl,  19  111.  313;  Short  v. 
Conlee,  28  111.  219. 

»  Kelly  v.  Calhoun,  95  U.  8.  710.  See,  also,  Sheldon  v.  Stryker,  42  Barb.  (N. 
Y.)284;  Thunnan  v.  Cameron,  24  Wend.  (N.  Y.)  87. 

4Tully  v.  Davis,  30  111.  103;  83  Am.  Dec.  179.  Even  though  the  omission  be 
apparently  inadvertent.  Wolf  v.  Fogarty,  6  Cal.  224;  65  Am.  Dec.  509;  Gould 
v.  Woodward,  4  Green  (Iowa),  82.  But  see  Rosenthal  v.  Griffin,  23  Iowa,  268. 

» Hopkins  v.  Delaney,  8  Cal.  85;  Welch  v.  Sullivan,  8  Cal.  511;  Alexander  v. 
Merry.  9  Mo.  514. 

•  Chouteaii  v.  Allen,  70  Mo.  290.  Here  the  certificate  recited  that  the  grantor, 
being  duly  sworn,  "deposes  and  says,"  etc. 

'Cabell  v.  Gru^ba,  48  Mo.  853:  Short  v.  Conlee,  28  111.  219.  In  Bryan  v. 
Ramirez.  8  C'al.  461;  6H  Am.  Dec.  840,  the  certificate  reciU-d  that  the  grantor  was 
known  to  the  officer  to  l>e  such,  but  did  not  Hhow.  an  acknowledgment. 

•Ingraham  v.  Grijrg.  13  Sm.  &  M.  (Miss.)  22.  An  acknowledgment  tluit  he 
"aimed  sealed  and  delivered"  the  deed  is  aUo  equivalent  t"  an  acknowl- 


SUFFICIENCY  OF  CONVEYANCE  TENDEKED  BY  THE  VENDOR.   67 

fici'ent.1  It  seems  that  an  inadv-ertent  or  clerical  omission  of  the 
word  "  acknowledged  "  from  the  certificate  will  render  it  invalid.2 
And  where  a  statute  provides  that  the  grantor  shall  acknowledge 
the  instrument  to  be  his  "  voluntary  "  act  and  deed,  the  omission  of 
the  word  "  voluntary,"  or  its  equivalent,  makes  the  certificate 
worthless.3 

§  31.  (A)  Privy  examination  of  wife.  A  certificate  of  acknowl- 
edgment of  a  deed  executed  by  a  married  woman  requires  the 
closest  scrutiny  of  the  purchaser.  The  formalities  prescribed  by 
statute  in  this  behalf  are  intended  to  supersede  the  ancient  common- 
law  mode  of  conveying  the  lands  of  a  married  woman  by  fine  and 
recovery.  They  are,  therefore,  necessary,  not  only  as  an  authenti- 
cation of  the  deed  for  record,  but  as  a  part  of  the  execution  of  the 
deed  itself,  without  which  it  would  be  invalid  between  the  parties, 
as  well  as  to  subsequent  purchasers  without  notice.4  For  this 
reason,  and  because  of  the  jealous  care  with  which  the  courts  guard 
the  rights  of  those  who  act  principally  under  the  direction  or  per- 
suasion of  others,  the  most  rigid  compliance  with  all  the  require- 
ments of  the  law  relating  to  the  acknowledgments  of  married  women 
lias  been  exacted.  It  is,  therefore,  indispensable  that  the  certificate 
shall  show  that  the  woman  was  examined  by  the  officer  privily  and 
apart  from  her  husband.  But  it  is  not  necessary  that  these  precise 
words  shall  be  employed  in  the  certificate  if  others  of  the  same 
import  are  used.  Thus,  a  certificate  that  the  officer  took  "the  pri- 
vate examination "  of  the  wife,  and  that  she  acknowledged  that 
"  she  executed  the  deed  without  any  compulsion  from  her  husband," 
was  held  sufficient.5  So,  where  the  language  was  "  after  a  private 
examination,  separate  and  apart  from  her  said  husband."6  And 
where  the  statute  required  that  the  woman  should  be  examined  "  out 
of  the  presence"  of  the  husband,  a  certificate  that  she  was  "pri- 

edgment  that  he  executed  the  deed.  Jacoway  v.  Gault,  20  Ark.  190;  73  Am. 
Dec.  494. 

1  Dewey  v.  Campau,  4  Mich.  565.     This  was  a  great  refinement. 

9  Stanton  v.  Button,  2  Conn.  527. 

3  Newman  v.  Samuels,  17  Iowa,  528;  Spitznagle  v.  Van  Hessch,  Neb.  338. 
But  see  Henderson  v.  Grewell,  8  Cal.  581. 

4Barnett  v.  Shackleford,  6  J.  J.  Marsh.  (Ky.)  532;  22  Am.  Dec.  100. 

*  Skinner  v.  Fletcher,  1  Ired.  L.  (N.  C.)  313. 

*  Kennedy  v.  Price,  57  Miss.  771. 


G8  MARKETABLE    TITLE    TO    REAL    ESTATE. 

vatcly  examined,  apart  from  and  out  of  the  hearing  of  her  husb;< 
iws  accepted.1     But  where  the  statute  required  that   the  officer 
should  examine  the  wife  "  separately  and  apart "  from  her  husband, 
a  certificate  that  she  had  been  examined  "apart"  from  him  \vac 
held  insufficient.2 

§  32.  (i]  Explanation  of  contents  of  </>•</.  The  recital  that  the 
officer  explained  to  the  woman  the  contents  «»f  the  deed  is  ai>o  al»o- 
lute.y  indispensable.8  The  intent  <>f  the  ia\v  i>  to  protect  her  from 
deception,  as  well  as  coercion,  in  the  execution  of  the  instrument. 
Where  a  statute  provided  that  the  officer  should  make  known  and 
explain  the  contents  of  the  deed  to  the  woman,  a  certificate  which 
set  forth  that  she  was  made  acquainted  witli  the  contents  of  the 
deed,  but  did  not  state  that  they  were  explained  to  her,  was  deemed 
sufficient.4  So,  also,  where  the  certificate  reciu-d  that  the  woman 
" acknowledged  and  declared  that  she  was  well  acquainted  with  the 
contents  of  the  deed."  '  a  division  open  to  grave  doubt,  since  she 
may  have  been  falsely  advised  a«  to  the  said  contents.  But  a  certifi- 
cate that  the  woman  u  declared  that  she  fully  understood  the  con- 
tents of  said  deed,"  without  stating  that  the  contents  were  ex  plained 
to  ner,  is  inva.id.' 

We  have  aiready  seen  that  a  recital  of  acknowledgment  in  the 
certificate,  or  what  amounts  to  such  a  recital,  is  necessary,  and  can- 
not be  supplied  by  intendment.7  Also,  that,  as  a  general  rule,  the 
deed  of  a  married  woman,  whether  a  mere  relinquishment  of  her 
contingent  right  of  dower,  or  a  conveyance  of  her  separate  estate, 

1  Deery  v.  Cray,  5  Wall.  (U.  8.)  795.  So,  also,  where  the  statute  provided  that 
the  officer  "shall  examine  hrr  private.y.  out  of  the  hearing  of  her  husband,"  and 
the  certificate  was  "being  by  us  privately  examined,"  omitting  the  words  "out 
of  the  hearing  of  her  husband."  Webster  v.  Hall,  2  Hair.  &  M<  !I  >H .1  19;  1 
Am.  Dec.  870. 

•Dewey  v.  <  ar.i|.:iu,  4  Midi.  .'if;.',.  But  s«  e  the  remarks  of  MII.MCK,  J.,  in 
Deery  v.  Cray,  5  WalL  (U.  8.)  795,  to  the  effect  that  "separate"  and  "apart,"  as 
used  in  the  form,  are  synonymous  terms 

'Houston  v.  Randolph,  12  Leigh  <  V.-i  ,.  l  IV  Bo..ing  v.  Teel,  76  Va.  498. 

*Ch*uvin  T.  WagiN T    U  N'      ~>41,  a  doubtfu.  decision. 

•Thomas  v.  M« -i«  < 

*  I/niirton  T.  Marshall,  59  Tex.  2U6;  Itunge  v.  Sabin,  (Tax.)  30  8.  W.  Rep. 
668. 

'Ante.  {  30. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   69 

is  void  as  between  the  parties,  unless  acknowledged  and  certified  in 
strict  conformity  with  the  requirements  of  the  law.1 

§  33.  (&)  Voluntary  act  of  wife.  Another  indispensable  requisite 
of  the  certificate  is  that  it  shall  contain  a  recital,  either  in  terms  or 
in  substance,  that  the  woman  declared  that  she  had  signed,  sealed 
and  delivered  the  deed  willingly.  An  officer  should  never  undertake 
to  draw  the  certificate  unless  he  has  the  statutory  form  before  him, 
If  he  relies  upon  his  memory  he  is  apt  to  use  expressions  deemed  by 
him  the  equivalent  of  those  contained  in  the  statute,  or  to  omit  words 
which  appear  to  him  immaterial.  A  vast  number  of  cases  are  to  be 
found  in  the  reports  in  which  the  courts  have  been  called  upon 
to  decide  the  correctness  of  his  judgment  in  these  particulars. 
Expressions  which  the  courts  in  one  State  have  deemed  sufficient 
substitutes  for  the  language  of  the  statute  above  quoted,  have  been 
rejected  in  others.2  A  certificate  of  acknowledgment  by  a  married 
woman  which  departs  from  the  statutory  form,  may  always  be  relied 
upon  to  create  such  a  reasonable  doubt  concerning  the  title  as  would 
justify  a  purchaser  from  the  grantee  in  refusing  to  complete  the 
contract,  for  there  is  no  rule  by  wliich  the  sufficiency  of  the  certifi- 
cate can  be  tested,  and  while  one  judge  might  deem  it  a  substantial 
compliance  with  the  law,  he  could  have  no  assurance  that  another 
judge,  if  the  title  should  be  afterwards  attacked,  in  ejectment  or 
otherwise,  would  not  entertain  a  contrary  opinion.  And  if  a  pur- 
chaser from  the  grantee  might  reject  the  title  as  unmarketable  upon 
this  ground,  a  fortiori  might  the  grantee  himself  reject  the  convey- 
ance until  a  certificate  free  from  doubt  should  be  tendered.  All 
possibility  of  doubt  or  question  as  to  the  validity  of  the  certificate 
should  be  removed  by  insisting  upon  a  strict  and  literal  conformity 
with  the  language  of  the  statutory  form  or  requirement.3 

'.Mason  v.  Brock,  12  111.  273;  52  Am.  Dec.  490;  Martin  v.  Dwelly,  6  Wead. 
(K  Y.)  9;  21  Am.  Dec.  245. 

*  Clinch  JRiver  Veneer  Co.  v.  Kurth,  90  Va.  737,  and  cases  cited  below. 

3  Cases  in  which  the  certificate  was  held  insufficient.  Where  the  statute  provided 
that  the  certificate  should  show  that  the  woman  acknowledged  that  she  had  not  been 
induced  to  execute  the  deed  through  "  ill-usage,"  and  the  certificate  was  that  she 
acknowledged  that  she  executed  the  deed  "of  her  own  free  will,  and  not  through 
any  threats  of  her  said  husband,  or  fear  of  his  displeasure."  Hawkins  v.  Burress, 
1  Harr.  &  J.  (Md.)  513.  Language  of  statute,  "signed,  sealed  and  delivered  the 
deed  as  her  voluntary  act  and  deed,  freely,  without  any  fear,  threats  or  compul- 
sion of  her  said  husband;  "  language  of  certificate,  "  signed,  sealed  and  delivered 


70  MAKKKTABLE    TITLE    TO    KEAL    ESTATE. 

§  34.  (/)  Wish  not  to  retract.  If  the  statute  provides  that  the 
wife,  in  addition  to  acknowledging  the  deed,  shall  state  that  she  does 
not  wish  to  retract  it,  a  certificate  will  be  fatally  defective  if  it  does 
not  recite  that  fact.1  It  is  not  absolutely  necessary  that  the  certifi- 
cate shall  follow  the  precise  language  of  the  statute,3  and  the 
employment  of  a  wrong  word,  but  one  obviously  intended  for  that 
used  in  the  statute,  will  not  vitiate  the  instrument.8  But  inasmuch 

the  above  instrument  of  her  own  free  will  and  accord,  and  without  any  force,  per- 
suasion or  threats  from  her  said  husband.'  Boykin  v.  Rain,  28  Ala.  332,-  65  Am. 
Dec.  349.  See,  also,  Alabama  Life  Ins.  &  Tr.  Co.  v.  Boykin,  38  Ala.  510.  Lan- 
guage of  statute,  '•  freely,  voluntarily,  without  compulsion,  constraint  or  coercion 
by  her  husband;"  language  of  certificate,  "had  willingly  signed,  sealed  and 
delivered  the  same,  and  that  she  wished  not  to  retract  it."  Henderson  v.  Hire,  1 
Coldw.  (Tenn.)  223.  Language  of  statute,  "had  willingly  executed  the  same, 
and  does  not  wish  to  retract  it;  "  the  certificate  omitted  the  words  "had  willingly 
executed  the  same."  Leftwich  v.  Neal,  7  W.  Va.  569.  Language  of  statute. 
"Toluntary  act  and  deed;"  language  of  certificate,  "of  her  own  free  will." 
Freeman  v.  Preston,  (Tex.)  20  8.  W.  Rep.  495. 

Ca»e»  in  which  the  certificate  uxis  held  sufficient.  Where  the  statute  provided  that 
the  certificate  should  show  that  the  woman  acknowledged  the  deed  "without 
undue  influence,"  and  the  certificate  was  that  she  acknowledged  "  that  she  exe- 
cuted the  same  freely  and  voluntarily  *  *  *  without  fear  or  compulsion." 
Goode  v.  Smith,  13  Cal.  81.  Language  of  stntute,  "of  her  own  free  will 
*  *  *  without  undue  influence  or  compulsion  of  her  husband:"  language  of 
certificate,  "  without  undue  influence  or  compulsion  of  her  husband."  Tubbs  v. 
Gatewood,  26  Ark.  128:  Language  of  statute,  "  voluntarily  and  of  her  own  free 
will  and  accord,  without  any  fear  or  coercion  of  her  husband;  "  language  of  cer- 
tificate, "acknowledged  the  above  indenture  to  be  (her)  voluntary  srct  and  deed." 
Ruffner  v.  McLenan,  16  Ohio,  639.  Language  of  statute,  "signed,  sealed  and 
delivered  the  same  as  her  voluntary  act  and  deed,  freely,  without  any  fear, 
threats  or  compulsion  of  her  husband;"  language  of  certificate.  "  that  she  signed, 
sealed  and  delivered  the  same,  freely  and  voluntarily,  and  without  any  threats  or 
compulsion  from  her  said  husband."  Den  v.  Geiger,  9  N.  J.  L.  225.  Language 
of  statute,  "as  her  voluntary  act  and  deed;"  language  of  certificate,  "freely 
and  of  her  owe  accord."  Dundas  v.  Hitchcock,  Vi,  How.  (U.  8.)  256.  Language 
of  statute,  "  that  she  had  freely  and  voluntarily  executed  the  same;"  l:muii:iir«-"f 
certificate,  "without  any  fear,  threats  or  compulsion."  Allen  v.  Deiioir.  .">:!  Mi-> 
821.  Language  of  statute,  "  that  she  had  of  her  own  free  will  executed  the 
deed,  without  compulsion  or  undue  influence  of  her  husband;  "  laniru.-i-e  of  cer 
tificate,  "freely  and  of  her  own  consent,  but  not  by  the  p.  r-ua-i.-ii  or  <  •om|nil>ior. 
Of  her  Said  husband."  Little  v.  Dodire.  :V.>  ArK 

•Grove  v.  Xuml.ro.  14  (Imt.  <Y:,.i  :.«U.  Churchill  v.  Moon-,  1  R.  I.  209. 

1  Ilatcman--  IVtition.  11  R    I 

•Belcher  v.  Weaver,  46  Tex.  298;  26  Am.  Rep.  267. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   71 

as  variances  and  departures  from  the  statutory  form  excite  doubt 
and  distrust  in  the  minds  of  timid  buyers,  the  purchaser  should  insist 
that  the  precise  language  of  the  statute  be  used. 

§  35  (m)  Reference  to  seal.  The  laws  of  some  of  the  States 
require  that  the  certificate  of  acknowledgment  shall  be  authenticated 
by  the  seal  as  well  as  the  signature  of  the  certifying  officer.  There 
seems  to  be  some  conflict  of  opinion  in  these  States  as  to  whether  it  is 
necessary  that  the  officer  shall  acknowledge  or  recognize  the  seal, 
either  in  the  body  of  the  instrument  or  in  the  attestation  clause.1 
Without  pausing  to  consider  the  cases  either  way,  it  suffices  to  say 
that  wherever  by  the  lex  rei  sitce  a  seal  is  required,  the  safer  course 
is  for  the  purchaser  to  see  that  there  is  a  recognition  of  the  seal  by 
the  officer,  in  the  usual  form,  "  Given  under  my  hand  and  seal,"  etc. 

§  36.  (ri)  Date  of  certificate.  It  is  customary,  and  the  better 
practice,  for  the  officer  to  insert  the  date  of  the  certificate  in  the 
attestation  clause.  But  a  date  is  not  indispensable  to  the  validity  of 
the  certificate,  unless  made  so  by  statute.2  And  the  fact  that  the 
certificate  bears  date  before  the  deed  itself  is  immaterial.3  Inas- 
much, however,  as  the  custom  of  dating  the  certificate  universally 
prevails,  and  the  absence  of  a  date  might  raise  a  doubt  in  the  mind 
of  a  timid  purchaser  respecting  the  title,4  the  grantee  would  prob- 
ably be  justified  in  rejecting  a  certificate  which  was  deficient  in  that 
particular. 

§  37.  (o)  Signature  of  officer.  It  is  absolutely  essential  that  the 
certificate  shall  be  signed  by  the  officer  by  whom  it  is  made.  The 
recital  of  the  name  of  the  officer  in  the  body  of  the  certificate  will 
not  suffice.5  The  certificate  is  often  printed  or  prepared  by  a  third 
person,  and  presented  to  the  officer  complete,  with  the  exception  of 
his  signature,  consequently  the  subscription  of  his  name  is  an 
important  step  in  the  authentication  of  the  paper.  But  even  though 
the  name  were  inserted  in  the  form  by  the  officer  himself,  or  the 
paper  were  wholly  in  his  handwriting,  the  omission  of  the  signature 

1  The  cases  may  be  seen  in  Mr.  Devlin's  work  on  Deeds,  §  491. 
*  Webb  v.  IIu#  61  I1ex.  677;  Irving  v.  Brownell,  11  111.  402. 

3  Gest  v.  Flock,  2  N.  J.  Eq.  108. 

4  It  will  be  seen  hereafter  that  in  some  cases  it  has  been  held  that  a  purchaser 
may  reject  a  title  if  "unsatisfactory  "  to  him,  though  his  objections  to  the  title 
are  really  captious  and  untenable.     Post,  §  288. 

5  Carlisle  v.  Carlisle,  78  Ala.  542. 


(2.  MARKETABLE    TITLE    TO    REAL    ESTATE. 

wonld  be  fatal,  the  actual  subscription  of  his  imuie  being  required 
as  a  promulgation  of  the  instrument.1  if  the  certificate  be  by  a 
deputy,  the  name  of  the  principal  should  be  subscril>ed  "by  A.  B., 
deputy,"  etc.2 

§  38.  (p)  Abbreviation  "«/.  -P.,"  etc.  It  is  not  absolutely  neces- 
sary tliat  the  officer  shall  add  to  his  signature  his  official  designation, 
if  the  capacity  in  which  he  acts  elsewhere  appears  in  the  certifi- 
cate.3 We  liave  already  seen  that,  as  a  general  rule,  his  ofiicial 
capacity  must  somewhere  appear,  either  from  the  body  of  the  cer- 
tificate or  from  the  attestation  clause,  as  the  instrument,  must,  on 
its  face,  appear  to  be  the  act  of  a  competent  person.  As  it  is  cus- 
tomary to  follow  the  signature  of  the  officer  with  his  official  title, 
the  purchaser  should  see  that  this  is  done  in  order  that  his  title  papers 
may  present  no  appearance  of  irregularity.  An  abbreviation  of  the 
official  title  in  common  use,  such  as  "  J.  IV  or  ''N.  P.,"  will  suffice.4 

§  39  (<j)  Seal  nf  officer.  "Where  by  statute  it  is  provided  that  the 
certificate  shall  be  under  the  signature  and  seal  of  the  certifying 
officer,  the  omission  of  the  seal  will  l>e  fatal.5  This  formality,  how- 
ever is  not  required  in  all  the  States,  and  where  not  required  the 
absence  of  the  seal  is  immaterial.6  It  has  been  held  that  if  by  the 
law  of  a  State  in  which  an  acknowledgment  is  taken  a  seal  by  the  cer- 
tifying officer  is  unnecessary,  the  want  of  such  a  seal  will  l»e  no 
objection  to  the  title  in  another  State  in  which  the  land  lies.  In 

'Marstonv.  Bradshaw.  1*  Mich    <l;  inn  Am    !><•<•.  152. 

»  McCraven  T.  McOuire,  23  Miss.  100. 

» Brown  v.  Farntr.  3  Ohio,  140.  The  omission  <>f  the  letters  "  N.  P."  after  the 
signature  of  a  notary  public  does  not  affect  thc»  validity  of  the  certificate.  I>ake 
Erie  &  W.  R.  Co.  v.  Whithara,  155  HI.  514;  40  N.  E.  Rep.  1014. 

4  Final  v.  Backus,  18  Mich.  218;  Russ  v.  Wingnte,  30  Mis*.  440;  Rawley  T. 
BemHn.  12  111.  198. 

•Ibwon  v.  Brock.  12  111.  278;  52  Am.  Dec.  400;  Hastings  v.  Vaughn.  5  Cal. 
315;  Booth  v.  Cook,  20  111.  129.  The  notary's  seal  must  appear,  when  his  certifi- 
cate declares  that  he  hat  affixed  it;  otherwise  the  certificate  is  invalid.  Bullanl 
v.  Perry.  28  Tex.  347.  An  abstract  of  title  contained  a  memorandum  of  a  cer- 
tificate of  acknowledgment  KB  follows:  "Certif.  of  acknt.  by  notary  public  for 
said  county  is  signed  'B.  R.  Randall.  L.  8..  Notary  Public."1  Held,  that  the 
abstract  sufficiently  showed  H  crrtiflcnte  under  official  seal.  Bin-kit- n  T.  Hasterlik. 
155  111.  428;  40  N.  E.  Rep.  561. 

•Parnum  T.  Buffum.  4  C'uali.  (Mass.)  260;  Baze  T.  Arper.  6  Minn.  220.  None 
is  required  in  Virginia;  the  court  takes  judicial  notice  of  the  acts  of  domestic 
notaries  public.  Sec,  also.  Powers  v.  Bryant,  7  Port.  (Ala.)  9. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   73 

other  words,  that  the  validity  of  the  certificate  in  this  respect  is  to 
be  governed  by  the  law  of  the  place  where  the  acknowledgment  was 
taken.1  Where  by  statute  the  officer  is  required  to  have  a  seal,  it 
must  be  an  instrument  capable  of  making  a  durable  impression  upon 
paper  or  some  tenacious  material  attached  to  the  paper.2  If  the 
officer  be  one  who  is  not  required  by  statute  to  have  a  seal,  it  is 
apprehended  that  a  scroll  or  scrawl,  recognized  by  him  in  the  instru- 
ment as  a  seal,  will  suffice.  If  the  form  of  the  officer's  seal  be  pre- 
scribed by  statute,  it  must  of  course  conform  to  the  requirement. 
If  there  be  no  provision  upon  the  subject,  any  device  that  he  chooses 
to  adopt  will  suffice.  It  is  better,  of  course,  that  the  seal  should 
state  the  name  and  office  of  the  officer,  but  the  better  opinion  seems 
to  be  that  these  particulars  are  not  indispensable.8  The  fact  that 
the  seal  precedes  instead  of  follows  the  signature  of  the  officer  is 
immaterial.4 

§  4:0.  (r)  Surplusage,  clerical  mistakes.  If  a  certificate  of 
acknowledgment  is  in  all  other  respects  sufficient,  the  fact  that  it  con- 
tains statements  or  recitals  not  required  by  law  is  immaterial.  Mere 
surplusage  or  redundancy  leaves  the  certificate  unimpaired.5  If  the 
instrument  contains  all  that  the  law  requires,  the  fact  that  it  is  in 
the  form  of  a  jurat  is  of  no  consequence.6  Nor  will  an  obviously 
clerical  mistake,  such  as  the  substitution  of  a  word  which  does  not 
make  sense  for  the  one  used  in  the  statute,7  nor  the  omission  of  an 
immaterial  word,  especially  where  the  omission  is  a  plain  oversight 
or  inadvertence,  such  as  the  failure  to  insert  a  pronoun  in  a  blank 
left  for  the  purpose,8  make  the  certificate  worthless.  But  with 
respect  to  clerical  mistakes  and  omissions  there  has  been  much  ques- 

i  Bucklen  v.  Hasterlik,  155  111.  423;  41  N.  W.  Rep.  561. 
1  Mason  v.  Brock,  12  111.  273;  52  Am.  Dec.  490. 

•Mason  v.  Brock,  12  111.  273;  52  Am.  Dec.  490.  But  see  In  re  Nebe,  11  Nat. 
Bankruptcy  Reg.  289. 

4  Gilchrist  v.  Dilday,  152  111.  207;  38  N.  E.  Rep.  572. 

5  Chester   v.  Rumsey,  26   111.  97;    Stuart  v.  Dutton,  39  111.  91;    Whitney  v. 
Arnold,  10  Cal.  531. 

e  Ingraham  v.  Grigg,  13  Sm.  &  M.  (Miss.)  22. 

1  Calumet  &  Chicago  Canal  Co.  v.  Russell,  68  HI.  426. 

8  Dickerson  v.  Davis,  12  Iowa,  353.     In  Spitznagle  v.  Van  Hessch,  13  Neb.  333, 

the  omission  of  the  words  "and  deed"  from  the  clause  "  voluntary  act  and 

deed"  was  held  immaterial.     So,  also,  where  the  word  "deed"  was  inserted  and 

the  word  "act"  omitted.     Stuart  v.  Dutton,  39  111.  91.     The  omission  of  the 

10 


74  MARKETABLE    TITLE    TO    KKAI.    ESTATE. 

tion  and  doubt  as  to  what  of  them  are  and  what  are  not  material. 
The  omission  of  the  word  "  acknowledged,'" !  though  obviously 
inadvertent,  has  been  held  fatal  to  the  certificate,  and,  on  the  other 
hand,  the  absence  of  the  word  "  known  "  from  the  clause  "  fully 
made  known  to  her,"2  has  been  held  a  mere  clerical  omission.  And 
in  other  cases  omissions  which  one  court  has  treated  as  immaterial 
have  been  by  other  courts  regarded  as  of  vital  importance.  Under 
these  circumstances  there  can  be  no  doubt  that  a  purchaser  would 
be  justified  in  refusing  to  accept  the  conveyance  if  the  certificate  of 
acknowledgment  attached  thereto  contained  either  clerical  errors  or 
inadvertent  omissions.  The  vendor  cannot  force  upon  him  a  deed 
which,  though  it  may  be  finally  adjudged  sufficient,  is  executed  or 
acknowledged  in  such  a  manner  as  to  cast  a  doubt  upon  the  title. 
Generally  the  statutes  of  the  different  States  prescribe  the  several 
elements  of  the  acknowledgment  and  the  duties  of  the  certifying 
officer,  and  give  a  form  in  which  the  certificate  may  be  made  by  the 
officer.  Where  this  is  done,  and  the  form  given  omits  some  phrase 
or  expression  used  in  the  statute,  the  form  governs,  and  a  certificate 
which  literally  follows  the  latter  will  be  sufficient.3  The  body  of 
the  deed  may  sometimes  be  referred  to  for  the  purpose  of  supplying 
omissions  from  the  certificate.4  Thus,  where  the  statute  required 
that  the  certificate  should  show  that  the  grantor  acknowledged  that 
he  signed,  sealed  and  delivered  the  deed  "  on  the  day  therein  men- 
tioned, and  the  certificate  contained  no  such  recital,  it  was  held  that 
the  omission  was  cured  by  reference  to  the  deed,  which  bore  the 
same  date  as  the  certificate.5 

words  "  for  the  consideration  and  purposes  therein  set  forth  "  is  fatal.  Jacoway 
T.  Oault,  20  Ark.  190;  88  Am.  Dec.  494.  A  certificate  that  the  grantors  acknowl- 
edged a  paper  "to  be  their  act  and  deed"  instead  of  following  the  statutory 
form,  that  they  "signed,  sealed  and  delivered,"  etc.,  is  sufficient.  Den  v.  Ham- 
ilton, 12  N.  J.  L.  109. 

1  Stanton  T.  Button.  2  Conn. 

•  Hornbeck  v.  Building  Assn.,  88  Pa.  St.  64. 

•Belcher  v.  Weaver,  46  Tex.  293;  26  Am.  Rep.  M7.  Here  the  statute  pro- 
vided tlmt  the  wife  should  acknowledge  that  she  did  "  freely  and  willingly  sign," 
etc..  while  the  form  was  that  "she  hud  willinirly  signed."  etc..  omitting  the  word 
"  freely."  The  court  held  tlmt  the  word  fully  iiiidit  !><•  omitted  in  the  certificate, 
beauine  it  was  omitted  in  the  form. 

4  Bradford  v    D.iwson.  -J  Aln 

•Bradford  v.  DHWS..H.  »  Ala.  208;  Carter  v.  Chandron.  21  Ala.  72. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   75 

§  41.  (s)  Amendment  of  the  certificate.  It  will  doubtless  occur 
to  the  reader  that  in  most  cases  objections  to  the  sufficiency  of  a  certifi- 
cate of  acknowledgment  are  capable  of  easy  removal  by  the  tender 
of  a  new  certificate.  It  may  be,  also,  that  before  the  deed  has  been 
delivered  by  the  grantor  the  officer  may  legally  amend  his  certifi- 
cate,1 though  it  has  been  held  in  some  cases  that  after  the  paper 
has  been  signed  and  delivered  by  the  latter  his  powers  over  it  have 
ceased,  and  that  he  cannot  fill  up  blanks,  add  to,  nor  change  the 
instrument  so  as  to  make  it  conform  to  the  law.2  That  he  may  not 
do  this  scarcely  admits  of  doubt  in  a  case  in  which  the  deed  has 
been  admitted  to  record.3  But  it  is  not  easy  to  perceive  any 
grounds  upon  which  an  amendment  of  the  certificate  made  by  the 
officer  at  the  request  of  the  grantor  before  the  deed  was  delivered 
and  accepted  could  be  deemed  insufficient  or  invalid,  since  the 
rights  of  no  third  person  would  be  thereby  affected,  and  such  a 
request  would  be  itself  substantially  a  reacknowledgment  of  the 
deed.  However  this  may  be,  the  better  course  for  the  purchaser  is 
to  insist  upon  a  reacknowledgment  of  the  deed.4  This,  in  most 
cases,  would  be  as  feasible  as  an  amendment  of  the  certificate,  and 
would  leave  no  pretext  for  an  objection  to  the  title  on  the  part  of 
future  purchasers,  ft  is  hardly  necessary  to  say  that  the  acknowl- 
edgment of  a  deed  must  be  a  matter  of  record  and  cannot  be  proved 
by  parol  testimony.5  Nor  can  a  certificate  which  is  defective  in  a 
material  particular  be  cured  by  evidence  aliunde?  Neither  is 
parol  evidence  admissible  to  contradict  a  certificate  of  acknowledg- 
ment in  a  collateral  proceeding.7  But  of  course  the  certificate  may 
be  attacked  in  a  direct  proceeding  on  the  ground  that  the  acknowl- 
edgment was  procured  by  duress  or  fraud.8  The  certificate  must 

1  There  is  a  dictum  to  this  effect  in  Elliot  v.  Piersol.  1  Pet.  (U.  S.)  328. 

« Wedel  v.  Herman,  59  Cal.  507;  Merritt  v.  Yates,  71  111.  639;  23  Am.  Rep.  128. 

3  Elliot  v.  Piersol,  1  Pet.  (U.  S.)  328;  Hours  v.  Zachariah,  11  Cal.   281;  70  Am. 
Dec.  779,  dictum,  the  deed  in  that  case  having  been  recorded  before  the  amend- 
ment was  made. 

4  In  Merritt  v.  Yates,  71  111.  636;  23  Am.  Rep.  128,  it  is  said  that  the  only  way 
in  which  the  defective  certificate  can  be  remedied  is  by  reacknowledgment 

&Pendleton  v.  Button,  3  Conn.  406;  Hayden  v.  Westcott,  11  Conn.  129. 
"O'Ferrall  v.  Simplot.  4  Iowa,  381. 

7  This  principle  is  recognized  by  statute  in  Kentucky.  Keith  v.  Silberberg, 
(Ky.)  29  S.  W.  Rep.  316. 

8Grider  v.  Land  Mortgage  Co..  99  Ala.  281;  12  So.  Rep.  775. 


76  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

set  out  in  terms  or  in  substance  all  that  the  statute  requires.  An 
acknowledgment  certified  to  have  been  made  "  according  to  the  act 
of  the  assembly  in  that  case  made  and  provided  ?'  is  insufficient.1 

§  42.  Unauthorized  reservations  or  restrictions.  The  pur- 
chaser may  reject  a  conveyance  which  contains  reservations, 
restrictions  or  conditions,  not  authorized  by  the  contract  under 
which  the  conveyance  was  drawn.2  Thus,  under  an  agreement 
by  which  he  is  to  receive  a  "  good  and  sufficient  warranty  deed," 
the  i/urehaser  may  reject  a  deed  which  reserves  an  easement  in 
the  land  to  a  third  person,  though  lie  knew  of  the  existence  of 
the  easement  at  the  time  the  contract  was  made.3  So,  also,  where 
the  deed  contained  an  unauthorized  reservation  of  a  one-acre 
graveyard  on  the  premises.5* 

The  conveyance  may  l»e  rejected  if  it  does  not  include  any  ease- 
ment or  servitude  to  which  the  purchaser  may  be  entitled  under  the 
contract  in  other  lands  of  the  vendor.4 

The  purchaser  is  not  bound  to  accept  a  deed  containing 
erasures,5  nor  one  containing  a  blank,  left  for  the  consideration 
' 


mone. 


A  purchaser  entitled  to  the  covenants  implied  from  the  use  of 
the  words  "  grant  and  convey,"  cannot  be  required  to  accept  a 
de<nj  in  which  the  grantor  limits  the  effect  of  those  covenants  by 
a  clause  that  he  warrants  the  title  "  against  the  lawful  claims  «£ 
all  persons  claiming  by,  through,  or  under  him,  but  no  other." 

A  purchaser  who  buys  with  the  understanding  that  he  is  to 
receive  a  title  free  from  incumbrances  may  insist  upon  a  convey- 
ance fnv  from  restrictive  covenants.7* 


v.  Yotmp,  2  Harr.  A  McH.    (Md.)    3R. 

v.  Daly,  56  Pm.  St.  245.  Sec  3  Wa*hb.  Real  Prop.  481  (ABB). 
i  ;.  ,1-Ni.  in  v.  Henitley.  4  Cal.  App.  444,  88  P.  507;  Grqgp  v.  Carey,  4  Cal. 
App.  354.  8*  P.  282. 

Alitrr,  if  the  restriction*  ho  authorized  hy  the  contract  of  sale.     Millikan 
v.  Hunter.  1*1)  Ind.  149.  100  N.  E.   1041. 
1  Morgan  v.  Smith.  1  1  111.  104. 

»•  Ittnegra**  Hearty  Co.  v.  Sholton.  148  Ky.  6»W.  147  S.  W.  33,  41  L.  R.  A. 
IX.  S.i  W4. 

\\i\Mm  v.  McNeal.  10  Watt*  (Pa.).  422. 
Marklry  v.  Swart  zlamli-r.  8  W.  A   8.    (Pa.)    172. 
Moorr  v.   Reckharo.  4   Bhin.    (Pa.)    1. 

Tnion  Miit.  Life  Inn.  Co.  v.  Crowl.  (Tex  Civ.  App.)   67  S.  W.  901. 
•Kr«h  v.  \Va«aiTM>r,  75  X.  J.  Rq.  loft,  "1  All.  404. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.  TT 

In  a  case  in  which  the  vendor  leased  the  premises  to  a  stranger 
after  the  sale,  and  the  purchaser,  by  the  terms  of  the  contract, 
was  entitled  to  a  warranty  deed,  it  was  held  that  he  might  reject 
a  deed  purporting  to  be  made  subject  to  the  lease,  or  describing 
the  property  as  "  being  the  same  now  occupied,  by  "  the  lessee, 
since  those  clauses  might  possibly  be  construed  as  excepting  the 
lease  from  the  operation  of  the  warranty.1 

§  43.  Waiver  of  Objections.  The  purchaser  should  make  his 
objections  to  the  deed,  either  in  respect  to  form  or  substance,  when 
tendered.  If  he  fail  in  this  respect  it  has  been  held  that  he  thereby 
waives  all  objections.2  And  when  the  duty  devolves  upon  the  pur- 
chaser to  tender  a  deed  it  has  been  held  that  the  grantor  must  make 
his  objection  to  the  deed,  if  any,  within  a  reasonable  time.  He 
cannot  set  up  an  objection  to  the  deed  for  the  first  time  when 
sued  for  a  breach  of  contract  or  for  specific  performance.2  If  the 
purchaser  takes  possession  and  accepts  a  conveyance  as  satisfac- 
tory he  cannot  afterwards  object  that  it  is  insufficient.4  And  if  a 
deed  be  valid,  but  objectionable  to  the  purchaser  in  form,  he  must, 
if  he  have  an  opportunity  for  inspection,  make  his  objection  at 
the  time  of  the  tender,  or  it  will  be  waived.5  In  a  case  in  which 
the  purchaser  took  possession  under  a  deed  to  which  he  made  no 
objection,  and  afterwards  refused  to  return  the  deed,  it  was  held 
that  he  could  not  thereafter  abandon  the  contract  and  recover 
back  his  deposit.6  If  the  purchaser  makes  no  objection  to  the 
deed  when  tendered,  but  merely  says  that  he  is  unable  to  pay  the 
purchase  price,  he  will  be  held  to  have  waived  all  objection  to  the 
deed,  even  though  not  drawn  in  conformity  to  the  contract.7  In 
such  a  case  he  will  also  be  deemed  to  have  waived  any  objection 
to  specific  performance,  based  upon  the  existence  of  an  incum- 

1  Bruner  v.  Diamond,  65  111.  App.  476. 

2  Moak  v.  Bryant,  51  Miss.  560;  Dresel  v.  Jordan,  104  Mass.  407;  Kenniston 
v.  Blakie,  121  Mass.  552;  Bigler  v.  Morgan,  77  N.  Y.  312;  Royal  v.  Dennison, 
109   Cal.   558;    42   Pac.   39;    Ellis   v.   Lockett,    100   Ga.   719;    28   S.    E.   452. 
Groden  v.  Jacobson,  114  1ST.  Y.  Supp.  183,  129  App.  Div.  508. 

3  Morgan  v.   Stearns,  40  Cal.  434. 
4Griswold  v.  Brock,  43  111.  App.  203. 

6  Stryker  v.  Vanderbilt,  25  N.  J.  L.  68. 
0  Kenniston  v.  Blakie,  121   Mass.  552. 

7  Moak  v.  Bryant,  51  Miss.  560. 


78  MARKETABLE    TITLE    TO    REAL    ESTATE. 

hrance  on  the  property  at  the  time  the  deed  was  tendered.1  If  he 
retains  the  deed  without  objection  to  its  sufficiency  he  cannot 
afterwards  defend  a  suit  for  the  purchase  money,  on  the  ground 
that  the  deed  was  not  properly  acknowledged.1 

The  purchaser  objecting  to  the  form  and  contents  of  the  deed 
tendered  by  the  vendor,  must  allow  a  reasonable  time  in  which 
the  objections  may  l>e  removed.3 

'Ashhauph  v.  Murphy,  90  111.  182. 

'Morrison  v.  Faulkner.  (Tex.)  21  S.  W.  Rep.  984.  If  a  deed  is  defective 
for  want  of  a  seal  or  other  necessary  formality  it  will  be  reformed,  even  as 
•gainst  a  purchaser  for  valuable  consideration,  if  he  had  notice  of  the  plain- 
tiff** riphtH.  Ma-tin  v.  Halley,  61  Mo.  196;  Wadsworth  v.  Wendell,  5  Johns. 
Ch.  (X.  Y.)  224. 

»O«o.  H.  Paul  Co.  v.  Shaw,  86  Kan.  136,  119  Pac.  546. 


CHAPTER  V. 

CAVEAT  EMPTOR 

GENERAL  OBSERVATIONS.    §  44. 

APPLICATION  OF  THE  MAXIM  TO  JUDICIAL  SALES. 

Inherent  defects  of  title.    §  45. 

Effect  of  confirmation  of  the  sale.     §  46. 
Exceptions  to  the  rule.     §  47. 

Fraud  as  it  affects  rights  of  purchasers  at  judicial  sales.     §  48. 
Errors  and  irregularities  in  the  proceedings.    Collateral  attack.    §  49. 
Want  of  jurisdiction.     §  50. 
Matters  occurring  after  jurisdiction  has  attached.    §  51. 

Fraud  as  ground  for  collateral  attack.     §  52. 
SALES  BY  EXECUTORS  AND  ADMINISTRATORS. 
Sales  in  pursuance  of  testamentary  powers.     §  53. 
Sales  in  pursuance  of  judicial  license.     §  54. 
Fraud  on  the  part  of  personal  representative.    §  55. 
"Want  of  jurisdiction.    Errors  and  irregularities.    §  56. 
SHERIFF'S  SALES. 

Want  of  title  in  execution  defendant. 
General  rules.     %  57. 
Exceptions.     §  58. 
Fi'audulent  representations.     §  59. 

Rights  of  purchaser  from  purchaser  under  execution.    §  60. 
Title  under  void  judgment.    §  61. 
Title  under  void  sale.     §  62. 
TAX  SALES.     §  63. 

SALES  BY  TRUSTEES,  ASSIGNEES,  ETC.     §  64. 

SUBROGATION   OF  PURCHASER   AT    JUDICIAL  AND  MINISTE- 
RIAL SALES. 
Where  the  sale  is  void.    §  65. 
Where  the  sale  is  valid.    §  66. 

§  44.  GENERAL  OBSERVATIONS.  The  maxim  caveat  emptor  (let 
the  buyer  beware),  as  it  respects  titles  to  land,  is  peculiar  to  the 
common  law.  It  is  unknown  to  the  civil  law.1  The  principal  appli- 
cations of  the  maxim  are  :  (1)  In  the  denial  of  relief  to  a  purchaser 
of  lands  who  has  accepted  a  conveyance  of  a  defective  title  without 
covenants  of  indemnity  from  the  grantor ; 2  (2)  In  charging  a  pur- 
chaser with  laches  or  negligence  in  failing  to  avail  himself  of  means 

1  Co.  Litt.  102a;  Brown  Leg.  Max.  768. 
1  Phillips  v.  Walsh,  66  N.  C.  233. 

[79] 


bO  MAKKETAISLK    TiTI.K    Tl»    KKAI.    ESTATE. 

for  ascertaining  the  validity  of  the  title ; '  (3)  To  designate  a  class  of 
caries  in  which  it  is  conclusively  presumed  that  the  purchaser  agreed 
to  take  just  such  title  as  the  vendor  had,  and  in  which  he  is  required 
to  pav  the  purchase  money,  though  the  title  which  he  is  to  receive 
will  he  utterly  worthless,  and  though  the  contract  still  remains 
executory.  As  a  consequence  of  this  doctrine,  in  the  latter  class  of 
cases  no  contract  on  the  part  of  the  vendor  that  his  title  is  good 
and  indefea.-ihle  will  be  implied  from  the  mere  relations  of  the  par- 
ties, contrary,  us  we  luive  seen,  to  the  general  rule  when  the  vendor 
contracts  in  his  own  right.  It  is  to  this  class  of  cases  that  oar  atten- 
tion will  be  directed.  Of  the  two  first-mentioned  class  of  cases 
there  is  nothing  to  be  observed  here,  the  obligation  of  the  purchaser 
to  protect  himself  by  covenants  for  title,  or  by  searches  for  defects, 
l>cing  elsewhere  considered  in  this  work. 

The  cases  to  which  the  rule  caveat  emptor  applies,  in  the  sense' 
that  the  purchaser  will  be  deemed  to  have  entered  into  the  contract 
with  the  understanding  that  he  is  to  take  the  title,  such  as  it  is,  with- 
out an  express  contract  to  that  effect,  are  those  in  which  the  pur- 
chase was  made  at  (1)  judicial  sales;  or  (2)  ministerial  or  fiduciary 
sales;  that  is,  sales  by  executors,  administrators  or  other  personal 
representative!  under  judicial  license ;  sales  by  executors  and  admin- 
i.-trators  under  powers  conferred  by  the  will;  sales  by  trustees  and 
mortgagees;  sales  by  tax  collectors,  and  generally  any  sale  in  which 
the  vendor  acts  not  in  his  own  right,  but  in  a  fiduciary  (>r  ministerial 
character,  and  from  whom  the  purchaser  has  no  right  to  require 
general  covenants  for  title. 

§  4*».  APPLICATION  OF  THE  MAXIM  TO  JUDICIAL  SALES. 
Inherent  defect*  in  the  title.  A  judicial  sale  may  be  described  to  be 
a  sale  made  by  an  officer  of  a  court  of  justice  in  pursuance  of  an 
order  or  decree  of  *uch  court,  and  which  remains  incomplete  until 
ratified  or  confirmed  by  the  court.3  The  commissioner  or  other 
officer  making  the  sale  is  the  mere  agent  of  the  court  to  receive  and 
report  the  purchaser's  bid.8  Objections  to  the  title  by  a  purchaser 
at  a  judicial  sale  are  either  such  as  are  founded  upon  want  of 
jurisdiction,  or  errors  and  irregularities  in  the  proceedings  resulting 

1  PhilHfw  T    Wnhh.  Aft  N    ('.  288. 

•  I>n*t«irh  v   Stein.  41  Ohio  St.  70. 

*  Ilolirinao  T.  Cook.  19  Md.  875. 


CAVEAT    EMPTOB.  81 

in  the  decree  under  which  the  purchase  is  made,  or  such  as  are 
founded  upon  inherent  defects  in  the  title  independent  of  such  pro- 
ceedings, for  example,  the  existence  of  a  better  title  in  a  stranger 
than  that  which  the  court  undertakes  to  sell.  In  either  case  objec- 
tions to  the  title  must  be  made  before  the  sale  is  confirmed. 

§  46.  Effect  of  confirmation  of  the  sale.  It  has  been  said  that 
the  doctrine  caveat  emptor  applies  in  all  its  force  to  judicial  sales, 
that  is,  that  it  will  be  conclusively  presumed  that  the  purchaser  con- 
tracts to  take  the  title,  such  as  it  may  be.1  This  presumption,  how- 
ever, does  not  apply  until  the  sale  has  been  confirmed.  The  pur- 
chaser may  always  resist  the  confirmation  of  the  sale  on  the  ground 
that  the  title  is  bad,2  and  he  may  have  a  reference  to  a  master  to 

'Rorer  Jud.  Sales  (2d  ed.),  §§  150,  174,  476,  528,  602,  694,  923. 

Corwin  v.  Benham,  2  Ohio  St.  36. 

Hously  v.  Lindsay,  10  Heisk.  (Tenn.)  651. 

Brown  v.  Wallace,  4  Gill  &  J.  (Md.)  479. 

Casbon  v.  Faina,  47  Mo.  133;  Stephens  v.  Ells,  65  Mo.  456. 

The  reasons  for  this  rule  are  set  forth  in  the  following  extract  from  the 
opinion  of  the  court  in  Bishop  v.  O'Conner,  69  111.  431:  "  In  all  judicial  sales  the 
presumption  is  that  as  the  rule  ca,veat  emptor  applies,  the  purchaser  will  examine 
the  title  with  the  same  care  that  a  person  does  who  receives  a  conveyance  of  land 
by  a  simple  quit-claim  deed.  When  he  knows  there  are  no  covenants  to  resort  to 
in  case  he  acquires  no  title,  the  most  careless,  saying  nothing  of  the  prudent, 
would  look  to  the  title  and  see  that  it  was  good  before  becoming  a  purchaser  at 
such  sale.  Or  if  not,  he  must  expect  to  procure  it  on  such  terms  as  he  might 
sell  the  claim  for  a  profit.  As  well  might  a  person  purchasing  by  quit-claim 
deed  file  a  bill  to  be  reimbursed  on  the  failure  of  title  as  where  the  purchase  is 
made  at  a  sale  by  an  administrator.  Both  kinds  of  purchase  depend  upon  the 
same  rule.  It  is  the  policy  of  the  law  only  to  invest  a  sheriff,  master  in  chancery, 
or  administrator  in  making  sales  of  real  estate  with  a  mere  naked  power  to  sell 
such  title  as  the  debtor  or  deceased  had,  without  warranty,  or  any  terms  except 
those  imposed  by  law.  They  are  the  mere  instruments  of  the  law  to  pass  such, 
and  only  such,  title  as  was  held  by  the  debtor  or  intestate.  Then,  if  the  pur- 
chaser in  this  case  observed  but  ordinary  prudence,  he  had  the  title,  and,  as  a 
part  of  it,  the  proceedings  under  which  he  purchased,  examined,  and  whether  so 
or  not,  we  must  presume  that  he  determined  to  take  the  risk  of  the  title  upon 
himself.  We  have  no  hesitation  in  saying  that  the  rule  of  caveat  emptor  applies 
in  this  case  in  full  force." 

5  Sugd.  Vend.  (8th  Am.  ed.)  152;  Freeman  Void  Jud.  Sales,  §  48;  Rorer  Jud. 
Sales  (2d  ed.),  §  165;  Fryer  v.  Rockefeller,  63  N.  Y.  268;  Trapier  v.  Waldo,  16 
So.  Car.  276;  Toolc  v.  Toole,  112  N.  Y.  333;  Bird  v.  Smith,  101  Ky.  205;  40 
S.  W.  571. 

This  proposition  appears  to  have  been  limited,  in  Pennsylvania,  to  cases  in 
which  the  purchaser  has  been  deceived  or  misled.  De  Haven's  Appeal,  106  Pa. 


82  MARKETABLE    TITLE    TO    REAL    ESTATE. 

determine  whether  a  good  title  can  be  made.1  But  if  lie  permits 
the  sale  to  be  confirmed  without  objection,  he  cannot  afterward* 
refuse  to  pay  the  purchase  money  because  of  imperfections  in  the 
title,*  or  irregularities  in  the  proceedings  under  which  he  pur- 

-•  •  ..•:  dti  -  9efaug>  Appml.  I4\V.  N  C  I'.-,  4;-.  Binfurd's  Appeal,  IMF* 
St.  435;  30  All.  Hep.  298. 

At  a  judicial  sale  the  purchaser  buys  at  his  peril,  as  in  ordinary  sales  under 
execution,  the  only  difference  being  that  in  sales  by  the  chancellor  through  his 
commissioner  the  purchaser  may  have  relief  for  defective  title  before  the  sale  is 
confirmed,  but  not  after.  Humphrey  v.  Wade,  84  Ky.  391:  1  S.  W.  Rep.  648. 

A  purchaser  at  a  judicial  sale  cannot,  in  case  of  the  existence  of  judgnu  m 
creditors  not  before  the  court,  be  required  to  complete  his  purchase  without  their 
concurrence.  Governor  of  Hospital  v.  West.  Imp.  Cominrs..  1  DeG.  &  J.  531.  \l< 
must  see  that  all  judgment  creditors  have  come  in  under  the  decree,  for  those 
who  have  not  done  so  may  subject  the  land  in  his  hands  to  the  payment  of  their 
judgment.  2  Sugd.  Vend.  (8th.  Am.  ed.)  156  (521). 

Rule  mrtiit  tmptor  does  not  apply  at  judicial  sale  us  at  execution  sale,  until 
after  confirmation.  Charleston  v.  Blobme,  15  So.  Car.  124:  40  Am.  Rep.  690. 

1  2  Jones  Mortgages,  £  1648;  Rorer  on  Jud.  Sales  (2d  ed.),  £  150;  Gordon  v. 
2  Mi-Cord  Ch.  (S.  C.)  151.  In  England  the  title  is  directed  to  be  invest! 
gated  before  a  sale  in  chancery  is  made.  1  Sugd.  Vend.  (*th  Ain.  ed.)  13.  The 
court  (  ontirnis  judicial  sales,  and  in  so  doing  exercises  large  powers  in  correcting 
errors.  Reasonable  time  is  always  given  for  the  examination  of  title,  and,  if 
necessary,  a  reference  will  be  ordered.  Mitchell  v.  Pinckney,  13  So.  Car.  203, 

The  right  of  the  purchaser  to  have  a  reference  of  the  title  is  denied  in  Anderson 
v   F..ulk. .  2  Harr.  &  G.  (Md.)348,  858.     In  re  Browning,  2  Paige  Ch.  .X.  Y.)  64, 
a  referem  «•  of  title  was  dint-ted  on  the  application  of  the  purchaser  afUr 
flrninti.»n  of  the  sale. 

•  2  Jones  on  Mortgages,  §  1647;  Freeman  Void  Jud.  Sali-  i  4-.  Wood  v.  Mason, 
SSumn.  tl'.  S.1318. 

Tbrelkeld  v.  Campbell.  2  Grat.  (Va.)  198;  44  Am.  Dec.  384;  Thomas  v.  David 
•on.  76  Va.  338;  Hickson  v.  Rucker,  77  Va.  135:  Long  v.  Weller,  29  Grat. 

WaUon  T.  Hoy.  28  Grat  (Va.)  698;  Young  v.  McClung,  9  Grat.  (Va.)  336; 
Daniel  r.  Leitch.  13  Grat.  (Va.)  195. 

tiin-_'s  v.  .Tonkin-.  M   Al.-i.  •_' Vi :    IVrkins  v.  White.  7  Ain.   S.'>.~>. 

\\illiann  v.  Glenn,  87  Ky.  87;  7  S.  W.  Rep.  CIO;  Fox  v.  McGorfwin.  21 
K>.  !.  i:.  IT:  W.  :>15. 

;nt.  JJ  Knn».  344. 
liarron   v.   Mullin.  21    Minn.   374. 
Drrabach  v.  Stein.  41   Ohio  St.  70. 
Capehart  r.  Dm\.-ry.   10  W.  Va.   130. 
\\  i'lianuton  v.  Ki.-l.l.  2  Sandf.  Ch.  (N.  Y.)  583;  Hammond  v.  Chamberlain. 

W.  718. 

In  Uorrr  on  .fii'ln  2el  ed.  J   K,M     it  i-  -..ii-1  th.M  M  -  I'    -i--1!  tho  rule 

tevt'i  ••  r  tlio  (jmlioii'  f  the  pur- 

eluu»  monrjr  m  v  of  the  dr«-<|.  i;  ..«>  fmii<I :  yrt  tl  ••  luivor,  if  he 


CAVEAT    EMPTOfi.  CQ 

oliased.1  In  this  respect  his  failure  to  make  seasonable  objection  to 
the  title  has  the  same  effect  as  would  his  acceptance  of  a  conveyance 
without  covenants  for  title.  It  has  also  been  held  that  if  the  pur- 
chaser bid  with  notice  of  defects  in  the  title,  he  cannot  set  up  those 
defects  as  a  ground  for  resisting  a  confirmation  of  the  sale.2  We 
shall  see  that  the  same  rule  prevails  in  cases  of  private  sale.3  It 
seems  to  be  the  better  opinion  that  confirmation  of  the  sale  is  con- 
clusive upon  the  purchaser,  whether  he  had  or  had  not  notice  of  the 
defective  title.  It  is  certainly  so  where  he  had  notice  of  the  defect,4 
or  wherever,  by  reasonable  diligence,  he  might  have  obtained  notice, 

discover  the  defect  beforehand,  will  not  be  compelled  to  complete  the  sale,  "citing 
Ormsby  v.  Terry,  6  Bush  (Ky.),  553,  a  case  which  seems  to  decide  no  more  than 
that  the  court  will  not  confirm  the  sale  and  compel  the  purchaser  to  execute  his 
bonds  for  the  deferred  payments  of  the  purchase  money  if  the  title  be  bad  and 
the  purchaser  object.  It  is  not  probable  that  more  than  this  last  proposition  is 
intended  by  the  author  referred  to,  since  the  rule  is  almost  universal,  as  has  been 
seen,  that  the  maxim  caveat  emptor  applies  in  its  fullest  extent  after  the  confirma- 
tion of  a  judicial  sale,  whether  the  purchase  money  has  or  has  not  been  paid, 
except  in  certain  cases  where  the  decree  or  judgment  under  which  the  sale  was 
made  was  void  on  the  ground  of  fraud  or  want  of  jurisdiction,  or  where  the  sale 
itself  was  tainted  with  fraud;  and  except,  perhaps,  in  some  of  the  States,  where 
the  purchaser  has  been  evicted  and  the  fraud  arising  from  the  sale  remains  undis- 
turbed in  the  hands  of  the  court,  or  in  the  hands  of  the  purchaser. 

After  confirmation  of  a  judicial  sale  it  cannot  be  avoided  in  a  collateral  pro- 
ceeding by  showing  defects  in  the  notice  of  sale  (Wyant  v.  Tuthill,  17  Neb.  495: 
23  N.  W.  Rep.  342),  or  that  security  for  the  payment  of  the  purchase  money 
was  not  required  (Wilkerson  v.  Allen,  67  Mo.  502);  or  that  the  officer  who 
made  the  sale  had  no  authority  for  that  purpose  (Core  v.  Strieker,  24  W.  Va.  689); 
or  that  he  departed  from  the  prescribed  order  of  sale  (McGavock  v.  Bell,  3  Coldw. 
[Tenn.]  512);  or  that  the  appointment  of  the  selling  officer  was  invalid.  Mech. 
Sav.  &  B.  L.  Assn.  v.  O'Conuer,  29  Ohio  St.  651. 

It  cannot  be  denied  that  the  rule  stated  in  the  text  may  produce  hardship  in 
some  cases,  especially  where  by  statute  a  confirmation  of  the  sale  is  permitted  to 
be  made  by  a  judge  at  chambers  or  during  vacation  of  the  court,  on  motion  of  a 
party,  and  notice  to  those  interested,  in  which  case  the  interval  between  the  sale 
and  the  confirmation  is  usually  short.  Of  course,  however,  if  the  motion  be 
made  by  the  purchaser,  and  the  title  should  turn  out  to  be  defective,  he  has  no 
one  but  himself  to  blame,  as  common  prudence  would  dictate  that  he  satisfy 
himself  about  the  title  before  moving  to  confirm  the  sale. 

1  Jennings  v.  Jennings,  9  Ala.  285;  Wilson  v.  Raben,  24  ]STeb.  368;  38  N.  W. 
Rep.  844. 

2  Riggs  v.  Pursell,  66  N.  Y.  193;  74  N.  Y.  371.    In  Carneal  v.  Lynch,  91  Va. 
114;  20  S.  E.  959,  the  purchaser  objected  to  confirmation  of  the  sale  on  the 
ground  that  the  property  encroached  2y2  inches  on  a  street.     But  as  a  map 
was  exhibited  before  the  sale  showing  the  encroachment,  which  map  he  saw 
but  did  not  examine  closely,  he  was  required  to  take  the  property. 

3  Post,  "  Waiver  of  Objections,"  §  85. 

4  Jennings  v.  Jenkins.  9  Ala.  285,  291. 


>4  MARKETABLE    TITLE    TO    REAL    ESTATE. 

a*  where  the  defect  apj>ears  from  records  or  documents  accessible 
to  him.1  A  purchaser  at  a  judicial  sale  is  presumed  to  have  notice 
of  a  want  of  jurisdiction  appearing  from  the  record  of  the  proceed- 
ings under  which  he  purchased.8  It  is  to  he  observed  that  the 
maxim  caveat  emptor  applies  as  well  in  equity  as  at  law.  Failure 
of  title  under  judicial  or  ministerial  sales,  apart  from  any  question 
of  fraud,  mistake  or  surprise  in  the  procuration  or  rendition  of  the 
judgment  under  which  the  sale  was  made,  or  fraud  or  mistake  in 
the  sale  itself,  affords,  after  confirmation  of  the  sale,  no  ground  for 
relief  in  equity  against  the  obligation  of  the  contract.3  A  pur- 
chaser at  a  judicial  sale  may,  before  confirmation,  raise  the  objec- 
tion that  the  title  is  unmarketable ;  he  is  not  bound  to  show  that 
it  is  absolutely  bad.4  He  can-not  be  required  to  take  a  title  which 
he  must  support  by  bill  of  injunction  against  a  third  person.5 
Generally,  a  purchaser  by  private  contract  cannot  be  compelled 
to  take  an  equitable  title,'  but  the  rule  is  otherwise,  at  least  in 
England,  in  case  of  purchases  under  decree  in  chancery.7  A 
purchaser  at  a  judicial  sale  cannot,  of  course,  object,  after  confir- 
mation of  the  sale,  that  the  title  is  unmarketable  or  doubtful.8 

1  Smith  v.  Winn,  38  8.  Car.  188;   17  S.  E.  Rep.  717. 

1  Campbell  v.  \fr-Caban.  41  111.  445.  It  is  the  business  of  a  purchaser  at  a 
judicial  Hale  to  see  that  all  the  persons  who  are  necessary  tn  convey  the  title 
are  before  the  court,  and  that  the  sale  is  made  according  to  the  decree.  2 
Daa.  (  h.  Pr.  1456;  Daniel  v.  Leitcli,  13  (5 rat.  (Va.)  195. 

'Long  v.  Waring.  25  Ala.  625;  McCartney  v.  King,  25  Ala.  681:  Holmes 
T.  Sharer,  78  111.  578;  Hand  v.  Grant,  10  Sm.  &  M.  (Miss.)  514;  43  Am. 
Dec.  528.  A  purcliaser  at  a  judicial  sale  cannot  enjoin  the  collection  of  the 
purchase  money  on  the  ground  that  the  title  has  failed.  McManus  v.  Keith, 
49  111.  388;  Threlkehl  v.  Campbell,  2  Grat.  (Va.)  198;  44  Am.  Dec.  384. 

*&•  post,  chapter  31,  where,  also,  is  considered  what  matters  render  a 
title  doubtful.  Handy  v.  Waxter,  (Md.)  23  Atl.  Rep.  1035;  McCaffery  v. 
Little,  20  App.  D.  C.  116;  Trust  Co.  v.  Muse,  4  App.  D.  C.  12. 

•1  Sugd.  Vend.  (8th  Am.  ed.)   593;  Shaw  v.  Wright,  3  Ves.  22. 

4  Pout,  rh.  30. 

'  1  Kngd.  Vend.  (8th  Am.  ed.)  152.  The  rule  that  a  purchaser  will  not  be 
compelled  to  take  an  equitable  title  does  not  extend  to  estates  sold  under  the 
dacvw  of  a  court  of  equity,  where  the  legal  title  is  Tested  in  *n  infant.  1 
Sugd.  Vend.  592,  at  y.  604,  it  is  said  that  this  "  anomaly  "  ia  removed  by 
rtatvtr,  enabling  the  court  to  make  a  pood  title.  In  Bryan  v.  Read,  1  Dev. 
&  Bat.  Kq.  (X.  C.)  78,  86,  it  was  held  that  a  purchaser  at  a  judicial  sale 
umlrr  decree  against  an  infant  could  not  be  compelled  to  complete  the  con- 
tract, berau»«>  the  infant  might  *how  cauw  against  the  decree  when  of  age. 

•Boorum  v.  Tucker,   (X.  J.  Eq.)   26  Atl.  Rep.  456. 


CAVEAT    EMPTOR.  85 

The  rule  caveat  emptor  applies  as  well  to  incumbrances  as  to 
defects  of  title  proper.  After  confirmation  of  the  sale  the  exist- 
ence of  an  incumbrance  upon  the  premises  is  no  ground  for  detain- 
ing the  purchase  money,  nor  for  recovering  it  back  from  the 
plaintiff  in  the  suit  in  which  the  sale  was  made,1  though,  as  will 
hereafter  be  seen,  the  purchaser  will  in  some  cases  be  subrogated 
to  the  rights  of  such  plaintiff  against  the  property  purchased,  or 
to  the  benefit  of  the  lien,  claim,  or  incumbrance  that  he  has  been 
compelled  to  pay  to  perfect  his  title,  or  to  the  satisfaction  of  which 
the  purchase  money  paid  by  him  has  been  applied.2  While  the 
purchaser  may  resist  the  confirmation  of  the  sale  on  the  ground 
that  the  title  is  defective,  he  will  not  be  relieved  from  his  bid  if 
the  title  can  be  perfected  within  a  reasonable  time.3  The  rule 
that  the  vendor  may  perfect  the  title  where  time  is  not  of  the 
essence  of  the  contract  especially  applies  in  eases  of  judicial  sale.4 
He  may  also  be  required  to  take  the  title,  with  compensation 
or  abatement  of  the  purchase  money,  in  case  of  failure  of  title 
to  a  small  portion  of  the  property  not  material  to  the  enjoyment 
of  the  rest.5 

The  objection  that  there  are  liens  on  the  property  cannot  be 
made  where  the  lienholders  are  parties  to  the  suit  in  which  the 
property  was  sold,  with  a  right  to  have  the  proceeds  applied  to 
the  satisfaction  of  their  liens.6 

§  47.  Exceptions  to  the  rule  caveat  emptor.  It  is  true,  as  a 
general  rule,  that  a  purchaser  at  a  judicial  sale  cannot  detain  or 
have  restitution  of  the  purchase  money  on  the  ground  that  the  title 
is  defective,  after  the  sale  has  been  confirmed.  But  exceptions 
have  been  made  to  this  rule  in  cases  of  mis-taken  or  fraudulent 

1  Farmers'  Bank  v.  Martin,  7  Md.  342;  Farmers'  Bank  v.  Peter,  13  Bush 
(Ky.),  594;  Williams  v.  Glenn,  87  Ky.  87;  7  S.  W.  Rep.  610;  Worthington  v. 
McRoberts,  9  Ala.  297. 

2  Post,  this  chapter,  "Subrogation,"  §§  65,  66. 
"Ormsby  v.  Terry,  6  Bush   (Ky.),  553. 

4  Thomas  v.  Davison,  76  Va.  342.  In  Lamkin  v.  Reese,  7  Ala.  170,  it  was 
held  that  though  the  court  had  no  jurisdiction  to  order  a  sale  of  the  land, 
yet,  if  the  purchaser  went  into  possession  he  could  not,  after  the  lapse  of  two 
years,  rescind  the  contract  if  the  heirs  were  then  able  and  willing  to  make 
him  a  title. 

5Riggs  v.  Pursell,  66  X.  Y.  193;  Merges  v.  Ringler,  54  JST.  Y.  Supp.  280; 
34  App.  Div.  415. 

«Blanton  v.  Ky.  Distilleries,  etc.,  Co.,  120  Fed.  318. 


86  MARKETABLE  TITLE  TO  REAL  ESTATE. 

representations  as  to  the  title  by  the  officer  making  the  sale,  and 
where  the  fund  arising  from  the  sale  remains  under  the  control 
of  the  court  Thus,  where  an  officer  of  the  court,  selling  under 
a  decree,  advertised  the  title  to  be  indisputable,  and  the  purchaser 
afterwards  discovered  that  there  was  in  fact  no  title,  it  was  held 
that  the  court  must,  even  after  confirmation  of  the  sale,  the  pur- 
chase money  not  having  been  distributed,  vacate  the  sale  on  peti- 
tion of  the  purchaser,  and  direct  that  the  purchase  money  be 
refunded  to  him.7  And  it  has  even  been  held,  irrespective  of  the 
question  of  fraud  or  mistake,  that  if,  while  the  fund  is  yet  in 
court,  the  purchaser  should  be  disturbed  in  his  possession,  or 
exposed  to  disturbance  by  one  having  a  clear  paramount  title  to 
the  estate,  which  was  unknown  to  the  purchaser  at  the  time  of  the 
sale,  the  sale  should  be  rescinded,  and  the  purchase  money  restored 
to  the  purchaser.2  The  same  case  decides  that  if  the  purchase 
money  has  been  distributed  by  the  court,  the  purchaser  can  have 
no  relief. 

It  has  been  held  that  the  rule  caveat  emptor  does  not  apply  to 
cases  in  which  the  court  had  no  jurisdiction  to  direct  the  sale  at 
which  the  purchaser  bid,  and  that  in  such  a  case  the  purch;is<  r 

1  Preston  v.  Fryer,  3S  Md.  221.  In  this  case  it  appeared  that  a  married 
•inn  had  conveyed  her  separate  estate  to  her  husband,  and  afterward  died 
l.efon-  hrr  lm.-l.and.  On  the  death  of  the  husband  suit  was  brought  fnr  -air 
•  •I  the  land  and  distribution  of  the  proceeds  among  his  heirs.  The  deed  1<>  t lu- 
ll ucband  was  a  nullity,  but  the  officer  of  the  court  advertised  tin-  1itl<-  t<i  IIP 
•-•'MM|.  and  the  purchaser  bought  under  that  impression.  But  for  the  fact  that 
the  proceeds  of  sale  remained  undistributed  in  tin  cause  \vlu-n  restitution  \\a- 
iii.ule,  and  but  for  the  unnecessary  declaration  by  the  officer  that  the  till-1 
waa  good,  it  would  be  difficult  to  reconcile  this  case  with  the  rule  cm-cut 
emptor.  as  applied  t<>  jndiriul  sales  in  other  jurisdictions.  While  there  is  no 
warranty  at  a  judicial  sale,  yet,  if  the  purchaser  when  sued  for  the  pur- 
chase money  ran  show  tlmt  at  the  sale  there  were  misrepresentatit>n- 
the  thing  sold,  whether  wilful  or  not,  he  may  set  up  sudi  misrepresentation.; 
•*  u  "M.  Charleston  v.  Blohme,  15  So.  Car.  124:  »n  Am. 

Rep.  690.  ritinir  State  v.  Halliard.  2  Bay  (S.  C.K  11;   1  Am.  I'-  ftfe*M 

rirkoll.  '2  Hill    (S.  (  ...  057;  Adams"  v.  Kibler.  7  So.  Car.  5S;   Mil. 'hell  v. 
Pii  '03. 

'  'ilei.n  v.  Clapp.  1 1  Gill  A  .T.  (Md.)  1.  This  holding  is  largely  nbilrr  (!irfn>,,. 
a«  the  pur'-ha«c  money  in  the  case  had  not  been  paid,  ami  the  rase  itself  \\.i- 
an  appeal  from  an  order  confirming  the  sale  as  against  the  purrha-ei-'-i 
objection*  to  the  title.  The  rule  announced  neems  eminently  just  and  cc|tii- 
table.  but  it  einin-.t  I*-  c.i-ily  reconciled  with  the  general  rule  that  a  pun  lia-er 
at  a  judicial  nale  cannot  be  relieved  from  bin  bargain  after  confirmation  of 
•.ind  that  the  title  has  failed. 


CAVEAT    EMPTOE.  87 

might  have  restitution  of  the  purchase  money  even  after  confirma- 
tion of  the  sale.1  And,  generally,  it  has  been  held  that  a  purchaser 
at  a  judicial  sale  which  is  void  for  want  of  jurisdiction  in  the  court 
to  order  the  sale,  or  for  other  cause,  may  resist  the  payment  of  the 
purchase  money,  even  after  the  purchaser's  bid  had  been  accepted 
by  the  court.2  There  can  be  no  confirmation  of  that  which  is  void. 
We  have  elsewhere  attempted  to  show  that  this  eminently  just  and 
equitable  doctrine  is  inconsistent  with  the  rule  caveat  emptor,  as 
the  purchaser  may  inform  himself  of  the  want  of  jurisdiction  by 
examining  the  proceedings  in  the  cause.3  Nor  does  the  rule  apply 
where  there  was  no  such  land  in  existence  as  the  officers  of  the 
court  undertook  to  sell.4  Nor  where  the  premises  were  in  the 
possession  of  one  claiming  adversely  at  the  time  of  the  sale,  the 
purchaser  and  the  parties  being  ignorant  of  such  person's  claim, 
or  that  he  intended  to  retain  possession.5  The  purchaser  will  not 

1  Boggs  v.  Hargrave,  16  Cal.  559;  76  Am.  Dec.  561,  citing  Darvin  v.  Hill- 
field,  4  Sandf.  Sup.  Ct.  (N.  Y.)  468;  Kolher  v.  Kolher,  2  Edw.  Ch.  (N.  Y.) 
69;  Post  v.  Leet  8  Paige   (N.  Y.),  337;   Seaman  v.  Hicks,  8  Paige   (N.  Y.), 
655;   Brown  v.  Frost,   10  Paige    (N.  Y.),  243;   Shively  v.  Jones,  6  B.  Mon. 
(Ky.)  275.     This  is  doubtless  true  in  any  case  in  which  the  court  was  with- 
out jurisdiction  of  the  person  of  the  defendant,  or  in  which  the  suit  was  of 
a  kind  of  which  the  court  could  not  take  cognizance.     But  in  the  principal 
case  the  objection  to  the  jurisdiction  was  that  the  defendant  had  no  title  to 
the  property;  that  the  title  was  outstanding  in  one  who  had  not  been  made  a 
party,  and  the  objection  was  sustained,  and  the  purchaser  permitted  to  recover 
back   the   purchase  money.      Such    a   principle   goes   far   towards   destroying 
altogether  the  application  of  the  maxim  caveat  emptor  to  judicial  sales  that 
have  been  confirmed,  since  in  most  instances  the  purchaser  seeks  relief  on  the 
ground  that  the  title  is  outstanding  in  a  stranger. 

2  Freeman   Void  Jud.    Sales,    §    48;    Todd   v.    Dowd,   1    Mete.    (Ky.)    281; 
Carpenter  v.  Strother,  16  B.  Mon.    (Ky.)    289;   Barrett  v.  Churchill,  18  B. 
Mon.   (Ky.)   387. 

3  Post,  this  chapter,  §  61. 

4Strodes  v.  Patton,  1  Brock.  (U.  S.)  228,  per  MARSHALL,  C.  J.  A  decree 
directed  the  sale  of  the  lands  whereof  H.  died  "  seized  and  possessed."  The 
officers  of  the  court  at  the  time  of  the  sale  exhibited  certain  conveyances  to 
H.,  but  disclaimed  any  responsibility  for  quantity  or  title,  and  declared  that 
the  purchaser  must  buy  at  his  risk.  It  appeared  that  H.  had  never  been 
seised  of  one  of  the  tracts  so  conveyed,  and  was  not  entitled  to  anything  by 
virtue  of  the  conveyance  thereof.  The  sale  was  treated  as  having  been  made 
without  authority,  or  by  mistake,  and  the  purchasers  were  relieved,  even 
after  confirmation. 

5McGown  v.  Wilkins,  1  Paige  Ch.  (N.  Y.)  120,  the  court  saying:  "This  is 
not  like  the  case  of  a  sale  by  the  sheriff  on  execution.  There  the  court  never 
gives  possession  to  the  purchaser,  even  as  against  the  party  to  the  suit. 


88  MARKETABLE    TITLE    TO    KKAL    ESTATE. 

be  deprived  of  his  right  to  reject  a  defective  title,  and  enjoin  the 
collection  of  the  purchase  money,  where  he  has  been  led  by  the  con- 
duct of  the  parties  to  postpone  a  motion  to  set  aside  an  order  con- 
firming the  sale,  until  after  the  close  of  the  term  at  which  the  order 
was  made.1 

The  rule  that  a  purchaser  at  a  judicial  safe  cannot,  after  the 
sale  has  been  confirmed,  refuse  to  pay  the  purchase  money  on 
the  ground  that  the  title  is  defective,  is  salutary  where  the 
objection  is  merely  that  the  title  is  unmarketable,2  or  where  there 
is  no  probability  that  the  purchaser  will  ever  be  disturbed  ill  his 
possession,  and  the  alleged  imperfections  have  been  ferreted  out  a? 
an  excuse  for  the  detention  of  the  purchase  money.  But  where 
there  is  a  clear  and  palpable  failure  of  the  title,  as  where  the  pur- 
chaser has  been  evicted  by  an  adverse  claimant,  or  where  the  rights 
of  the  holder  of  the  paramount  title  are  being  asserted,  or  will 
inevitably  be  asserted,  by  hostile  proceedings,  it  would  seem  that 
neither  the  ends  of  justice  nor  of  legal  policy  or  convenience  can 
be  subserved  by  compelling  the  purchaser  to  pay  his  money  into 
court,  when  the  court  can  give  him  nothing  in  return.  Accord- 
ingly, in  several  such  cases,  not  only  has  the  purchaser  been  per- 
mitted to  detain  the  unpaid  purchase  money,  but  restitution 
thereof  has  been  made  to  him  where  the  fund  accruing  from  the 
sale  remained  undistributed  in  the  hands  of  the  court.2  In  other 
cases,  a  distinction  has  been  made  between  sales  in  partition, 
or  other  voluntary  sales,  and  those  in  which  the  sale  is  to  com- 
pel the  payment  of  a  debt,  holding  in  the  former  case  that  the 
purchaser  may  detain  the  purchase  money,  and  in  the  latter  that 
he  must  pay  it  though  evicted  by  title  paramount4  The  proposi- 

J  Morrow  v.  Wessell,   (Ky.)    1  S.  W.  Rep.  439. 

'  \Vi»rthington  v.  Mi-Robert •,  9  Ala.  297.  In  Mahoney  v.  Allen,  42  X.  Y. 
Supp.  11,  the  purchaM-r  was  permitted  to  make  objection*  of  that  kind  after 
the  tale  was  confirmed. 

•Prwton  v.  Fryer,  38  M.I.  221.  Boggs  v.  Hmrjirave.  16  Cal.  559;  76  Am. 
Dec.  561.  Weemfl  v.  Lore  Mfg.  Co.,  74  Mi«s.  831;  21  So.  915.  See,  also. 
CkarUuton  v.  BhJune,  16  So.  Car.  124 ;  40  Am.  Hep.  690.  The  cane  of  Glenn 
v.  Clapp.  11  Gill  &  J.  (  M«l.  •  1,  has  been  cited  to  UUH  point,  but  an  examina- 
tion of  that  cane  shows  that  the  purchaser's  objections  to  the  title  were  made 
before  confirmation  of  the  sale.  See  Korer  on  Jud.  Sales  (2d  ed.),  78. 

'Latimer  v.  WhartoD.  (So.  Car.)  19  S.  K.  Rep.  855.  Here  the  purchaser  in 
a  suit  for  the  administration  of  the  a<wet«  of  a  deceased  debtor's  estate,  sought 


CAVEAT    EMPTOR.  89 

tion  th'at  a  purchaser  at  a  judicial  sale,  who,  after  confirmation  of 
the  sale,  has  been  evicted  by  title  paramount,  will  not  be  com- 
pelled to  pay  the  unpaid  purchase  money  \\Then  the  facts  avoid- 
ing the  title  were  not  such  as  he  could  have  discovered  by  the 
exercise  of  reasonable  prudence,  care  and  diligence,  commends 
itself  to  the  mind  as  equitable  and  just.  It  is  believed  that  no 
serious  inconvenience  could  result  from  such  a  rule,  while  a  bene- 
fit consequent  thereon  is  obvious.  Judicial  sales  are  usually  made 
upon  an  extended  credit,  and  if  purchasers  could  be  assured  that 
they  would  not  be  compelled  to  pay  the  unpaid  purchase  money 
if  they  should  be  evicted  by  some  one  having  a  better  title,  it  is 
fair  to  assume  that  better  prices  for  property  thus  would  be 
realized. 

But  the  generally  prevalent  rule  and  the  weight  of  authority, 
undoubtedly  is  that  a  purchaser  at  a  judicial  sale  proper  will  not  be 
permitted  to  have  restitution  of  the  purchase  money  after  it  has 
passed  beyond  the  control  of  the  court,  without  regard  to  the  nature 
or  extent  of  the  defect  of  title,1  except,  perhaps,  where  the  judg- 
ment or  decree  under  which  the  purchase  was  made  was  void  for 

to  enjoin  a  judgment  for  the  purchase  money  on  the  ground  that  he  had  been 
evicted  by  an  adverse  claimant,  and  it  was  held  that  the  sale  of  the  land 
having  been  compulsory,  he  must  pay  the  purchase  money;  the  court  observ- 
ing :  "  It  is  well  known  that  the  reason  of  the  rule  of  caveat  emptor  at  sheriff's 
sales  is  because  such  sales  are  forced  and  are  made  under  compulsory  process. 
There  is  not  the  same  reason  for  holding  that  the  rule  should  prevail  where 
the  officer  selling  the  property  is  regarded  as  the  agent  of  the  parties,  such 
as  sales  for  partition  and  those  made  by  executors  and  administrators."  This 
ca,se  contains  an  interesting  review  of  the  South  Carolina  authorities  upon  the 
right  of  the  purchaser  at  a  judicial  sale  to  detain  the  purchase  money  on 
failure  of  the  title.  As  to  such  right  in  this  State  in  case  of  a  private  sale, 
see  post,  §  190.  In  Smith  v.  Brittain,  3  Ired.  Eq.  (N.  C.)  347,  351;  42  Am. 
Dec.  175,  which  was  a  suit  for  partition,  it  was  said  by  RUFFIX,  C.  J. :  "A 
sale  by  the  master  in  a  case  of  this  kind,  is  but  a  mode  of  sale  by  the  parties 
themselves.  It  is  not  merely  a  sale  by  the  law,  in  invitum,  of  such  interest 
as  the  party  has  or  may  have,  in  which  the  rule  is  caveat  emptor,  but  pro- 
fesses to  be  a  sale  of  a  particular  estate,  stated  in  the  pleadings  to  be  vested 
in  the  parties,  and  to  be  disposed  of  for  the  purpose  of  partition  only.  There- 
upon, if  there  be  no  such  title,  the  purchaser  has  the  same  equity  against 
being  compelled  to  go  on  with  his  purchase  as  if  the  contract  had  been  made 
without  the  intervention  of  the  court,  for,  in  truth,  the  title  has  never  been 
passed  on  between  persons  contesting  it." 

1  Smith  v.  W;nn,  ?S  So.  Car.  188;   17  S.  E.  Rep.  717. 

12 


90 


MAKKETAIJLE    TITLE    TO    UKAJ.     ESTATE. 


want  of  jurisdiction;1  nor,  after  the  sale  has  been  confirmed,  to 
detain  the  purchase  money  upon  mere  suggestions  of  doubts  and  dif- 
ficulties as  to  title,  nor  even  where  the  title  has  absolutely  and  pal- 
pably failed,  if  the  pleadings  in  the  case  in  which  ho  purchased  show 
the  true  state  of  the  title.8  And  in  no  case,  apart  from  questions 
of  fraud  or  deceit,  can  a  purchaser  at  a  sale  made  by  one  in  a  minis- 
terial or  fiduciary  capacity,  maintain  an  action  against  the  seller  to 
recover  damages  for  inability  to  convey  a  clear  title.  Ina.-inuch  as 
there  is  no  contract  in  such  a  case  that  the  purchaser  shall  receive  a 
1  title,  there  can  be  no  cause  of  action  against  the  vendor  if  the 
title-  fails.3  We  have  seen,  however,  that  if  the  person  making  the 
sale  choose  to  execute  a  conveyance  with  general  warranty  to  the 
purchaser,  he  will  be  personally  liable  on  the  covenant.4 

It  has  been  held,  with  resj>ect  to  the  maxim  <-<n;,it  ,  /tijtfn);  as 
applicable  to  judicial  sales,  that  a  distinction  is  to  be  observed 
between  cases  in  which  the  decree  directs  a  sale  of  the  ••  land  "  itself, 
and  those  in  which  only  an  "estate"  ..r  inteiv.-t  in  the  land  is 
directed  to  be  sold,  and  that  in  the  former  case,  if  the  purchaser 
ar.juires  no  title,  he  may,  even  after  continuation  of  the  sale,  have 
the  contract  rescinded  and  the  purchase  money  returned,  but  that  in 
the  latter  case  he  must  take  the  title  at  his  risk/'  This  distinction 
does  not  appear  to  have  been  generally  observed. 

§  48.  Fraud  as  it  affects  rights  of  purchaser  at  judicial  sale. 
Fraud,  as  it  respects  the  rights  of  a  purchaser  at  a  judicial  sale  or 

'SeeBoggsv.  Harurave.  1»5  (',,1    .V,'.i:   M  Am.  !>.•<-.  .'itil. 

1  Eccloj  v.  Timmons,  95  N.  Cur.  51(1.  Kven  though  tin-  purchaser  \\as  fraudu- 
lently indueed  to  hid.  Norton  v.  N.-l,  J.mn  A:  Tr  Co.,  80  NYb.  4<>G.  .".::  N  \\". 
Rep.  4*1;  58  N.  W.  Kep 

•A  rigorous  application  of  the  d<x-trii:>  />f»r  to  judicial  sales  is  found 

in  Kvans  v.  I>.-ml\.  v!  Spmr  (S.  Cur.).  '.'.    |:i  Am.  !>«•<.  :'M.  \\ln-iv  it  \\.-ts  hold  th:,t 

a  pim-luuxT  und.-r  u  decree  in  partition  l.d  wc.-n  heirs  \\lio  1ms  h,  en  evictetl  l>y 

title   |inniiiiitiiiit.  <mui<»t  rwovr-r  buck   lh-    purchase   money,  thonirh   it   remains 

undistributed  in  tli<;  hnnds  «f  the  otlieer  making  the  sale.     UICH\  .lis- 

1  upon  tin-  jrrmind  tlint  I  he  otHi-er  makinir  the  sjile  is  the  mere  aireni  o|   tin- 

heirs,  and  thftt  Hiicli  n  sale  diwn  not  slninl  upon  the  same  footing  as  a  sale  under 

.       .tion.     868,  aU...  Hnp-rs  v.  H.-rn.i;  l;j,-l,.  |.  ,s.  C.,:\<\].     li  is  to  be  observe,! 

that  in  KVUII.H  v.  I),  ndy    supm  MM  e  \vitliout  covenants  for  title  had  been 

nuide  to  the  pun  !(••  . 


(  ar.  :C.V<ritieis,.,|l,i,i  not  overrule!  in  Kliis  v.  An.ler- 
>-  •  1  •'•      '1  hi-  caw  holds  thai  u  hen  a  court  deeree-,  tin-  vile  o!  land  it 


CAVEAT    EMPTOR.  91 

of  one  claiming  under  such  purchaser,  is  either:  (1)  Fraud  antece- 
dent to  the  sale,  such  as  fraud  in  the  procuration  or  rendition  of  the 
judgment  or  decree  in  pursuance  of  which  the  sale  is  made ;  (2) 
Fraud  in  the  sale  itself,  such  as  collusion  between  the  officer  selling 
and  the  purchaser,  by  which  the  property  is  sacrificed ;  and  (3) 
Fraud  on  the  part  of  the  officer  selling  or  parties  in  interest  in 
falsely  stating  the  condition  of  the  title,  with  intent  to  deceive.  In 
the  first  two  instances  the  sale  is  open  to  collateral  attack  by  the 
party  injured  and  by  the  purchaser  himself ;  fraud  in  these  respects 
is  considered  in  a  subsequent  section  of  this  work.1  In  the  last 
instance  there  are  cases  which  hold  that  if  the  purchaser  at  a  judi- 
cial sale  has  been  induced  to  bid  by  the  fraudulent  representations 
or  concealment  of  facts  respecting  the  title  on  the  part  of  the  officer 
or  of  others  interested  in  making  the  sale,  he  will  be  relieved  in 
equity  from  his  bid,  after  confirmation  of  the  sale.2  But  even  in  a 
case  of  misrepresentation  as  to  the  title,  the  purchaser  cannot  avoid 
the  sale  unless  he  can  show  that  he  could  not  have  discovered  the 
fraud  with  reasonable  diligence.3  Thus,  where  the  pleadings  in  a 
suit  to  foreclose  a  junior  mortgage  showed  the  existence  of  the  prior 
mortgage,  and  the  purchaser  at  foreclosure  sale  in  the  suit  was  induced 
to  bid  by  the  representations  of  the  officer  making  the  sale  and  by 
the  clerk  of  the  court,  that  there  was  no  prior  lien  on  the  property, 
it  was  held  that  he  could  not  be  relieved  from  the  contract,  as  he 
might  easily  have  informed  himself  of  the  true  state  of  the  title  by 
examining  the  pleadings.4 

is  the  duty  of  the  officer  selling  to  offer  a  good  title  to  the  land.  In  Miller  v.  Fee- 
zor,  83  N.  C.  192,  citing  Shields  v.  Allen,  supra,  it  was  said  that  the  maxim  cateat 
emptor  did  not  apply  to  judicial  sales  in  North  Carolina. 

1  Post,  this  chapter,  §  52. 

2  Rorer  on  Jud.  Sales  (2d  ed.),  §  175;  Preston  v.  Fryer,  38  Md.  221;  Mervine 
v.  Vaulier,  3  Halst.    Ch.   (N.  J.)  34,  semble ;  Bishop  v.   O'Connor  69  111.  431, 
(lii't'un.     "While  there  is  no  warranty  at  a  judicial  sale,  the  purchaser  when  sued 
for  the  purchase  money  may  set  up  misrepresentations  as  to  the  title  as  a  defense. 
Charleston  v.  Blohme,  15  So.  Car.  124;  40  Am.  Rep.  690;  Mitchell  v.  Pinckney,  13 
So.  Car.  203.     Statements  in  a  bill  for  partition  that  complainants  are  the  owners 
of  the  property,  are  no  such  fraudulent  representations  as  to  the  title  by  those 
interested    in   a   sale   of  the  property  as  will  entitle  the   purchaser  to  relief. 
McM-mus  v.  Keith.  49  111.  388. 

3  Williams  v.  Glenn,  87  Ky.  87;  7  S.  W.  Rep.  610. 

4  Norton  v.  Neb.  Loan  &  Tr.  Co..  35  Neb.  466:  53  N.  W.  Rep.  481;  58  id.  95& 


MARKETABLE    TITLE    TO    REAL    ESTATE. 

will  the  purchaser  be  relieved  if  with  knowledge  of  the 
fraud  lie  permits  the  sale  to  be  continued  without  objection.1  There 
are  cases  also  which  hold  that  the  officer  making  the  sale  has  no 
right  to  make  representations  concerning  the  title,  and  that,  there- 
fore, the  purchaser  has  no  right  to  rely  on  them,  and  will  not  be 
entitled  to  relief  if  he  should.2 

The  purchaser  may  of  course  resist  confirmation  of  the  sale  on 
the  ground  that  he  was  induced  to  bid  by  fraudulent  or  mistaken 
representations  as  to  the  state  of  the  title.3 

§  49.  Errors  and  irregularities  in  the  proceedings.  Collat- 
eral attack.  Errors  and  irregularities  in  judicial  proceedings  are 
either  such  as  render  the  judgment  or  decree  therein  pronounced 
absolutely  null  and  void,  or  such  as  render  them  voidable  only.  A 
judgment  rendered  against  one  who  has  not  been  brought  before 
the  court  by  due  process  of  law  is  absolutely  void.4  A  judgment 
founded  upon  a  misconception  of  the  law  of  the  case,  the  court 
having  acquired  jurisdiction  of  the  parries,  is  voidable  only.5  A 
void  judgment  is  open  to  collateral  attack.  A  voidable  judgment 
can  be  vacated  or  annulled  only  upon  appeal  or  writ  of  error,  or  in 
some  direct  proceeding  between  the  parties.6  It  seems  to  l>e  settled 

1  Fore  v.  McKenvno.  5R  Ala.  116. 

•  Vandever  v.  Baker.  13  Pa.  St.  136;  Slowthower  v.  Gordon,  £1  Md.  1,  where 
it  wit*  Kiiid  tlmi  t.ln-i-1-  is  no  relation  of  trust  and  confidence  between  the  officer 
making  a  judicial  salt-  ami  tip-  purchaser. 

•  Vceder  v.  Fonda.  :*  r-iiiro  (N.  Y.),  94;  Seaman  v.  Hicks,  s  I'aipe  (N.  Y.),  056; 
McGown  v.  Wilkinx  1  I'aiire  <N.  Y.).  120;  Morris  v.   Mowatt.   2  Paige  (N. 
588;  23  Am.  Dec.  661;  KaufTman  v.  Walker,  9  Md.  229.     In  Tooley  v.  Kane.  1 

it  was  said  that  the  court  would  set  aside  a  sale  in  case 
of  fraud,  oven  after  continuation. 

4  Hl:u-k  on  Judgments  (1st  c.l.  i.  245,  ct  seq. 

» Freeman  on  Judgment*  dth  .-d.i.  £  117,  etseq.;  Cox  v.  Davis.  17  Ala.  714;  52 
Am.  Dec.  199. 

••i:in  Y«.id  Jud.  Sales.  «  20;  Ulark  on  .TudirmcnK  ;  Wl.  «-t  seq.:  Rorer  on 
Jud.  Sale*  <2d  ed  t.  ••:  171  Swiepirt  v.  Hnrber.  -I  Sc.-nn.  (111.)  1164;  89  Am.  Doc. 
tl"  Tin-  opinion  of  tin-  roim  in  the  h-adinir  cnse  of  Voorliees  v.  Bsmk  of  tiie  U. 
8..HM1.  •  I  .  ...nt.-iins  a  clear  exposition  of  this  doctrine:  "Thelinr 

whidi  «M-|.nrc.  -,  <-rn.r  in  jiidu'inent  from  the  usurpation  of  power  is  very  definite, 
»nd  U  |.r.<i-  !\  th:.t  whidi  denotes  the  eaaes  when-  a  judgment  or  decree  i» 
nblr  only  by  an  appellate  court,  or  may  be  oVHarH  H  nullity  (f)llaterally, 
when  it  U  offered  in  evidence  in  an  action  concerning  the  matter  adjudicated,  or 
purporting  to  hare  been  so.  In  the  one  case  it  is  a  record  importing  absolute 


CAVEAT    EMPTOR.  93 

everywhere,  either  by  statute  or  judicial  declaration,  that  the 
reversal  of  a  judgment  or  decree  on  error  or  appeal  cannot  disturb 
the  title  of  a  purchaser  at  a  judicial  sale  under  such  judgment  or 
decree,1  except  in  a  case  in  which  the  land  sold  was  not  the  prop- 
erty of  the  defendant  in  the  cause,  and  the  alleged  debt  for  which 
the  land  was  sold  was  found  not  to  exist.2  And,  except,  also, 
in  some  of  the  States,  that  if  the  plaintiff  in  the  reversed  judgment 
be  himself  the  purchaser  of  the  land,  the  defendant  may  recover  it 
back.3  There  may  be  a  restitution  of  the  proceeds  of  the  sale  to 

verity;  in  the  other  mere  waste  paper.  There  can  be  no  middle  character  assigned 
to  judicial  proceedings  which  are  irreversible  for  error.  Such  is  their  effect 
between  the  parties  to  the  suit,  and  such  are  the  immunities  which  the  law  affords 
to  a  plaintiff  who  has  obtained  an  erroneous  judgment  or  execution.  It  would 
be  a  well-merited  reproach  to  our  jurisprudence  if  an  innocent  purchaser,  no 
party  to  the  suit,  who  had  paid  his  money  on  the  faith  of  an  order  of  a  court, 
should  not  have  the  same  protection  under  an  erroneous  proceeding  as  the  party 
who  derived  the  benefit  accruing  from  it  A  purchaser  under  judicial  process 
pays  the  plaintiff  his  demand  on  the  property  sold;  to  the  extent  of  the  purchase 
money  he  discharges  the  defendant  from  his  adjudged  obligation.  Time  has 
given  an  inviolable  sanctity  to  every  act  of  the  court  preceding  the  sale,  which 
precludes  the  defendant  from  controverting  the  absolute  right  of  the  plaintiff  to 
the  full  benefit  of  his  judgment,  and  it  shall  not  be  permitted  that  the  purchaser 
shall  be  answerable  for  defects  in  the  record,  from  the  consequence  of  which  the 
plaintiff  is  absolved.  Such  flagrant  injustice  is  imputable  neither  to  the  common 
nor  statute  law  of  the  land."  In  Lancaster  v.  Wilson,  27  Grat.  (Va.)  624,  629,  the 
court,  deciding  that  the  title  of  a  purchaser  under  an  invalid  and  irregular  attach- 
ment sale  could  not  be  collaterally  drawn  in  question,  observed:  "If,  after 
the  rendition  of  a  judgment  by  a  court  of  competent  jurisdiction,  and  after 
the  period  elapses  when  it  becomes  irreversible  for  error,  another  court  may, 
in  another  suit,  inquire  into  the  irregularities  or  errors  in  such  judgments, 
there  would  be  no  end  to  litigation,  and  no  fixed  established  rights.  A  judg- 
ment, though  unre versed  and  irreversible,  would  no  longer  be  a  final  adjudi- 
cation of  the  rights  of  litigants,  but  the  starting  point  from  which  a  new  litiga- 
tion would  spring  up.  Acts  of  limitation  would  become  useless  and  nuga- 
tory. Purchasers  on  the  faith  of  judicial  powers  would  find  no  protection. 
Every  right  established  by  a  judgment  would  be  insecure  and  uncertain,  and  a 
cloud  would  rest  upon  every  title." 

1  Rorer  Jud.  Sales,  §  130. 

'  Baker  v.  Baker,  87  Ky.  461;  9  S.  W.  Rep.  382. 

*  Post,  "  Sheriff's  Sales,"  this  chapter;  Gould  v.  Sternberg,  128  III.  510;  21  K  E. 
Rep.  628;  Turk  v.  Skiles,  38  W.  Va.  404.  This  exception  does  not  appear  to 
have  been  admitted  in  Baker  v.  Baker,  87  Ky.  461;  9  S.  W.  Rep.  382,  and  was 
denied  in  Yocum  v.  Foreman,  14  Bush  (Ky.),  494. 


94  MAKKl  1  \l;l  I      TITLE    TO    REAL    ESTATE. 

the  party  injured  by  the  error,  but  the  purchaser's  title  remains  in- 
tact,1 unless,  indeed,  it  is  apprehended  the  judgment  was  reversed 
upon  grounds  that  would  have  rendered  it  void  had  no  appeal  been 
taken.  It  would  seem  then  to  follow  from  these  elementary  prin- 
ciples that,  if  a  purchaser  at  a  judicial  sale  resists  a  confirmation  of 
the  sale  on  the  ground  of  errors  and  irregularities  in  the  proceed- 
ings, it  would  only  be  necessary  to  consider  whether  such  errors  and 
irregularities  were  of  a  kind  that  would  render  the  judgment  or 
decree  under  which  the  sale  was  made  absolutely  void,  or  voidable 

•Voorhis  v.  Hank  of  U.  S.,  10  Pot.  (U.  S.)  449.  Freeman  on  Judgments, 
$  484  (3d  ed.)  ;  Fret-man  on  Void  Jud.  Sales,  p.  45  (3d  ed.)  :  Black  on  Judg- 
ment*, p.  320;  Rorer  Jud.  Sales  (2d  ed.),  §  132;  Burnett  v.  Ilamill.  2  Soli.  &, 
Let.  577.  Voorhees  v.  Bank,  10  Pet.  (U.  S.)  449;  McGoon  v.  Scales,  9  Wall. 
(U.  S.)  23,  31.  Jackson  v.  Edwards,  22  Wend.  (N.  Y.)  493,  518.  Cockey  v. 
Cole,  23  Md.  270;  92  Am.  Dec.  G84;  Benson  v.  Yellbtt,  (Md.)  24  Atl.  Rep. 
451.  Capehart  v.  Dowery,  10  W.  Va.  130.  Frederick  v.  Cox,  47  W.  Va.  14; 
34  S.  E.  Rep.  958.  Yocum  v.  Foreman,  14  Bush  (Ky.),  494;  Bailey  v.  Fanning 
Orphan  School,  (Ky.)  14  S.  W.  Rep.  90S.  Stout  v.  Gully,  (Colo.)  22  Pnc. 
Rep.  954;  Cheever  v.  Minton,  (Colo.)  21  Pnc.  Rep.  710.  Gould  v.  Sternberg, 
128  III.  510;  21  X.  E.  Rep.  028.  England  v.  Garner,  90  N.  Car.  197.  If  juris- 
diction of  a  causp  has  been  acquired  by  the  court  the  title  of  a  purchaser  at  a 
•ale  therein  cannot  be  affected  by  the  fact  that  the  decree  in  pursuance  of  which 
the  wile  was  made  was  founded  on  insufficient  proof.  Bolgiano  v.  Cook,  19 
Md.  375.  A  purchaser  under  a  judgment  merely  erroneous  acquires  good  title; 
otherwise,  if  the  judgment  be  void.  Bowers  v.  Chaney.  21  Tex.  303.  Mere 
errors  and  irregularities  in  the  proceedings  make  no  grounds  for  collateral 
attack.  Wilson  v.  Smith,  22  Grat.  (Va.)  493.  The  remedy  of  the  person 
injun-d  by  the  passing  of  tide  under  a  judgment  that  has  been  reversed  for 
error  is  an  action  for  damages  against  those  at  whose  instance  the  sale  was 
made,  alleging  such  facts  as  will  show  (hat  the  plaintiff  is  entitled,  by  reason 
of  the  reversal,  to  what  he  has  been  deprived  of  by  the  erroneous  judgment. 
Hay*  v.  Griffith,  85  Ky.  375;  11  8.  W.  Rep.  300;  3  S.  W.  Rep.  431.  The  case 
of  Sohier  v.  Williams,  1  Curt.  (C.  C.)  479,  affords  nn  illustration  of  this 
principle.  The  sale  in  that  case  was  by  a  trustee  under  a  power  in  a  will, 
which  authorised  him  to  sell  when  a  majority  of  the  testatrix's  children 
ohoiild  ndvine  a  sale.  The  court  was  of  opinion  that  the  consent  of  the 
major  part  of  the  children  liriny  trhcn  the  potccr  teas  to  be  exercised  was 
Midleii-nt.  but  considered  the  question  so  doubtful  that  but  for  the  fact  that 
all  parties  in  interest  were  before  the  court,  and  would  be  bound  by  a  decree, 
the  [nin  ba-t-r  would  not  have  hocn  compelled  to  complete  the  contract.  Had 
the  court  pronounced  «n  erroneous  decree,  having  all  parties  in  interest 
before  it,  the  decree  would,  indeed,  have  been  subject  to  reversal  by  a  higher 
court,  but  the  title  of  the  purchaser  would  have  remained  undisturlied.  In 
Dunfee  v.  Child*.  45  W.  Vn.  155;  30  S.  E.  102,  it  wan  said  that  the  title  of 
the  purchaser  fall*  with  the  reversal  of  a  decree.  1st,  where  he  is  a  party  to 
the  *uit  with  an  inten^t  in  the  cause;  2nd,  where  the  decree  was  reversed 
for  want  "f  nere»»ary  parties;  and  3rd.  where  the  decree  reversed  ia  that 
which  confirmed  the  •«!«•  whether  he  was  a  party  to  the  suit  or  not. 


CAVEAT    EMPTOR.  95 

only.  In  th^  former  event  it  is  conceived  that  the  purchaser  would 
be  excused  from  completing  the  purchase,  and  that  in  the  latter 
event  he  would  be  required  to  pay  the  purchase  money  and  accept 
a  conveyance.1  Thus,  if  the  court  decree  a  sale  of  testator's  lands 
in  pursuance  of  an  erroneous  construction  of  his  will,  all  parties  in 
interest  being  before  the  court,  it  is  apprehended  that  the  error 
would  be  no  objection  to  the  title  wherever  the  rule  that  the  rever- 
sal of  a  judgment  does  not  affect  the  rights  of  a  purchaser  under 
the  judgment  is  observed.  On  the  other  hand,  if  infants,  having  an 
interest  under  the  Avill,  have  not  been  brought  before  the  court  in 
the  manner  provided  by  law,  the  judgment  of  the  court  is  absolutely 
void  as  to  them,  arid  the  land  in  the  hands  of  the  purchaser  being 
subject  to  their  demands  upon  their  arrival  at  majority,  it  would 
seem  clear  that  the  purchaser  would  be  relieved  from  his  bid.2  It 
has  been  frequently  said  that  a  purchaser  at  a  judicial  sale  cannot 
question  the  regularity  of  the  proceedings  prior  to  the  decree  under 
which  he  purchased.3  This,  it  is  obvious,  means  only  errors  and 
irregularities  prior  to  the  sale  that  would  make  the  decree  voidable  ; 
that  is,  reversible  on  appeal  or  in  some  direct  proceeding,  and  not 
errors  or  other  matters,  such  as  want  of  jurisdiction  or  fraud,  that 
would  make  the  decree 'absolutely  void  and  open  to  collateral  attack, 
for  it  is  clear  that  the  purchaser  showing  such  want  of  jurisdiction 

'2  Jones  on  Mortgages,  §  1G47;  Freeman  Void  Jud.  Sales,  p.  45  (3d  cl.)  : 
Iloier  ,Jud.  Kales,  p.  Go.  Trapier  v.  Waldo,  1C  S.  C.  27G;  Bulow  v.  WiUe,  5 
S.  C.  323.  Wright  v.  Edwards,  10  Oreg.  307;  McCulloch  v.  Estes,  20  Greg. 
34!);  25  Pac.  724. 

2  In  Cline  v.  Catron,  22  Grat.  (Va.)  378,  the  curator  of  an  idiot's  estate  and 
lands  brought  a  suit  for  a  sale  of  the  lands  and  reinvestment  of  the  proceeds, 
and  at  a  sale  under  decree  in  the  cause,  himself  purchased  the  lands.     The 
sale  was  confirmed,  in  violation  of  a  statute  which  provided  in  express  terms 
that  the  plaintiff,  the  curator,  should  not  be  admitted  as  a  purchaser.    It  was 
afterwards  objected  that  title  derived  through  such  purchaser  was,  by  reason 
of  the  premises,  insufficient;  but  it  was  held  that  the  court,  having  had  juris- 
diction to  make  the  sale,  the  confirmation  thereof  was  mere  error,  for  which 
the  decree  might  have  been  reversed,  but  could  not  be  attacked  in  a  collateral 
proceeding. 

3  Cox  v.  Cox,  18  D.  C.  1.     A  more  accurate  expression  of  the  rule  is  found  in 
Sutton  v.  Schonwald,  86  X.  Car.  198,  204;  41  Am.  Rep.  455,  where  it  is  said 
that  a  purchaser  who   is  no  party  to  the  proceeding  is  not  bound  to  look 
beyond  the  decree,  if  the  facts  necessary  to  give  the  court  jurisdiction  appear 
on  the  face  of  the  proceedings.     And  in  James  v.  Meyers,  41  La.  ^nn.   1100. 
it  was  said  that  while  the  purchaser  is  not,  as  a  general  rule,  bound  to  look 
beyond  the  decree,  he  is  still  bound  to  see  that  the  court  had  jurisdiction. 


96  MAltKKTAIiLK    TITLK    TO    REAL    ESTATE. 

before  continuation  of  the  sale  could  not  be  compelled  to  complete 
the  contract. 

The  cat**  illustrating  the  proposition  that  a  judgment  merely  erro- 
neous cannot  lie  made  the  subject  of  collateral  attack,  are  almost 
endless.  A  number  of  instances  have  l>een  given  in  the  notes  below, 
in  which  the  title  of  a  purcha«er,  immediately  or  derivatively,  under 
a  judicial  sale,  lias  Ixjen  called  in  question  on  the  ground  of  errors 
and  irregularities  in  the  proceedings,  and  in  which  the  objection  has 
been  held  untenable.1  It  must  suffice  to  say  here,  generally,  that 
insufficiency  of  the  evidence  to  sustain  the  judgment ;  error  of  the 
court  in  applying  the  law  to  the  facts  ;  want  of  parties,  where  the 
objection  is  made  by  one  bound  by  the  judgment  ;  defects  or  irregu- 
larities in  the  process  or  service  of  process,  other  than  absolute  want 


1  In  Perkins  v.  Fairfield.  11  Mnss.  227.  a  title  under  a  sale  by  administrators  by 
virtue  of  a  license  from  the  court,  was  held  good  against  the  heirs  of  the  intestate, 
although  the  license  waft  granted  upon  a  certificate  from  the  judge  of  probate,  not 
:iutlmri/.»-il  by  the  circumstancei)  of  the  cnsc.  A  purchaser  at  a  judicial  sale  can- 
not object  to  the  title  on  the  ground  that  more  of  an  estate  was  .-*•!«  1  than  was 
nwcssary  to  satisfy  the  decree,  "  the  decree  being  a  sufficient  security  to  him,  as 
it  cannot  appear  but  that  it  was  right  to  sell  the  whole."  1  Sugd.  Vend.  68; 
Daniel  v.  Leitch,  13  Oral.  (Va. )  195,  210.  Irregular  service  of  summons  does  not 
affect  the  title  of  a  purchaser  at  a  judicial  sale.  Upson  v.  Horn,  3  Strobh.  Eq. 
(8.  ('.)  10H;  49  Am.  Dec.  633.  Failure  to  revive  a  suit  for  partition  in  the  name 
of  the  heirs  of  one  of  the  complainants  who  died  after  decree  for,  but  before  date 
<>f  aulc  of  the  lands,  will  not  render  the  sale  void,  nor  impair  the  title  of  a  purchaser 
thereunder.  Schley  v.  Baltimore.  29  Md.  34.  In  Derr  v.  Wilson,  K4  Ky.  14,  it 
was  contended  that  a  court  had  no  power  to  order  a  sale  of  a  homestead,  subject 
U>  the  life  interest  of  the  delitor,  and  that  such  a  judgment  was  void  for  want  of 
jurisdiction,  hut  it  wan  held  that  while  the  court  erred  in  making  the  order,  it 
h  nl  jurisdiction  of  the  parties  and  subject-matter,  and  that,  therefore,  the  judg- 
ment and  the  title  of  the  purchaser  thereunder  could  not  be  collaterally  attacked. 
Where  judgment  wax  entered  for  the  full  amount  of  a  penal  bond  instead  of 
the damag***  fora  breach  of  the  bond,  awarded  by  the  jury,  it  was  held  error,  but 
not  such  as  i-mild  affect  the  title  of  a  purchaser  under  the  judgment.  Wale*  v. 
Bogue.  31  III.  404.  A  de«Tee  in  chancery  against  unknown  heirs  is  not  void 
because  no  affidavit  was  filed  that  they  were  unknown.  It  is  voidable  only  on 
apjx*l.  Hynes  v.  Oldliam.  3  T.  B.  Mon.  (Ky.)  2(M5;  Benningfleld  v.  Heed.  9  B. 
Mon.  (Ky.)  102.  If  a  guardian  ml  litfin  IK-  appointed  for  an  infant  and  he  actually 
answer*,  a  decree  based  thereon  will  not  !»<•  absolutely  void,  though  there  was  no 
actual  judicial  notice  of  the  suit  given  the  infant.  Bustard  v.  Gates,  4  Dana  (Ky.), 
4&:  Iteuk  t".  H.  v.  Cochran.  9  Diuia  (Ky.).  39T»:  Bcnningfield  v.  Heed,  H  B.  Mon. 
(Kjr.)  1O>.  A  nUttute  providing  that  lieforea  sale  JH  ordered  in  partition  the  court 


CAVEAT    EMPTOE.  O,J 

of  service ;  legal  disability  of  a  party,  according  to  the  preponder- 
ance of  authority;  judgment  for  an  excessive  amount;  mistakes 
and  clerical  errors  in  the  rendition  or  entry  or  judgment,  or  other 
like  matters,  cannot  be  availed  of,  in  a  collateral  proceeding,  to 
invalidate  a  title  held  under  a  judicial  sale.1 

§  50.  Want  of  jurisdiction.  The  only  grounds,  it  seems,  upon 
which  a  judgment  of  a  court  of  record  can  be  attacked  in  a  collat- 
eral proceeding  are  want  of  jurisdiction  in  the  court  to  render  the 
judgment,  and  fraud,  mistake  or  surprise  in  the  procuration  of  the 
judgment.2  Jurisdiction  is  either :  (1)  Of  the  person  of  the  defend- 

shull  appoint  some  one  to  represent  infant  parceners,  is  directory  only,  and  a 
failure  to  appoint  such  a  person  does  not  deprive  the  court  of  jurisdiction  and 
render  its  judgment  void.  Robinson  v.  Redman,  2  Duv.  (Ky.)  82.  The  fact 
that  a  mortgagee,  before  proceeding  to  foreclose,  executes  a  bond  whose  con- 
dition does  not  conform  to  the  statute,  will  not  avoid  the  jurisdiction  of  the  court 
to  confirm  the  foreclosure  sale  nor  affect  the  title  of  a  purchaser  thereat.  'Cockey 
v.  Cole,  28  Md.  276;  92  Am.  Dec.  684.  The  fact  that  commissioners  in  partition 
do  not  make  their  report  under  seal,  as  required  by  statute,  will  not  invalidate  a 
title  thereunder  upon  collateral  attack;  such  an  irregularity  could  be  taken  advan- 
tage of  only,  if  at  all,  by  proceedings  in  error.  Lane  v.  Bommelmann,  17  111.  S5. 
Failure  to  direct  a  sale  in  inverse  order  of  alienation  is  not  such  error  as  affects  the 
jurisdiction  and  avoids  the  sale.  Jenks  v.  Quinn,  137  K  Y.  223;  33  N.  E.  Rep.  376. 
Where  the  record  in  a  proceeding  by  an  administrator  to  sell  decedent's  lands 
for  the  payment  of  his  debts,  affirmatively  shows  that  the  court  has  jurisdiction 
to  order  the  sale,  that  the  land  was  sold  under  order  of,  and  was  approved  by  the 
court,  and  that  a  deed  under  like  order  was  executed  to  the  purchaser,  it  was  held 
that  the  action  of  the  court,  being  in  the  nature  of  a  proceeding  in  rem.  could 
not,  though  abounding  with  errors  and  irregularities,  be  collaterally  impeached. 
The  failure  to  give  the  statutory  notice  by  citation  to  the  heirs,  and  the  absence 
of  proof  by  the  record  that  the  guardian  fid  liiem  of  the  minor  heirs  accepted  the 
appointment,  or  that  he  filed  an  answer  denying  the  allegation  of  the  petition,  or 
that  the  commissioner  of  sale  ga,ve  proper  notice  of  the  time  and  place  of  sale  — 
are  mere  irregularities,  which  might  furnish  good  grounds  of  reversal  on  error, 
but  which  could  not  invalidate  the  sale,  when  collaterally  attacked,  if  the  record 
affirmatively  showed  that  the  court  had  jurisdiction.  Saltonstall  v.  Riley,  28  Ala. 
164;  65  Am.  Dec.  334. 

1  See  Black  on  Judgments,  §  261  et  seq. 

5  Post,  §  52.  The  court  must  have  jurisdiction  of  the  subject-matter  and  of 
the  parties  to  render  its  judgment  valid  on  collateral  attack.  Commercial  Bank 
v.  Martin,  9  Sm.  &  M.  (Miss.)  613.  "  Jurisdiction  may  be  defined  to  be  the  right 
to  adjudicate  concerning  the  subject-matter  in  a  given  case.  To  constitute  this 
there  are  three  essentials:  First,  the  court  must  have  cognizance  of  the  class  of 
cases  to  which  the  one  adjudged  belongs;  second,  the  proper  parties  must  be 

13 


98  MAKKETAlil.K    T1TI.K    TO    KEAh    ESTATE. 

ant ; J  (2)  of  the  subject-matter  of  the  suit :  <  3 »  of  the  res,  or  prop- 
erty in  contest.2  Want  of  jurisdiction  in  one  or  more  of  these 

J  »' 

respects  is  not  necessarily  fatal  to  the  judgment  of  the  court  if  it 
have  jurisdiction  upon  other  grounds.  Thus,  a  proceeding  against 
a  non-resident  defendant  by  which  it  is  sought  to  attach  his  lands 
within  the  territorial  jurisdiction  of  the  court  is  essentially  a  pro- 
ceeding in  /'f-m,  and  the  fact  that  proceedings  by  publication  to 
bring  the  defendant  before  the  court  are  too  defective  for  that  pur- 
pose will  not  affect  the  validity  of  a  judgment  or  decree  for  the  sale 
of  the  land  and  the  title  of  a  purchaser  thereunder.3  The  converse 
of  the  foregoing  proposition,  that  is,  that  the  existence  of  jurisdic- 
tion upon  one  or  more  grounds  does  not  necessarily  validate  a  judg- 
ment if  jurisdiction  upon  another  ground  be  wanting,  is  also  true. 
Thus,  in  a  suit  for  the  administration  of  a  trust,  the  court  may  have 
jurisdiction  of  the  cause  of  action  and  of  the  persons  of  the  defend- 
ant;, but  if  jurisdiction  of  the  rex  IKJ  wanting,  for  example,  if  the 

present;  and,  Ihinl,  the  point  decided  must  be,  in  substance  and  effect,  within 
the  issue."  Munday  v.  Vail.  34  X.  .T.  Law,  422. 

1  Cooper  v.  Reynolds,  10  Wall.  (U.  S.)  308,  316.  The  text  is  grounded  upon 
the  distinctions  formulated  by  Mr.  Justice  MILLER  in  this  case,  as  follows:  "  It  is 
as  easy  to  give  a  general  and  comprehensive  definition  of  the  word  jurisdiction 
as  it  is  difficult  to  determine  in  special  cases  tbe  precise  conditions  on  which  the 
right  to  exercise  it  depends.  This  right  has  reference  to  the  power  of  the  court 
over  the  parties,  over  the  subject -matter,  over  the  re*  or  property  in  contest,  and 
to  the  authority  of  the  court  to  render  the  judgment  or  decree  which  it  assumes 
to  make.  By  jurisdiction  over  the  subject-matter  is  meant  the  nature  of  the 
cause  of  action  and  of  the  relief  sought;  and  this  is  conferred  by  the  sovereign 
authority  which  organizes  the  court,  and  is  to  be  sought  for  in  the  general  nature 
of  ita  powers,  or  in  authority  specially  conferred.  Jurisdiction  of  the  person  is 
obtained  by  the  service  of  process,  or  by  the  voluntary  appearance  of  the  party 
in  the  progress  of  the  cause.  Jurisdiction  of  the  re*  is  obtained  by  a  seizure 
under  process  of  the  court,  whereby  it  is  held  to  abide  such  order  as  the  court 
mny  make  con<-crning  it.  The  power  to  render  the  decree  or  judgment  which 
the  court  may  undertake  to  make  in  the  particular  cause,  depends  upon  the 
nature  and  extent  of  the  authority  vested  in  it  by  law  in  regard  to  tbe  subject- 
mutter  of  the  cause." 

*  BUck  JudgmU,  $  240. 

•Cooper  v.  Reynold*,  10  Wall.  (V .  S.i  3(W;  Voorhees  v.  Bank  of  I*.  S.,  10  Pet. 
(U.  8.)  449.  The*c  nre  leading  cases,  and  in  them  it  win*  held  that  defects  and 
irregularilic*  in  the  affidavit  and  publication  of  notice  in  proceedings  by  attach- 
ment* agnitiAt  Don-resident*,  and  the  fact  that  the  record  docs  not  show  compli- 
ance with  all  the  M-ittilnry  requisite*  in  such  CARTS,  did  not  go  to  the  jurisdiction 
of  the  court,  and  <IM  not.  therefor*-,  render  the  judgment  in  the  cause  absolutely 


CAVEAT    EMPTOR.  99 

trust  subject  consist  of  lands  lying  in  another  State  and  consequently 
beyond  the  jurisdiction  of  the  court,  a  decree  of  the  court  directing 
a  sale  of  those  lands  will  be  absolutely  void.1  And,  generally,  it 
may  be  laid  down  as  a  rule  that  if  from  any  cause  or  in  any  respect, 
the  court  have  not  jurisdiction  to  render  the  judgment  or  decree 
under  which  a  judicial  sale  is  made,  a  purchaser  at  such  sale  will  not 
acquire  a  title  that  will  be  safe  from  the  attacks  of  parties  to  such 
judgment  or  of  those  claiming  under  them.2  Collateral  attack  in  the 
sense  in  which  it  is  here  used  means,  of  course,  attack  in  a  collateral 
proceeding  by  some  one  who  is  bound  by  the  judgment,  either  as 
party  or  privy,  such  as  the  defendant  himself,  his  heirs  and  assigns. 
These  cannot  maintain  ejectment  against  the  purchaser  or  his  assigns 
unless  the  proceedings  were  absolutely  void  for  want  of  jurisdic- 
tion.3 But  the  title  of  a  purchaser  at  a  judicial  sale  may  always  be 

void,  though  they  were  errors  for  which  the  judgment  might  be  reversed.  Such 
proceedings  are  essentially  in  rem ;  the  judgment  or  decree  binds  nothing  but 
the  property  levied  upon,  and  the  court  acquires  jurisdiction  by  an  actual  levy, 
notwithstanding  the  defective  service  of  process  on  the  defendant.  In  Ohio 
several  cases  decide  that  a  statutory  proceeding  for  the  sale  of  a  decedent's 
lands  for  the  payment  of  his  debts  is  essentially  in-  rein,  and  that,  though  the 
heir  was  required  to  be  made  a  party  to  the  proceeding,  the  failure  to  serve 
process  on  him  did  not  oust  the  court  of  its  jurisdiction  and  invalidate  the  title  of 
a  purchaser.  Sheldon  v.  Newton,  3  Ohio  St.  494,  506,  citing  Robb  v.  Irwin,  15 
O'.iio,  689;  Snevely  v.  Lowe,  18  Ohio,  368.  An  attachment  against  a  non-resi- 
dent is  a  proceeding  in  rem,  arid  after  the  return  of  the  officer  "levied  on 
the  property  of  the  defendant"  the  jurisdiction  has  fully  attached,  and  it 
becomes  a  cause  in  court.  Sutherland  v.  De  Leon,  1  Tex.  250;  46  Am.  Dec.  100. 
The  principle  established  by  the  case  of  Cooper  v.  Reynolds,  10  Wall.  (U.  S.) 
308,  aud  stated  in  the  text  does  not  seem  to  have  been  recognized  in  all  of  the 
States.  Thus  in  New  York  it  has  been  held  that  a  judgment  founded  on  an  affi- 
davit for  an  order  of  publication  against  a  non  resident  which  fails  to  state  that 
the  defendant  could  not  be  found  within  the  State  "after  due  diligence"  is  void 
for  want  of  jurisdiction,  and  that  a  purchaser  thereunder  acquires  no  title. 
McCracken  v.  Flanagan,  127  N.  Y.  493;  141  N.  Y.  174;  36  N.  E.  Rep.  10. 

1  As  was  held  in  Contee  v.  Lyons,  19  D.  C.  207. 

2  See  cases  cited  post,  "Doubtful  Title,"  ch.  31,  §  297,  notes;  Stansbury  v. 
Inglehart,  20  Dist.  Col.  134;  Frost  v.  Atwood,  51  Mich.  360;  Calvert  v.  Ash, 
47  W.  Va.  480;  35  S.  E.  887.     A  sheriff's  deed  under  a  judgment  void  on  its 
face  for  want  of  jurisdiction  does  not  even  make  a  cloud  on  the  title  which 
will  sustain  a  bill  quia  timet.     Holland  v.  Johnson,  80  Mo.  34.     A  purchaser 
at  an  execution   sale  under  a  void  judgment  for  want  of  service  of  process 
acquires  no  title.     Roberts  v.  Stowers,  7  Bush   (Ky.),  295. 

3  It  is  hardly  necessary  to  say  here  that  an  independent  action  or  proceeding  by 
a  party  to  a  judgement,  which  has  for  its  sole  object  the  vacation  of  the  judgment. 


100 


MABKETABLE    T1TLK -TO    REAL    ESTATE. 


overthrown  by  one  not  a  party  or  privy  to  such  proceedings,  who 
can  show  a  better  title  in  himself;  that  is,  a  title  paramount  to  that 
which  passed  under  the  judgment  or  decree  of  the  court.  A 
stranger  to  the  record,  however,  cannot,  of  course,  avail  himself  of 
want  of  jurisdiction  on  the  part  of  the  court,  or  of  any  error  or 
irregularity  in  the  proceedings,  whether  they  render  the  judgment 
absolutely  void  or  voidable  only.1 

Jurisdiction  of  the  person  consists  in  power  over  the  person  of 
the  defendant,  obtained  by  the  service  of  process  or  by  the  volun- 
tary appearance  of  the  defendant  in  the  progress  of  the  cause.  If 
the  court  have  not  jurisdiction  of  the  cause  upon  other  grounds,  a 
judgment  founded  upon  process,  insufficient  of  itself,  or  insufficiently 
executed,  to  bring  the  defendant  into  court,  is  absolutely  void.2 

upon  the  ground  of  fraud,  surprise  or  mistake,  is  not  a  "  collateral  attack  "  in  the 
sense  in  which  that  expression  is  generally  used.  That  is  a  dire  ft  attack,  and  is 
always  admissible;  otherwise  every  defendant  would  beat  the  mercy  of  fraudu- 
lent officers  of  the  court  colluding  with  the  plaintiff  to  deprive  him  of  his  prop- 
erty. Thus  an  officer's  return  of  service  of  process  may  be  impeached  in  a 
direct  proceeding  after  judgment.  Black  on  Judgments,  £  288.  and  cases  there 
cited.  The  writer  docs  not  remember  to  have  seen  inany  of  the  books  a  definition 
of  the  terras  "  direct  "  and  "  collateral ''  attack  as  used  in  reference  to  the  validity 
of  judgments,  probably  because  they  have  been  considered  too  plain  to  require 
definition.  "  Direct  attack  "  would  seem  to  consist  in  some  proceeding,  either 
by  motion,  petition,  appeal  or  writ  of  error  in  the  suit  in  which  the  judgment 
was  rendered,  or  to  consist  in  a  separate  suit,  usually  in  equity,  Ix-tween  the 
original  parties  or  their  privies,  having  for  its  sole  object  the  reversal  or  vacation 
of  such  judgment  either  for  error,  fraud,  mistake  or  like  fatality  in  the  rendition 
or  procuration  of  the  judgment.  "  CoHntcrtil  attack"  would  seem  to  consist  in 
an  attempt  to  show  the  invalidity  of  the  judgment  in  any  proceeding  between 
the  parties  or  their  privies,  which  does  not  have  for  its  sole  object  the  vacation  of 
the  judgment,  such,  for  example,  as  an  action  against  the  purchaser  for  the  pur- 
chase money,  ejectment  against  the  purchaser,  trespass  to  try  title  and  the  like; 
or  an  action  by  the  purchaser  to  recover  the  possession,  or  to  recover  back  the 
purchase  money  or  the  like.  This  seems  sufficiently  clear.  It  has  been  held, 
however,  that  ejectment  by  the  execution  debtor  against  a  purchaser  under  the 
execution  upon  the  ground  that  the  sale  and  proceedings  thereafter  are  void  is  a 
direct  and  not  a  collateral  attack.  Gue  v.  .Tones,  23  Neb.  684;  41  N.  W.  Rep.  555. 
If  this  decMon  be  sound,  the  question  what  is  and  what  is  not  "direct "  or  "  col- 
lateral "  attack  will  be  involved  in  much  obscurity  and  doubt. 

'  Swiggnrt  T  Hnrber,  4  Srarn.  (111.)  364;  89  Am.  Dec.  418. 

» Mercantile  Trust  Co.  v.  So.  Park  Res.  Co..  (Ky.)  22  8.  W.  Rep,  314.  An 
{•Valid  order  of  publication  agninst  a  non-resident  heir  is  a  fatal  objection  to  a 
title  obtained  through  proceedings  in  which  such  order  was  mode.  Mcuifec  v. 


CAVEAT    EMPTOR 

J  urisdictioii  of  the  subject-matter  consists  in  the  right  to  enter- 
tain the  suit,  having  regard  to  the  nature  of  the  cause  of  v  ition  and 
of  the  relief  sought.  Thus,  if  the  court  should  take  jurisdiction  of 
a  cause  in  plain  violation  of  a  statute  which  prescribes  and  limits  its 
jurisdiction,  it  is  conceived  that  a  judgment  therein  rendered  would 
be  absolutely  void,  and  a  title  dependent  thereon,  such  as  a  pur- 
chaser could  not  be  required  to  take.1  A  court  may  be  said  to  have 
jurisdiction  of  the  subject-matter  of  a  suit  when  it  has  the  right  to 
proceed  to  determine  the  controversy  or  question  in  issue  between 
the  parties,  or  grant  the  relief  prayed.2  If  the  judgment  or  decree 
be  entirely  aside  from  the  issue  raised  in  the  record,  it  will  be  abso- 
lutely void  and  treated  as  a  nullity  in  a  collateral  proceeding.3  To 
this  subdivision,  namely,  want  of  jurisdiction  of  the  subject-matter 
must,  for  want  of  a  more  precise  classification,  be  referred  those 
cases  in  which  a  court  has  transcended  its  powers  in  any  respect 
other  than  a  mere  misconception  of  the  law,  Or  misapplication  of 
the  law  to  the  facts.  Thus,  where  the  clerk  of  a  County  Court  has 

Marye,  (Va.)  4  S.  E.  Rep.  726.  If  the  court  take  jurisdiction  of  a  party  to  tiie 
suit  as  being  of  age,  he  cannot  attack  the  proceedings  collaterally  and  show  that 
he  was  an  infant.  He  must  assert  his  rights  in  some  direct  proceeding  to  vacate 
the  judgment  or  decree  that  has  been  rendered  against  him.  England  v.  Garner, 
90  N.  Car.  197. 

1  An  example  of  a  title  under  a  judicial  sale  void  for  want  of  jurisdiction  of  the 
subject-matter  is  found  in  the  case  of  Stausbury  v.  Inglehart,  20  D.  C.  134.     The 
statute  law  of  the  District  of  Columbia  permits  a  Chancery  Court  to  sell  the  lands 
of  an  infant  held  jointly  or  in  common  with  another.     It  was  held  that  this  did 
not  extend  to  a  case  in  which  the  interest  of  the  adult  tenant  was  in  possession 
and  that  of  the  infant  in  expectancy,  and  that,  therefore,  the  court  had  no  juris- 
diction to  decree  the  sale  of  an  infant's  estate  in  remainder,  and  that  a  purchaser 
thereunder  acquired  no  title. 

2  Language  of  the  court  in  Hope  v.  Blair,  105  Mo.  85;  16  S.  W.  Rep.  595. 

8  This  rule  is  illustrated  by  the  case  of  Munday  v.  Vail,  34  N.  J.  Law,  418. 
This  was  a  suit  in  ejectment  against  a  purchaser  at  a  judicial  sale,  in  a  suit  to  set 
aside  a  voluntary  conveyance.  The  only  relief  prayed  in  the  last-named  suit  was 
that  the  conveyance  should  be  declared  void  as  to  the  plaintiff,  but  the  decree 
went  further  and  declared  the  deed  to  be  void  even  as  between  the  parties  thereto. 
This  decree  was  declared  a  nullity  and  judgment  was  entered  for  the  plaintiff  in 
ejectment.  So,  also,  in  Corwith  v.  Griffing,  21  Barb.  (N.  Y.)  9,  where  a  decree 
confirming  a  report  of  commissioners  in  partition,  who  had  in  their  allotment 
embraced  lands  not  embraced  in  the  pleadings,  was  held  null  and  void  as  to  such 
lands. 


102  MARKETABLE    TITLE    TO    REAL    ESTATE. 

made  a  defective  certificate  of  acknowledgment  of  a  deed  by  a  mar- 
ried woman,  it  was  held  that  the  court  had  no  power  or  jurisdiction 
to  make  an  order  directing  the  clerk  to  execute  a  second  certificate, 
properly  setting  forth  the  facts,  and  that  a  title  depending  upon 
such  certificate  could  not  be  sustained.1  Care  must  be  taken,  how- 
ever, to  distinguish  between  cases  in  which  the  court  errs  in  assum- 
ing jurisdiction,  and  those  in  which  the  error  consists  in  a  misappli- 
cation of  the  law  to  the  facts  of  the  case. 

Jurisdiction  of  the  res  consists  of  power  over  property,  real  or 
personal,  sought  to  be  disposed  of  by  judgment  or  decree  in  the 
cause.  If  the  proceeding  is  essentially  in  rem,  jurisdiction  is 
obtained  by  a  seizure  under  process  of  the  court,  whereby  the  prop- 
erty is  held  to  abide  such  order  as  the  court  may  make  concerning 
it.*  It  is  also  necessary  that  property  sought  to  be  made  the  sub- 
ject of  a  decree  or  judgment  of  the  court  shall  lie  within  the  terri- 
torial jurisdiction  of  the  court.  A  court  of  one  State  has  no  power 
to  decree  a  sale  of  lands  lying  in  another  State,  and  the  title  of  a 
purchaser  derived  through  such  a  sale  is  bad.3  In  some  cases  it  has 
been  said  that  upon  collateral  attack  of  a  judgment,  if  the  record 
does  not  show  the  necessary  jurisdictional  facts,  their  existence  will 
be  presumed,  in  the  absence  of  evidence  to  the  contrary.4  It  may 
be  doubted  whether  this  is  an  accurate  statement  of  the  rule ;  the 
admission  of  extraneous  evidence  to  show  the  non-existence  of 

1  Elliott  v.  Piersol,  1  Pet.  (U.  8.)  888.  The  proceeding  In  which  the  court 
directed  the  amended  certificate  to  be  made  appears  to  have  been  altogether 
tz  partt.  The  order  was  made  on  the  motion  of  the  purchaser  about  ten  years 
after  the  original  certificate  was  made.  If  the  proceeding  had  been  inter  partet 
and  the  power  of  the  court  to  make  the  order  had  been  disputed,  it  would  be 
difficult  to  distinguish  the  case  from  one  in  which  the  court  errs  in  compelling  a 
married  woman  to  execute  a  deed,  or  from  any  other  case  in  which  it  errs  in 
decreeing  that  a  particular  thing  l»e  done.  To  the  principle  stated  in  the  text  is 
to  be  referred  also  the  case  of  Driggere  v.  Cassaday,  71  Ala.  529,  where  it  was 
held  that  a  probate  court  had  no  jurisdiction  to  order  a  sale  of  lands  for  delin- 
quent taxe*. 

•Black  on  Judgment*,  g§  271,  278,  276;  Thompson  v.  Tolraie,  2  Pet.  (U.  8.) 
157:  Orignon  v.  A»tor,  2  How.  (U.  8.)  819;  Florentine  v.  Barton,  2  Wall.  (U.  8.) 
806. 

•Roror  Jud.  Sales,  ft  58;  Contee  v.  Lyons,  19  D.  C.  207. 

4Erans  T.  Aahbr,  22  Ind.  \\  The  leading  case  of  Thompson  v.  Tolmie,  2 
Pet  (U.  8.)  157.  deciders,  n*  we  have  seen,  thnt  extraneous  evidence  cannot  be 
received  to  «ln>\v  want  «»f  jiH«-dir-t!on. 


CAVEAT    EMPTOR. 


103 


jurisdictional  facts  would  in  effect  neutralize  the  rule  that  where 
the  record  is  silent  as  to  such  facts  their  existence  will  be  conclu- 
sively presumed.  Evidence  dehors  the  record  cannot  be  admitted 
to  show  want  of  jurisdiction. 

Objections  to  title  founded  upon  want  of  jurisdiction  in  a  court 
to  enter  a  judgment  or  decree  under  which  the  title  is  derived  are 
materially  limited  and  restricted  by  two  rules  of  law,  which  it 
is  important  to  bear  in  mind.  The  first  rule  is,  that  if  jurisdiction 
do  not  affirmatively  appear  from  the  record  itself,  evidence  dehors 
the  record,  that  is,  extraneous  evidence,  will  not  be  received  to  show 
that  in  fact  the  court  had  no  jurisdiction.  It  will  be  conclusively 
presumed,  except  where  the  record  itself  shows  the  contrary,  that 
there  was  a  concurrence  of  all  things  necessary  to  give  the  court 
jurisdiction  according  to  the  maxim  omnia  praesumuntur  rite  et 
solenniter  esse  acta.1  Especially  will  such  a  presumption  be  made 

1  Black  on  Judgments,  §§  271,  273,  276.  Thompson  v.  Tolmie,  2  Pet.  (U.  S.) 
157;  Grignon  v.  Astor,  2  How.  (U.  S.)  319;  Parker  v.  Kane,  22  How.  (U.  S.)  1; 
4  Wis.  1;  65  Am.  Dec.  483.  Duncanson  v.  Hanson,  3  App.  Cas.  (D.  C.)  361. 
Henefee  v.  Harye,  (Va.)  4  S.  E.  Rep.  726.  Where  a  statute  required  that 
notice  of  levy  of  an  execution  on  land  should  be  served  on  the  execution 
defendant  five  days  before  the  term  of  court  to  which  the  execution  must  be 
returned,  it  was  held  that  it  will  be  conclusively  presumed  from  rendition  of  the 
judgment  that  such  notice  had  been  given.  Burke  v.  Elliot,  4  Ired.  L.  (N. 
C.)  355;  43  Am.  Dec.  142.  Where  the  record  shows  that  process  was  ordered 
against  infant  defendants,  and  that  at  a  following  term  a  guardian  ad  litem 
was  appointed,  it  will  be  presumed,  on  collateral  attack,  that  such  defend- 
ants were  brought  regularly  into  court,  though  no  actual  service  of  pro- 
cess on  them  appears.  Thompson  v.  Doe,  8  Blackf.  (Ind.)  336;  Brack- 
enridge  v.  Dawson,  7  Ind.  383.  See,  also,  Horner  v.  State  Bank,  1  Ind.  130:  48 
Am.  Dec.  355.  A  title  under  a  decree  in  a  suit  for  specific  performance  against 
infant  defendants  will  not  be  declared  invalid  in  a  collateral  proceeding  on  the 
ground  that  the  record  does  not  show  notice  to  the  infants,  they  having  been  rep- 
resented by  guardian  ad  litem.  Horner  v.  State  Bank,  1  Ind.  130;  48  Am.  Dec.  355. 
If  the  record  shows  that  a  guardian  ad  litem  was  appointed  for  infant  defendants 
"on  motion,"  but  does  not  show  on  whose  motion,  it  will  be  presumed  that  the 
infants  were  present  in  court  when  the  motion  was  made,  and  that  they  had 
notice  of  the  proceeding.  Thompson  v.  Hart,  8  Blackf.  (Ind.)  336;  Horner  v. 
State  Bank,  1  Ind.  130;  48  Am.  Dec.  355;  Waltz  v.  Barroway,  25  Ind.  383.  The 
fact  that  the  record  of  a  sci.fa.  against  infant  heirs  to  revive  a  judgment  against 
the  ancestor  does  not  show  the  appointment  of  a  guardian  ad  litem  will  not  invali- 
date the  title  of  a  purchaser  under  the  judgment.  Evans  v.  Ashby,  22  Ind.  15. 
But  where  it  affirmatively  appears  from  the  record,  as  by  the  statement  con- 


104  MARKETAW.F.    TITLK    TO    REAL    ESTATE. 

when  the  record  is  very  ancient.1  Tlie  second  rule  is  that  the 
recitals  of  fact  in  the  record  from  which  the  jurisdiction  of  the  court 
is  seen,  or  a  recital  of  jurisdictional  facts  contained  in  the  judgment 
itself,  cannot  be  contradicted  or  shown  to  be  untrue  in  any  collat- 
eral proceeding.  The  record  imports  absolute  verity.2  Thus,  to 
illustrate  the  first  rule,  in  a  case  in  which  the  law  provided  that  the 
lands  of  a  decedent  should  not  be  sold  for  partition  until  the  eldest 
child  had  arrived  at  majority,  the  court  refused  to  permit  one  who 

tained  in  an  agreed  case,  that  the  infants  were  not  served  with  process,  had  no 
notice  of  the  proceedings,  and  were  not  in  court  during  their  pendency,  the 
judgment  will  be  held  void  on  collateral  attack.  Doe  v.  Anderson,  5  Ind.  33. 
In  Ford  v.  Wnlswortli,  15  Wend.  (N.  Y.)  449.  it  was  held  that  a  title  under  a 
sale,  in  pursuance  of  a  surrogate's  order,  might  be  collaterally  attacked  for  \vaut 
of  jurisdiction  if  H  did  not  appear  that  an  account  of  the  personal  estate  and  of 
the  debts  of  the  decedent  was  presented  to  the  surrogate,  showing  a  i!c<«-ii  v  for 
the  sale,  even  though  the  presentment  of  the  account  is  recited  in  thr  on: 
sale.  Regarding  a  Surrogate's  Court  as  a  court  of  general  and  unlimited  juris- 
diction in  probate  matters,  it  is  not  easy  to  reconcile  this  decision  with  the  rule 
that,  except  where  the  record  shows  the  contrary,  it  will  be  presumed  thnt  every 
thing  necessary  to  give  the  court  jurisdiction  had  transpired  at  the  time  thr  order, 
judgment  or  decree  was  made. 

1  Shackclford  v.  Miller,  9  Dana  (Ky.),  273;  Baker  v.  Coe.  ••»<>  Tr\ 
'Black  on  Judgments  (2d  ed.)(  §  276;  Grignon  v.  Astor,  2  How  .1  s  »  319, 
340,  leading  case.  In  Dorsey  v.  Kendall,  8  Bush  (Ky.).  xMM.  x.'!^.  it  \\  us  h.  Id  that 
a  judgment,  upon  service  by  publication,  could  not  be  collaterally  attarked  upon 
the  ground  that  the  order  of  publication  had  been  obtained  upon  a  f:il-<-  affidavit 
or  a  fatec  return  of  the  sheriff.  A  judgment  subjecting  the  lands  of  a  nor 
dent  to  the  payment  of  delinquent  taxes,  which,  following  the  form  prescribed 
by  statute,  recites  that  "  notice  has  been  given  as  required  by  law,"  cannot  be 
attacked  in  a  collateral  proceeding,  though  the  statute  expressly  provides  that 
the  taxpayer  shall  be  notified  by  publication  in  a  newspaper  in  the  county  where 
the  land  lies.  Driggs  v.  Cassaday.  71  Ala.  529.  It  is  to  be  borne  in  mind  thnt 
while  recitaU  in  the  record  cannot  be  contradicted  in  a  collateral  proceed  in-,  tin  v 
are  net  conclusive  upon  the  parties  if  founded  in  fraud  or  mistake.  Thus,  if  the 
officer  return  process  as  "  executed  on  the  defendant  A  .."  and  such  return  be 
fraudulent,  in  that  service  was  never  made,  or  erroneous,  in  that  the  officer  n.i- 
took  another  person  for  A.,  the  defendant  A.  cannot  show  these  facts  in  a  col- 
lateral proceeding,  such  as  ejectment  by  or  against  a  purchaser  at  a  sale  « 
quent  upon  such  return;  but  he  can  by  some  direct  proceeding,  either  by  motion. 
petition  or  other  proceeding  in  the  cause  in  which  the  sale  was  made,  if  still  pend- 
ing, or.  if  not  pending,  then  by  an  independent  action  or  suit  on  his  part  against  all 
person*  fulerested.  Tacate  the  judgment,  orders  and  subsequent  proceedings  in 
tae  cauac  by  which  he  is  deprived  of  his  rights. 


CAVEAT    EMPTOE.  1Q5 

was  bonnd  by  a  decree  for  sale  in  a  snit  for  partition,  to  show  that 
the  eldest  child  had  not  reached  full  age  when  the  decree  was 
entered.1  To  illustrate  the  second  rule,  if  the  return  indorsed  by 
an  officer  on  original  process  in  a  suit  show  service  thereof  on  the 
defendant,  evidence  will  not  be  received  in  a  collateral  proceeding 
to  show  that  in  fact  the  return  is  false  and  that  process  was  never 
served  on  the  defendant,  nor  that  the  process  was  not  served  at  the 
time  stated  in  the  return,  nor  that  the  person  making  the  return 
was  not  the  proper  person  to  serve  the  process.2 

It  should  be  remarked  here  that  the  rule  as  to  presumption  of 
jurisdictional  facts,  where  the  records  do  not  disclose  them,  applies 
only  to  the  judgments  of  a  court  of  original,  general  jurisdiction. 
E"o  such  presumption  arises  in  favor  of  the  judgment  of  a  court  of 
special  or  limited  jurisdiction  ;  the  proceedings  of  such  a  court  must 
set  forth  the  facts  and  evidence  on  which  the  judgment  is  rendered.3 
What  is  and  what  is  not  a  court  of  general  jurisdiction  is  a  question 
which  cannot  be  inquired  into  here.  It  must  suffice  to  say  that,  as 
a  general  rule,  the  Superior  Courts  in  each  State,  as  distinguished 
from  those  courts  in  which  the  pleadings  are  oral,  such  as  a  Justice's 
Court,  are  courts  of  general  or  unlimited  jurisdiction ;  in  other 
words,  courts  in  which  the  great  mass  of  civil  rights  are  enforceable 
in  the  first  instance.4 

1  Thompson  v.  Tolmie,  2  Pet.  (U.  S.)  157. 

2  Burke  v.  Elliot,  4  Ired.  L.  (K  C.)  355,  359;  43  Am.  Dec.  142. 

3Grignon  v.  Astor,  2  How.  Pr.  (U.  S.)  319,  341,  a  leading  case.  In  Young  v. 
Lorain,  11  111.  624,  636;  52  Am.  Dec.  463,  it  was  held  that  the  Circuit  Court  in 
that  State,  while  a  court  of  general  common-law  and  chancery  jurisdiction,  was 
a  court  of  special  or  limited  jurisdiction  in  respect  to  its  statutory  power  to  order 
the  sale  of  infant's  lands,  and  that  a  proceeding  for  such  sale  which  did  not  show 
upon  its  face  that  all  the  personal  estate  of  the  infant  had  been  exhausted,  that 
being  by  statute  a  condition  precedent  to  the  power  to  order  the  sale,  was  abso- 
lutely void  and  afforded  no  protection  to  the  purchaser.  And  in  Strouse  v.  Dren- 
nan,  41  Mo.  289,  it  was  held  that  the  statutory  jurisdiction  of  a  County  Court  to 
order  the  sale  of  an  infant's  lands  for  his  education  and  support  was  special  and 
limited,  and  that,  where  the  record  in  such  a  case  failed  to  show  that  the  sale  was 
made  upon  due  appraisement,  and  that  other  statutory  requisites  had  been  com- 
plied with,  an  order  confirming  the  sale  was  absolutely  Toid. 

4  In  this  connection  the  following  observation  from  Mr.  Black's  excellent  work 
on  Judgments  will  be  found  useful  (§  283):  "In  all  the  States  there  are  courts 
having  original  jurisdiction  of  every  (or  nearly  every)  species  of  action  or  pro- 
ceeding known  to  the  common  law,  unlimited  in  respect  to  the  amount  or  the 

14 


106  MARKETABLE   TITLE   TO   REAL  ESTATE. 

The  question,  '*  \Vhen  does  the  fact  that  the  court  had  no  juris- 
diction appear  upon  the  face  of  the  record?''  naturally  arises  here, 
and  presents  some  difficulty  when  considered  in  connection  with 
the  rule  that  in  a  case  in  which  jurisdictional  facts  do  not  appear 
from  the  record,  it  will  be  presumed  that  the  court  was  satisfied  of 
the  existence  of  those  facts  before  entering  a  judgment  or  decree. 
Suppose  a  plaintiff  in  partition  sets  out  A.,  B.  and  himself  as 
owners  of  the  property  to  be  divided,  but  fails  to  make  B.  a  party 
defendant,  and  process  issues  only  against  A.  It  is  plain  that  a 
decree  in  the  cause  directing  a  sale  of  the  premises  would  be  abso- 
lutely void  as  to  B.,  and  a  purchaser  would  acquire  no  title  to  his 
interest.  Suppose,  however,  that  B.  was  made  a  party  and  that 
process  issued  against  him,  but  the  record  failed  to  show  whether  or 
not  the  process  was  ever  served.  Will  it  be  presumed  upon  collat- 
eral attack  that  B.  was  served  with  process,  and  that  such  fact  was 
made  to  appear  to  the  court  before  judgment  was  entered  ?  Does 
such  a  case  stand  upon  the  same  footing  as  one  in  which  the  court 
having  no  jurisdiction  over  the  subject-matter,  except  upon  a  certain 
contingency,  such,  for  example,  as  the  arrival  of  a  party  in  interest 
at  majority,  a  court  in  which  the  judgment  is  attacked  will  presume 
that  such  contingency  had  transpired  and  that  the  court  of  first 
instance  was  advised  thereof  before  judgment  was  entered  ?  It  is 
conceived  that  no  such  presumption  would  be  made  in  favor  of  the 
judgment  or  decree,  and  that  the  rule  that  the  existence  of  juris- 
dictional facts  will  l>e  presumed  does  not  apply  in  cases  in  which  it 
is  the  practice  of  the  courts  to  enter  judgment  only  upon  docu- 
mentary evidence,  such  as  becomes  a  part  of  the  record,  that  juris- 
diction had  been  acquired ;'  nor  in  any  case  in  which  it  is  provided 


character  of  the  controversy.  And  these  are  unquestionably  'superior'  courts 
within  the  meaning  of  the  rule.  And  the  same  is  true  of  courts  possessing  gen- 
eral equity  power*.  In  most  of  the  States  there  are  certain  tribunals  whose 
authority  in  wholly  derived  from  statutes,  who  arc  authorized  to  take  cognizance 
only  of  a  particular  class  of  actions  or  proceedings,  or  to  act  only  in  certain  speci- 
fied circumstances,  whose  course  of  procedure  is  precisely  marked  out,  and  whose 
minute*  or  memorials  are  not  dignified  with  the  character  of  a  record.  And  these 
•n-  undoubtedly  '  inferior'  courts  within  the  meaning  of  the  rule." 

1  8w  Given  v.  McC'arrull.  1  Sm.  &  M.  <Mi*s  )  tt.11.  Ijuighmiin  v.  Thompson,  6 
8m.  «k  M.  <Miw  >  3M»  Burke  v.  Klliott,  4  I  red.  L.  (N.  0.)  855,858;  42  Am.  Dec. 
14'J.  wlii-re  it  wan  -.  ,i.|  that  a  judgment  against  one  not  a  jwrty  is  void,  and  that 


CAVEAT  EMPTOK.  107' 

by  statute  that  the  judgment  roll  shall  show  service  on  the  defend- 
ant where  judgment  by  default  is  rendered,1  nor,  generally,  where, 
ever  it  is  provided  that  the  record  shall  show  certain  jurisdictional 
facts.2 

It  follows  from  the  foregoing  principles  that  the  only  case,  apart 
from  fraud,  mistake  or  surprise,  in  which  a  judgment  or  decree  can 
be  declared  void  in  a  collateral  proceeding  is  one  in  which  the  fact 
that  the  court  had  no  jurisdiction  of  the  cause  appears  upon  the  face 
of  the  proceedings  in  which  the  judgment  or  decree  was  rendered. 
In  other  words,  a  judgment  will  be  void  on  its  face  only  where  the 
record  discloses  the  jurisdictional  facts,  and  the  facts  so  disclosed 
are  plainly  insufficient  to  have  conferred  jurisdiction.8  If  this  rule 
be  sound,  it  is  plain  that  the  cases  in  which  objection  to  the  title 
may  be  successfully  made  on  the  ground  of  defective  judicial  pro- 
ceedings through  which  the  title  is  derived,  will  be  reduced  to  a 
very  narrow  compass.  This  result  is  not  to  be  regretted.  The 
security  of  titles  to  real  estate  under  judgments  and  decrees  of  court 
is  a  matter  of  the  gravest  importance  to  the  public.  Besides,  the 

it  can  appear  that  he  is  a  party  only  when  the  record  states  an  appearance,  or  the 
official  service  of  process  on  the  person  or  his  property.  Citing  Armstrong  v. 
Harsham,  1  Dev.  (N.  C.)  187;  Irbey  v.  Wilson,  1  Dev.  &  Bat.  Eq.  (N.  C.)  568, 
and  Skiuner  v.  Moore,  2  Dev.  &  Bat.  (N.  C.)  138.  In  Campbell  v.  McCahan, 
41  111.  45,  it  was  held  that  a  deeree  against  a  non-resident,  founded  upon  an 
affidavit  for  an  order  of  publication  which  failed  to  show  upon  its  face  that 
defendant  was  a  non-resident,  was  absolutely  void  and  open  to  collateral  attack. 
Where  it  was  provided  by  statute  that  an  order  for  the  sale  of  an  infant's  lands 
should  not  be  void  for  irregularity  in  the  proceedings  provided  certain  sub- 
stantial facts  appeared,  it  was  held  that  these  facts  must,  on  collateral  attack, 
appear  from  the  record  or  be  shown  by  extraneous  proof  to  exist,  and  that  the 
court  could  not  presume  that  they  had  been  made  to  appear  to  the  court  granting 
the  order.  Cooper  v.  Sunderland,  3  Iowa,  114;  66  Am.  Dec.  52.  In  Bannister 
v.  Higginson.  15  Me.  73,  it  was  held  that  if  an  officer's  return  of  a  levy  of  an  attach- 
ment on  land  do  not  show  by  whom  the  appraisers  of  the  laud  were  chosen,  the 
proceedings  would  be  insufficient  to  pass  the  title.  In  Tederall  v.  Bouknight,  25 
So.  Car.  275,  it  was  intimated  that  that  if  the  record  showed  that  a  "  summons" 
had  been  issued  against  an  infant  defendant  the  court,  on  collateral  attack,  might 
presume  that  it  had  been  served,  though  actual  service  did  not  appear  from  the 
record. 

1  Hyde  v.  Redding,  74  Cal.  493,  501;  16  Pac.  Rep.  380. 

s  Thornton  v.  Mulquinne,  12  lo.  549;  Babbitt  v.  Doe,  4  Ind.  355,  semble. 

3  Black  on  Judgments,  §  278. 


108  MARKETABLE  TITLE  TO  ITEAI.  ESTATE. 

rule  destroys  a  great  source  of  frivolous  objections  to  title,  and 
materially  lessens  the  lalx>rs  of  those  whose  duty  it  is  to  examine 
and  pass  upon  the  validity  of  titles.  The  foregoing  rules  may  be 
regarded  as  established  by  the  preponderance  of  judicial  decision  in 
America.  Rut  they  have  not  jvissed  without  dissent,  and  decisions 
in  conflict  with  the  principles  upon  which  the}'  have  been  rested 
may  lx«  found  in  several  of  the  States.  An  exhaustive  considera- 
tion of  this  subject  is  beyond  the  scope  of  this  work.  The  student 
will  find  the  numerous  csises  in  point  collected  in  a  recent  work 
upon  judgments,  in  which  the  whole  subject  of  collateral  attack  is 
philosophically  and  perspicuously  treated.1 

The  irri|K»rtance  of  these  rules  cannot  be  overestimated.  If  a  title 
derived  through  a  judicial  sale  may  be  overturned  by  matters  in 
jtais  affecting  the  jurisdiction  of  the  court,  concerning  which  the 
most  cautions  purchaser  cannot  inform  himself,  there  would  be  no 
safety  in  purchasing  tinder  a  judgment  or  decree,  and  such  titles 
would  l>c  held  in  as  slight  estimation  as  those  dependent  upon  tax 
sales.  If  the  record  shows  affirmatively  want  of  jurisdiction  in  the 
court  to  render  the  judgment  or  decree,  the  purchaser  can,  by 
examination  of  the  record,  advise  himself  of  that  fact.  But  if  it 
should  !>e  required  of  the  purchaser  to  pursue  his  inquiries  outside 
of  the  record,  and  satisfy  himself  as  to  the  truth  and  adequacy 
thereof  by  the  statements  of  witnesses,  it  is  plain  that  the  examina- 
tion of  a  title  under  a  judicial  sale  would  involve  a  great  ontlay  of 
time  and  money,  with  little  assurance  of  safety  in  the  result,  and 
would  probably  prevent  the  acceptance  of  such  titles,  unless  the 
consideration  should  be  substantially  reduced. 

§  51.  Title  as  affected  by  matters  and  things  occurring 
after  jurisdiction  has  attached.  It  is  obvious  that  a  title  under  a 
judicial  sale  may  l>e  declared  insufficient  upon  grounds  other  than 
want  of  jurisdiction  to  render  the  judgment  or  decree  under  which 
the  sale  WHS  made.  There  may  be  proceedings  in  a  cause  which  are 
no  part  of  the  original  rar  judicata,  and  which  are  never  paused 
upon  until  drawn  in  question  in  some  subsequent  proceeding  involv- 
ing the  title  of  the  purchaser.'  Such,  it  is  conceived,  would  be  a 
conveyance  to  the  purchaser,  the  sale  not  having,  as  yet,  been  con- 

1 1  Black  Judgment*,  rh.  12,  p.  297. 

•Upnon  v.  Howe,  3  Strohh.  (8.  ('.)  108;  49  Am.  Dec.  688. 


CAVEAT  EMPTOE.  109 

firmed.1  The  judgment  too  may  be  voidable  because  the  result  of 
fraud  or  mistake.  And  the  sale  itself  and  a  conveyance  in  pursu- 
ance thereof  may  confer  no  rights  upon  the  purchaser  because 
effected  by  fraudulent  collusion  with  the  officer  of  the  court  or  in 
other  ways  tainted  with  fraud.2  With  respect  to  sales  that  are  void 
for  want  of  confirmation,  it  is  to  be  observed  that  it  is  not  neces- 
sary, according  to  the  weight  of  authority,  that  the  record  shall 
show  a  confirmation  of  the  sale  in  express  terms  in  order  to  validate 
the  title  of  the  purchaser.3  A  decree  directing  the  distribution  of 
the  purchase  money  arising  from  the  salo  or  directing  that  a  deed  be 
made  to  the  purchaser  is  in  effect  a  confirmation  of  the  sale.4  Nor 
is  a  report  of  sale  by  the  officer  of  the  court  indispensable  to  the 
validity  of  the  title  if  it  otherwise  appears  from  the  record  that  a 
sale  was  made  and  that  it  was  confirmed  by  the  court.5 

§  52.  l*raud  as  ground  for  collateral  attack.  The  rights  of  the 
purchaser  at  a  judicial  sale,  where  fraudulent  misrepresentations 
respecting  the  title  were  made,  have  been  already  considered  in  this 
work.6  Fraud  which  exposes  the  title  of  the  purchaser  to  collateral 
attack  is  either  fraud  in  the  procuration  or  rendition  of  the  judg- 
ment or  decree  under  which  the  sale  is  made,  or  fraud  in.  the  sale 
itself.  Fraud  in  the  procuration  of  a  judgment  always  opens  the 
judgment  to  collateral  attack  by  a  party  to  the  suit.  The  rule  that 
fraud  vitiates  everything  applies  to  judicial  records  as  well  as  to 
private  contracts.7  An  illustration  of  this  principle  is  afforded  by 
the  case  of  Mitchell  v.  Kintzer.8  This  was  an  action  of  ejectment 
against  a  married  woman  by  one  who  purchased  the  premises  in  dis- 

1  See  Freeman  Void  Jud.  Sales,  §  43. 

5  In  Singletary  v.  Carter,  1  Bailey  L.  (S.  C.)  467;  21  Am.  Dec.  480,  a  levy  made 
by  a  deputy  sheriff  under  an  execution,  in  which  he  himself  was  plaintiff,  was 
held  void,  and  a  sale  and  deed  in  pursuance  thereof  inoperative  to  vest  title  in 
the  purchaser. 

3  Freeman  Void  Jud.  Sales,  §  44;  Rorer  Jud.  Sales,  §§  3,  16,  107,  129. 

4  Agan  v.  Shannon,  (Mo.)  15  S.  W.  Rep.  757. 

5  Harrison  v.  Harrison,  1  Md.  Ch.  331. 
/Ante,  §  48. 

7  Fermor's  Case,  Co.  Rep.  pt.  3.  p.  77;  Vandever  v.  Baker,  13  Pa.  St.  121,  obiter ; 
Wilson  v.  Smith,  22  Grat.  (Va.)  493;  Lancaster  v.  Wilson,  27  Grat.  (Va.)  624. 

8  5  Pa.  St.  216;  47  Am.  Dec.  408.    See,  also,  Rhoads  v.  Selin,  4  Wash.  C.  C.  (U. 
S.)  715. 


MARKETABLE  TITLE  TO  REAL  ESTATE. 

ptite  at  an  execution  sale  against  the  husband.  The  premises  cor. 
sisted  of  the  share  of  the  wife  in  her  deceased  father's  estate,  which 
the  administrator  of  that  estate,  fraudulently  colluding  with  the 
husband,  returned  as  having  been  sold  to  the  husband,  there  having 
been  in  fact  no  sale,  and  no  purchase  money  paid  by  the  husband. 
There  was  nothing  on  the  face  of  the  records  of  the  Orphans' 
Court,  ordering  and  confirming  the  sale,  to  impeach  the  validity 
thereof;  but,  upon  the  principle  that  fraud  vitiates  all  acts,  judicial 
as  well  as  others,  judgment  was  rendered  for  the  wife,  the  defend- 
ant. Generally,  it  may  be  said  that  if  a  purchaser  at  a  judicial  sale 
buy  with  knowledge  of  fraud  in  the  proceedings  anterior  to  the  sale, 
he  cannot  hold  the  property  as  against  the  claims  of  a  party  to  the 
suit  who  was  injured  by  the  fraud.1  But,  of  course,  a  purchaser, 
without  notice  from  a  purchaser  with  notice  of  the  fraud,  would  be 
protected. 

Fraud  in  making  a  judicial  sale,  other  than  fraudulent  representa- 
tions as  to  the  title,  exposes  it  to  collateral  attack  at  the  suit  of  the 
party  injured.2  It  sometimes  happens  that  the  officer  making  the 
sale  either  directly  purchases  the  property  himself,  or  indirectly 
through  some  one  whom  he  has  procured  to  bid.  Such  a  sale  is 
prlnia  facie  fraudulent  and  conveys  no  title  as  against  those  in 
whose  behalf  the  sale  was  made.  So,  also,  where  the  officer  fraudu- 
lently colludes  with  the  purchaser  in  conducting  the  sale  in  such  a 
manner  that  the  property  is  sold  for  less  than  its  value,  or  the  pur- 
lies  in  interest  otherwise  deprived  of  their  rights.8  It  is  a  fraud 


1  Morris  v.  Gentry,  80  N.  Car.  248.  252,  where  the  point  was  Mt,-r :  citing, 
however.  University  v.  Lassiler.  83  N.  Car.  88:  Ivey  v    MrKinnon,  M   N    <   ,i 
661;  Sulton  v.  Schonnald,  86  N.  Car.  198;  41  Am.  Hep.  455;  Gilbert  v   .James,  86 
N.  Car.  244. 

•Freeman  Void  Jud.  Sales,  8  40.  In  Sumner  v.  Sessions,  94  N.  Car.  871,  a 
distinction  wns  drawn  between  cases  in  which  the  officer  selling  purchased 
directly  at  his  own  sale,  and  those  in  which  he  purchased  from  a  purchii 
hi*  own  sale,  holding  that  in  the  former  case  the  sale  is  a  nullity  nn<l  open  to 
collateral  attack,  and  in  the  latter  ca«c  Mint  the  s:ile  could  only  !>«•  vnr:tied  \>\ 
some  direct  proceeding  instituted  for  that  purpose.  See,  also.  Rutherford  v. 
BUunper.  60  Tex.  447;  Dodcl  v.  Templeman.  76  Tex.  \V.  Hep.  187; 

Flaber  v.  Wood,  65  Tex.  200.    McLaurin  v.  McLaurin,  106  N.  C.  331;  H> 
Rep.  1066. 

» Freeman  Void  Jud.  Sales,  §  40.    Patton  v.  Thorn).  -  ),  288; 

67  Am.  Dec.  228.     Eren  though  the  purchaser  gives  a  '  <r  v. 


CAVEAT  EMPTOR. 

also  if  the  commissioner  or  officer  making  the  sale  himself  purchases 
the  land ;  but  a  party  to  the  suit,  having  it  in  his  power  to  resist  the 
confirmation  of  such  a  sale  and  failing  to  do  so,  will  not,  after  the 
lapse  of  a  considerable  time,  be  permitted  to  file  a  bill  attacking 
the  sale.1  It  is  common  to  except  cases  of  fraud,  mistake  and  surprise 
in  laying  down  the  rule  that  the  title  of  a  purchaser  at  a  judicial 
sale  cannot  be  overturned  by  attacking  in  a  collateral  proceeding 
the  judgment  under  which  the  sale  was  made.  It  is  clear  that  a 
judgment  founded  in  fraud  or  mistake  is  not  conclusive  upon  the 
injured  party.  But  if  land  be  purchased  by  a  party  to  fraudulent 
proceedings  under  which  the  sale  was  had,  or  by  a  party  to  a  judg- 
ment or  decree  founded  upon  mistake,  it  seems  that  the  sale  should 
be  vacated  in  some  direct  proceeding  between  the  parties  rather 
than  by  way  of  collateral  attack.2  It  has  been  so  held  in  a  case  in 
which  certain  lands  were  embraced  in  a  decree  for  sale  by  mistake.8 
The  right  of  a  purchaser  at  a  void  judicial  sale  in  a  proceeding  to 
enforce  a  lien  or  incumbrance,  or  to  subject  property  to  the  pay- 
ment of  a  debt  or  charge,  to  be  substituted  or  subrogated  to  the 
benefit  of  such  debt  or  lien  that  has  been  satisfied  from  the  fund 
arising  from  such  sale  has  been  frequently  declared.4 

Wilson,  27  Grat.  (Va.)  634.  Merwin  v.  Smith,  1  Gr.  Ch.  (N.  J.)  182;  Hodgson  v. 
Farrell,  2  McCart.  (N.  J.)  788.  If  a  purchaser  at  a  judicial  sale  participates  in  a 
fraud  in  making  the  sale  that  fact  may,  in  a  collateral  proceeding,  be  shown  in 
avoidance  of  the  sale.  Griffith  v.  Bogert.  18  How.  (U.  S.)  158. 

1  Walker  v.  Ruffner,  32  W.  Va.  297;  .9  S.  E.  Rep.  265;  Newcomber  v.  Brooks, 
16  W.  Va.  32. 

*  England  v.  Garner,  90  N.  Car.  197:  Hare  v.  Holloman,  94  N.  Car.  14;  Sumner 
v.  Sessions,  94  N.  Car.  371;  Syme  v.  Trice,  9G  N.  Car.  243;  1  S.  E.  Rep.  480; 
Tyson  v.  Belcher,  102  N.  Car.  112;  9  S.  E.  Rep,  G34. 

3. Jones  v.  Cofi'ey,  97  N.  Car.  347;  2  S.  E.  Rep.  165.  This  was  an  action  to 
recover  lands  sold  by  mistake  under  decree  in  a  cause  to  which  the  now  plaintiffs 
were  parties.  The  court  said:  "  The  plaintiffs  contend  that  if  the  land  they  seek 
to  recover  by  this  action  was  embraced  by  and  sold  under  the  decree  in  the  action 
mentioned,  it  was  so  by  mistake  and  misapprehension.  It  appears  that  that 
action  is  not  yet  determined.  If  so.  the  plaintiffs  ought  to  seek  their  remedy  if 
they  have  any  in  it;  if  it  is  determined,  then  by  an  independent  action."  Loyd 
v.  Malone,  23  111.  43;  74  Am.  Dec.  179;  Keuchenbeiser  v.  Beckert.  41  111.  172; 
Lloyd  v.  Kirkwood,  112  111.  329,  338;  Griswold  v.  Hicks,  (111.)  24  N.  E.  Rep.  63. 

4Hudgiu  v.  Hudgin,  6  Grat.  (Va.)  320;  52  Am.  Dec.  124;  Haymond  v.  Cam- 
den,  22  W.  Va.  180;  Hull  v.  Hull,  (W.  Va.)  13  S.  E.  Rep.  49.  In  this  case  the 
court,  by  BRAJSNON,  J.,  after  declaring  the  rule  stated  in  the  text,  continued: 


M  ARKETAP.T.E  TITLE   TO   UK  AT.   ESTATE. 

§  53.  SALES  BY  EXECTJTOBS  AND  ADMINISTRATOBS.  Sale 
in  pursuance  of  power  in  will.  Sales  by  executors  and  adminis- 
trators are  of  two  kinds:  d)  Sales  under  a  power  contained 
in  a  decedent's  will,  and  (2)  Sales  under  judicial  authority  for 
the  payment  of  the  decedent's  debts.  Sales  of  the  first  kind, 
that  is.  sales  in  pursuance  of  a  power,  do  not  require  judicial 
sanction  in  the  first  instance,  nor  confirmation  after  they  have  been 
made;  the  legal  title  is  vested  in  the  executor  or  administrator  by 
the  will,  ami  his  authority  to  sell  is  complete  as  soon  as  the  formal- 
ities of  the  law  in  respect  to  probate  of  the  will  and  qualification  of 
the  personal  representative  have  been  complied  with,  and  the  con- 
tingencies provided  for  in  the  will  liave  transpired.1 

It  has  l»een  broadly  stated  that  the  maxim  caveat  einjdor  applies 

in  all  of  its  strictness  to  sales  bv  executors  and  administrators.2    This 

• 

is  true  enough  in  respect  to  the  validity  of  legal  proceedings  whence 
the  power  i»  derived,  and,  perhaps,  in  respect  to  restrictions  or  limi- 
tations upon  the  power  in  the  testator's  will.  But  no  reason  is  per- 
ceived why,  in  case  the  testator  himself  had  no  title  to  the  lands,  a 
purchaser  under  a  power  contained  in  the  will,  should,  while  the 
contract  is  executory,  be  compelled  to  pay  the  purchase  money  with 
the  certainty  of  eviction  before  him.  At  least,  it  would  seem,  that 
in  fiuch  a  case  the  maxim  caveat  emptor  should  be  confined  to  cases 
in  which  the  defects  of  title  were  such  as  the  purchaser  might  have 
discovered  by  the  exercise  of  ordinary  diligence,  and  that  in  this 
respect  a  distinction  may  be  made  between  cases  in  which  the  sale 
is  made  under  a  power  and  those  in  which  it  is  made  under  a  judicial 
license.  This  view  is  supported  by  the  leading  case  of  Garnett  v. 
Maeon,*  in  which  a  sale  of  lands  was  made  by  an  executor  under  a 
power  in  the  will  for  the  payment  of  debts.  It  was  held  that  the  execu- 
tor could  not  comj>el  specific  performance  of  the  contract  unless  he 

"  Principk*  of  justice  demand  this,  and  courts  of  equity  have  rawed  up  this 
principle.  a  being  of  their  creation  called  '  substitution,'  unknown  to  the  common- 
law  forums,  to  accomplish  the  ends  of  justice,  and  I  know  of  no  more  signal 
instance  to  exemplify  thu  di«|x>Mtion  as  well  as  the  power  of  equity  to  ndopl 
HM«Dit  to  accomplish  right  than  this  of  substitution  aocordcd  purchasers  under 
void  proceeding  whose  money  ha*  pone  to  satisfy  liens  jjood  against  the  debtor." 

1  Worrwr  I*w  of  AuminiMration.  f  404:  Freeman  Void  Jud.  Sales,  |  9. 

*  Win-rwr  I.4IW  of  Administration  ft  4H4. 

J2  Hr«k.  (C.  C.)  213.  Alt*Ht  v.  Mernitz  (Tex.  Civ.  App.i,  83  S.  W.  801. 
In  re  Mulholland'M  Katate,  221  IV.  73  All.  1)32,  132  Am.  St.  Hep.  791. 


CAVEAT   EMl'TOR.  113' 

was  able  to  convey  a  clear  title.  The  opinion  was  by  Chief  Justice 
MARSHALL,  and  there  was  no  ad  version  to  the  maxim  caveat  emptor. 
A  sale  by  an  administrator  or  executor,  directly  or  indirectly  to 
himself,  acting  under  a  power  in  the  will,  is  void.1  But,  of  course, 
the  sale  must  be  vacated  by  some  appropriate  proceeding  for  that 
purpose.  It  has  been  seen  that  such  a  sale  under  judicial  license  is 
in  some  of  the  States  a  nullity,  absolutely  void,  and  open  to  col- 
lateral attack,  while  in  others  a  sale  by  the  officer  indirectly  to  him- 
self, though  fraudulent,  must  be  vacated  in  some  direct  proceeding 
and  cannot  be  shown  in  a  possessory  action  by  or  against  the 
purchaser.2  The  distinction,  for  the  purposes  of  this  work,  is  com- 
paratively unimportant,  for  we  are  here  considering  defects  for 
which  a  purchaser  may  reject  a 'title  ;  and,  to  a  purchaser  from  an 
administrator  who  has  made  a  fraudulent  sale  to  himself,  it  is  imma- 
terial whether  the  title  is  liable  to  be  attacked  in  a  collateral  pro- 
ceeding or  in  a  direct  proceeding,  -since  in  either  case,  if  charged 
with  notice  of  the  fraud,  he  would  lose  the  estate. 

§  54.  Sales  in  pursuance  of  judicial  .license.  The  maxim 
caveat- emptor  has  been  rigorously  applied  in  most  of  the  .American 
States  'to  sales  by  -executors  and  administrators  under  judicial 
authority,  whether  in  respect  to  inherent  defects  in  the  title  or  to 
those  which  result  from  errors  and  irregularities  in  the  proceedings 
whence  the  authority  to  sell  is  derived.  The  sale,  like  a  tax  sale, 
is  of  the  title  such  as  it  is,  good  or  bad,  and  the  purchaser  is  conclu- 
sively presumed  to  have  purchased  with  that  understanding.8  This 

VDavies  v.  Hughes,  (Va.)  11  S.  E.  Rep.  488.  Prentice  v.  Townsend,  127 
N.  Y.  Supp.  1066;  143  App.  Div.  151. 

2  Ante,  §  52. 

3  Woerner  Law  of  Adm.  §  484;  Rorer  ou  Jud.  Sales  (2d  ed.),  §  476;  Freeman 
Void   Jud.    Sales,  §  48;  Schouler  on  Exrs.    (2d  ed.)  §   515.     AVorthington  v. 
McRoberts,  9  .Ala.  297;  Corbett  v.  Dawkins,  54  Ala.  282;  Burns  v.  Hamilton, 
33  Ala.   210;  70  Am.   Dec.  570;  Boiling  v.   Jones,  67  Ala.  508.     Protmte  sales, 
however,  are  subject  to  confirmation  by  the  court  in  this  State.     See  above  cases. 
Colbert  v.    Moore,  64   Ga.  502;  Jones  v.   Warnock,  67  Ga.    484.     Bingham  v. 
Maxey,  15  111.  295;  Moore  v.  Neil,  39  111.  256;  89  Am.  Dec.  303;  McConnell  v. 
Smith,  39  111.  279;  Wing  v.  Dodge,  80  111.  564;  Tilley  v.  Bridges,  105  111.  336. 
Ripley  v.  Kepler,   94  Ind.   308.     Hale  v.  Marquette,  69  Iowa,  376.     Short  v. 
Porter  44  Miss.   533;  Hutchins  v.   Brooks,  31  Miss.  430.     Bashore  v.  Whisler,  3 
Watts  (Pa.),  490;  Fox  v.  Mensch,  3  W.  &  S.  (Pa.)  444;  King  v.  Gunnison,  4  Pa. 
fit.  172;  Sackett  v.  Twining,  18  Pa.  St.  199;  57  Am.  Dec.  599.     Lynch  v.  Baxter, 
4  Tex.  431;  51  Am.  Dec.  735;  Williams  v.  McDonald',  13  Tex.  322;  Rice  v.  Burnett, 

15 


114  MARKETABLE  TITLE  TO  KEAL  ESTATE. 

rule  has  been  carried  so-  far  that  it  lias  even  been  held  that  the 
administrator  is  under  no  obligation  to  disclose  incumbrances  on  the 
estate  or  defects  in  the  title  that  are  known  to  him,1  unless  it  be  a 
want  of  title  resulting  from  his  own  act  or  that  of  the  intestate.3 
In  most  of  the  States  it  seems  that  probate  sales  are  not  reported 
to  the  court  for  confirmation,  and,  therefore,  cannot  be  regarded  as 
judicial  sales.  The  authority  to  sell  is  granted  by  the  court,  but 
thereafter  the  court,  with  respect  to  the  sale,  i&functus  ojficii*  But 
in  other  States  it  seems  that  such  sales  are  reported  to  court  for 
confirmation.4  Where  that  is  the  case,  no  reason  is  perceived  why 
the  purchaser  should  not  be  permitted  to  resist  continuation  on  the 
ground' that  the  title  is  defective,  as  he  may  do  in  the  case  of  an 
ordinary  judicial  sale.  A  proceeding  on  behalf  of  an  administrator 
to  sell  the  'ands  of  his  intestate  for  distribution  on  the  ground  that 
it  cannot  be  equitably  divided  among  the  heirs,  is  a  proceeding  in, 
rem,  and  r,  bale  made  under  a  decree  in  such  a  case  is  a  judicial  sale 
to  which  the  doctrine  caveat  emptor  applies.  The  purchaser  buys 
at  his  peril,  and  if  there  be  no  fraud  or  mistake  or  ignorance  of  any 
materiaJ  fact  he  must  pay  the  purchase  money  after  confirmation  of 
the  sale,  even  though  he  gets  no  title.5  If  the  purchaser  from  an 

89  Tex.  177.  A  harsh  application  of  the  rule  stated  in  the  text  will  be  found  in  the 
cose  of  Dolling  v.  Jones,  67  Ala.  508,  where  a  widow,  who  purchased  the  lands 
of  her  deceased  husband  at  a  sale  l>y  his  administrator,  was  compelled  to  pay  for 
a  part  to  which  she  was  entitled  as  a  homestead.  STONE,  J.,  dissen ling.  The 
rule  applies  whether  the  sale  by  the  administrator  be  public  or  private.  Kirk- 
land  v.  Wade,  01  Oa.  478 

•Thompson  v.  Hunger.  15  Tex.  523;  65  Am.  Dec.  176;  Hawpe  v.  Smith,  25 
Tex.  Supp.  44#.  Sec,  also,  Ixmdon  v.  Kolnirtson,  5  Bl.  (Ind.)  276. 

•In  Walton  v.  Keagcr,  20  Tex.  103,  110.  it  was  said  that  if  the  administrator 
should  sell  the  land  a  second  time  without  disclosing  the  prior  sale  it  would  be  a 
fmud  upon  the  purchaser  and  would  vitiate  the  second  sale.  The  court  added 
that  it  would  be  equally  a  fraud  upon  a  purchaser  from  the  administrator  if  there 
uad  been  a  prior  salt  by  the  intestate,  whether  the  same  was  known  or  unknown 
lO  tbe  administrator,  if  the  purchaser  had  no  knowledge  of  it.  thus  withholding 
application  of  the  maxim  rarvat  emptor  from  these  cases  in  which  the  want  of 
title  springs  from  the  fault  or  wrongful  act  of  the  administrator,  and  distinguish- 
ing between  such  case*  and  those  in  which  the  title  was  originally  defective. 
But  *ec  Ward  v.  Williams,  45  Tex.  617,  where  this  dictum  is  overruled. 

•Smith  v.  Arnold,  5  Mason  (U.  S.),  414,  420. 

4  Sec  Rorcr  on  Jud.  Sale*,  g  302;  2  Woerner  Am.  Law  of  Admn.  g  1059. 

•  Garret t  v.  Lynch.  45  Ala.  2O4:  Hums  v.  Hamilton.  83  Ala.  210;  70  Am.  Dec.  570. 


CAVEAT   EMPTOtt.  H5 

administrator  or  executor  lias  received  a  conveyance  it  is  immaterial,, 
with  respect  to  liis  asserted  right  to  detain  the  purchase  money  on 
failure  of  the  title,  whether  the  conveyance  was  with  or  without 
covenants  for  title.  If  the  conveyance  was  with  covenants  they  do 
not  bind  the  estate,  and  consequently  the  breach  of  them  affords  no 
counterclaim  to  an  action  for  the  purchase  money.1  And  if  the 
conveyance  was  without  covenants  for  title  the  purchaser  would,  on 
general  principles,  be  without  relief. 

§  55.  Fraud  on  the  part  of  the  representative.  Fraud  in  a 
sale  by  a  fiduciary  or  ministerial  officer  in  representing  that  the  title 
is  good,  or  that  there  are  no  incumbrances  on  the  property,  when  he 
knows  the  contrary,  has  been  distinguished  from  fraudulent  collu- 
sion by  which  the  sale  is  effected,  or  any  other  fraud,  not  in  respect 
to  the  title,  which  avoids  the  sale.  Fraudulent  misrepresentations 
as  to  the  title  or  as  to  incumbrances  cannot,  it  has  been  held  in  some 
cases,  entitle  the  purchaser  to  detain  or  recover  back  the  purchase 
money  from  the  estate ;  they  merely  give  the  purchaser  a  right  of 
action  against  the  fraudulent  vendor  in  his  individual  capacity.2 
Other  cases  hold  that  the  administrator's  representations  as  to  the 
title  are  immaterial  and  irrelevant,  and  that  if  the  purchaser  chooses 
to  allow  himself  to  be  influenced  by  them,  he  has  no  remedy  against 
the  estate,  either  by  way  of  recovery  back  or  detention  of  the  pur- 
chase money.3  A  fortiori,  the  purchaser  cannot  be  relieved  if  the 
representation  was  made  in  good  faith.4  Nor  is  the  administrator 
in  any  case,  it  seems,  bound  to  disclose  imperfections  in  the  title 
and  incumbrances  upon  the  estate.  Mere  silence  on  the  part  of  the 
administrator  in  these  respects  will  not  be  construed  to  be  a  fraud 
on  the  purchaser.5  An  administrator  has  no  right  to  agre^  that  the 

1  Hale  v.  Marquette,  69  Iowa,  376;  Mitchell  v.  McMullen,  59  Mo.  252. 

2  Colbert  v.  Moore,  64  Ga.  502;  Ga.  Code,  §  2622.     Riley  v.  Kepler,  94  Ind.  308. 
Hutchins  v.  Roberts,  31  Miss.  430.     But  see  Hawpe  v.  Smith,  25  Tex.  Supp.  448, 
and  Walton  v.  Reager,  20  Tex.  103. 

3  Fox  v.  Mensch,  3  W.  &  S.  (Pa.)  444.     Even  though  the  representation  by  the 
administrator  was  fraudulently  made.     Ripley  v.  Kepler,  94  Ind.  308. 

4  Coombs  v.  Lane,  17  Tex.  280. 

5Woerner  Am.  Law  of  Admn.  §  484;  Wilson  v.  White,  2  Dev.  Eq.  (N.  Car.) 
29.  It  seems,  however,  that  the  purchaser  in  this  case  knew  of  the  objection  to 
the  title,  which  was  an  outstanding  right  of  dower.  Thompson  v.  Munger,  15 
Tex.  523;  65  Am.  Dec.  176;  Hawpe  v.  Smith,  25  Tex.  Supp.  448. 


116  MARKETAKI.K  TITI.F.  TO  KEAL  ESTATE. 

sale  shall  he  free  from  incuinbrances,1  and  if  an  iucumbrance  exist, 
the  purchaser  mu>t  take  subject  thereto.  Nor  can  he  refuse  to  pay 
the  purchase  money  on  the  ground  that  the  title  was  advertised  to 
be  good.5  Nor  has  the  administrator  a  right  to  represent  that  the 
title  is  good.  lie  should  offer  for  sale  merely  such  right,  title  or 
interest  in  the  estate  us  his  testator  or  intestate  may  have  had.8  If 
there  is  a  cloud  upon  the  title  he  cannot  even  apply  to  a  court  of 
equity  to  remove  it.4  Hut  the  better  opinion  seems  to  be  that  if  the 
administrator  fraudulently  represent  that  the  title  is  good  for  the 
purpose  of  effecting  a  sale,  when  he  knows  that  there  is  no  title,  the 
contract  will  be  rescinded  and  the  parties  placed  in  stain  quo? 


!  Htckley  v.  Biddle.  83  Pu.  St.  276.  But  see  Reiner's  Appeal,  (Pa.  St.)  12  All. 
Rep.  h50,  where  it  was  held  that  un  executor  has  a  right,  when  making  a  sale,  to 
declare  that  the  purchaser  shall  take  free  of  au  incumbrance  on  the  premises,  and 
that  the  estate  must  reimburse  the  purchaser  if  he  be  compelled  to  discharge  the 
lien. 

*  li&Hcck  v.  Gay.  9  Cal.  181;  70  Am.  Dec.  648.     A  number  of  authorities  will 
b :  found  collected  in  the  briefs  of  counsel  and  in  the  opinion  of  the  court  in  this 

.  :.-• 

*  Schouler  on  Executors  (2d  ed.),  §  212. 
4  Le  Moyne  v.  Quimby,  70  HI.  399. 

*  Hickfton  v.  IJnggold,  4?  Ala.  449  ;  Fore  v.  McKenzie,  58  Ala.  115,  provided  the 
purchaser  does  not.  with  knowledge  of  the  fraud,  permit  the  sale  to  be  confirmed. 
Clayton  v.  hunger,  9  Tex.  2*5;  Able  v.  Chandler,  12  Tex.  88;  62  Am.  Dec.  518, 
where  the  Bale  was  of  personal  property;  Roehl  v.  Pleasants.  31  Tex.  45;  98  Am. 
Dec.  514;  Walton  v.  Reager,  20  Tex.  103.     Bond  v.  Ramsey,  89  111.  29.     Ivea  v. 
Ffcnon,  1  Freem.  Ch.  (Mis**.)  280.     As  to  whether  a  prior  conveyance  by  the 
admiuixlratnr  or  tlie  intestate  entitles  the  purchaser  to  relief,  see  Ward  v.  Wil- 
HMDB,  <tr>Tex.  617,  criticiging  Walton  v.  Reager,  20  Tex.  103.     Banks  v.  Ammon, 
27  !•».  St.  172.     Love  v.  Berry,  22  Tex.  371.     "  If  the  administrator  makes  repre- 
sentations which  he  knows  to  be  untrue  for  the  purpose  of  deceiving  the  par- 
clmstT.    who  is  thereby  deceived,  without  that  degree  of  negligence  on   his 
jwrt  which  will  throw  the  responsibility  of  the  description  upon  himself,  we 
hold  that  he  may  show  that  fraud  in   defense  to  the  note.     (Mason  v.    Wait, 
4  Scam.  [111.]  135;  England  v.  Clark.  4  Scam.  [111.]  489;  Welch  v.  Hoyt.  24  111. 
118;  Union  v.   Porter,  31  111.   120.)    This  does  not  dispense  with  the  applica- 
tion of  the  rule  ratxat  emjttor  to  such  sales.     I  know  of  no  case  where  that  rule 
has  ever  l>oen  so  applied  as  to  excuse  a  fraud.     The  utmost  vigilance  may  often 
be  unable  to  guard  against  the  practices  of  the  fraudulent.     As  has  been  repeat- 
edly deddcd  by  this  court,  in  the  absence  of  fraud  the  purchaser  at  such  Rale 
must  not  only  look  out  for  the  title,  but  for  the  quality  of  the  article  whirl)  he 
purchase*.     Nor  cnn  the  administrator  bind  the  estate  by  a  warranty  of  either. 
If  he  assumes  to  do  so  he  would  he  personally  responsible  upon  such  warranty. 


CAVEAT   EMPTOK.  117 

The  rule  that  the  maxim  caveat  emptor  applies  in  its  strictest 
sense  to  sales  by  executors  and  administrators  under  judicial  license 
is  established,  as  we  have  seen,  in  most  of  the  American  States. 
But  in  some  of  the  States  it  does  not  prevail  in  its  fullest  extent. 
Thus,  in  Mississippi  it  has  been  held  that  a  purchaser  from  an 
administrator  under  a  probate  license  may  refuse  to  pay  his  bond 
for  the  purchase  money,  if  the  proceedings  in  which  license  culmi- 
nated fail  to  show  notice  to  the  heirs,  as  required  by  law.1  And  in 
Texas,  where  an  administrator  sold  land  to  which  there  was  no 
other  title  than  a  location  under  a  rejected  and  fraudulent  certifi- 
cate, it  was  held  that  the  rule  caveat  emptor  did  not  apply,  the  court 
saying  that  it  wac  simply  a  question  of  justice,  whether  the  estate 
having  parted  with  nothing,  and  the  purchaser  having  gotten  noth- 
ing, he  should  be  compelled  to  pay.2  So,  also,  it  has  been  held  that 
a  purchaser  from  an  administrator  whose  powers  have  been  revoked 
will  be  relieved  in  equity.3  And  generally  it  has  been  held  that  if  a 
probate  sale  be  void,  either  for  want  of  jurisdiction  in  the  court  to 
order  the  sale,  or  for  want  of  authority  in  the  administrator  to  sell, 
the  purchaser  cannot  be  compelled  to  pay  the  purchase  money.4 
This  is  without  doubt  a  great  relaxation  of  the  rule  caveat  emptor, 
if  not  entirely  inconsistent  therewith,  inasmuch  as  the  defect  would 

This  is  carrying  the  doctrine  of  risk  to  the  purchaser  and  immunity  to  the  estate 
far  enough..  To  go  further  and  sanction  the  practice  of  a  fraud  would  tend  to 
drive  all  men  from  such  sales,  which  would  prove  a  serious  detriment  to  estates." 
CATON,  J.,  in  Ray  v.  Virgin,  12  111.  216. 

1  Gwin  v.  McCarroll,  1  Sm.  &  M.  (Miss.)  351;  Laughman  v.  Thompson,  6  8m. 
&  M.  (Miss.)  259;  Worten  v.  Howard,  2  Sm.  &  M.  (Miss.)  530;  41  Am.  Dec.  607. 
Compare  Mellen  v.  Boarman,  13  8m.  &  M.  100.  Contra,  Bishop  v.  O'Connor,  69 
HI.  431. 

2Roehl  v.  Pleasants,  31  Tex.  45;  98  Am.  Dec.  514.  The  same  observation 
would  apply  with  equal  force  in  a  case  in  which  the  purchaser  is  put  in  posses- 
sion and  afterwards  evicted  by  one  claiming  under  a  paramount  title;  yet,  as  we 
have  seen,  the  purchaser  is  denied  relief  in  such  a  case.  It  is  not  easy  to  recon- 
cile this  decision  with  the  declaration  in  Rice  v.  Burnett,  39  Tex.  177,  that  a  pur- 
chaser at  an  administrator's  sale  is  to  be  regarded  as  a  mere  speculator;  to  win  if 
he  gets  a  good  title,  and  to  lose  if  the  title  be  worthless. 

3  Levy  v.  Riley,  4  Oreg.  392. 

4  Woerner  Am.  Law  of  Admn.  §  485;  Freeman  Void  Jud.  Sales,  §  48.     Wyatt 
v.  Rambo,  29  Ala.  517;  68  Am.   Dec.  89;  Ikelheimer  v.  Chapman,  32  Ala.  676; 
Riddle  v.  Hill,  51  Ala.  224.     Campbell  v.  Brown,  6  How.  (Miss.)  230.    Bartee  v. 
Tompkins,  4  Sneed  (Tenn.),  623. 


118  MARKETATU.K  TITI.K  TO  BEAL  ESTATE. 

be,  in  moat  instances,  palpable  upon  the  face  of  the  proceedings, 
and  one  to  which  the  attention  of  the  purchaser  would  naturally  be 
directed  in  the  first  instance.1  The  right  of  a  purchaser  at  a  void 
probate  sale  to  be  subrogated  to  the  rights  of  the  creditor  whose 
debt  was  paid  out  of  the  proceeds  of  the  sale,  will  be  considered 
hereafter.3  It  seems  that  a  purchaser  at  a  void  probate  sale  cannot, 
where  time  is  not  material,  rescind  the  contract  if  the  heirs  are  will- 
ing to  join  in  a  conveyance  of  the  land  to  him.8  In  the  State  of 
New  York  a  purchaser  at  a  probate  sale  may  refuse  to  complete  his 
purchase  if  the  title  be  bad.  He  cannot  be  compelled  to  accept  an 
unmarketable  title.4  Such  a  rule,  it  is  believed,  conduces  to  the 
interests  and  advantage  of  all  parties,  by  increasing  the  confidence 
of  bidders  at  probate  sales,  by  protecting  purchasers  against  latent 
defects  in  the  title,  and  by  preventing  sacrifice  and  loss  to  the  estate 
of  the  decedent.  In  suits  against  purchasers  at  probate  sales  the 
courts  will  IKJ  slow  to  entertain  objections  to  title  founded  upon 
errors,  defects  and  irregularities  in  the  proceedings  under  which  the 
administrator  derived  his  authority  to  sell.  Mere  omissions  by  the 
administrator,  or  by  the  court,  to  do  certain  things  not  essential  to 
the  jurisdiction  of  the  court  cannot  defeat  the  title  of  a  lona  fide 
purchaser  from  the  administrator.  The  repose  and  security  of  such 
purchaser  in  their  titles  isof  the  greatest  interest  to  the  public,  for  if 
they  could  be  evicted  or  disturbed  in  their  ii<i»r»i<>n  l>ee;uise  of 
such  errors  and  omissions,  probate  sales  would  IK-  dampened,  and 
the  estates  of  decedents  would  be  sacrificed.5  Therefore,  it  has  been 
said  by  the  most  eminent  judicial  authority  that  "  there  are  no 
judicial  sales  around  which  greater  sanctity  ought  t..  he  j. laced  than 
those  of  the  estates  of  decedents,  made  by  order  of  those  courts  to 
which  the  laws  of  the  States  con  tide  full  jurisdiction  over  the  subject.' 
§  56.  Want  of  jurisdiction,  errors  and  irregularities  in  pro- 
bate proceedings.  What  has  been  already  said  in  respect  to  want 

1  Ante,  I  46. 

•Post,  this  cba])t. T 

•Umkiuv.  Reese,  7  Ala.  170.     See.  also,  Uinptou  v.  Usher,  1  H.  M.m.  <Ky.)57. 

4  See  the  caae  of  Wilson  v.  White,  109  N.  Y.  59,  in  which  a  purchaser  from  an 
executor  selling  under  a  surrogate's  order  was  relieved  from  his  l>i<l  on  the 
ground  that  the  title  was  defective.  See,  also,  Hcadrick  v.  Yount,  22  Ivans.  844. 
•T  v.  Boy  re.  12  Tex.  140. 

'Grignon  v.  Aster,  2  How.  (U.  S.)  243. 


CAVEAT   EMPTOR. 

of  jurisdiction,  errors  and  irregularities  in  judicial  proceedings  gen- 
erally, as  affecting  the  title  of  a  purchaser  thereunder,  applies  to 
sales  by  executors,  administrators,  or  other  officers  under  probate 
licenses.1  It  may  be  useful,  however,  to  present  here  several 
instances  in  which  the  title  of  a  purchaser  at  such  a  sale  has  been 
declared  sufficient  or  insufficient  with  respect  to  the  validity  of  pro- 
bate proceedings.  It  has  been  held  that  an  order  for  the  sale  of  the 
lands  of  a  decedent,  made  by  the  probate  court  before  petition  filed 
by  the  administrator  for  that  purpose,  and  before  a  return  of  a  cita- 
tion against,  the  heirs  as  required  by  statute,  is  void  for  want  of 
jurisdiction,  and  may  be  attacked  in  a  collateral  proceeding.2  So, 
also,  where  the  proceedings  show  upon  their  face  that  the  adminis- 
trator was  not  entitled  to  letters  of  administration.3  So,  where  no 
order  of  publication  of  the  application  for  license  to  sell  is  made,  as 
required  by  statute.4  So,  also,  where  such  application  tails  to  set 
forth  the  names  of  the  heirs  at  law,  and  the  citation  to  answer  is  not 
directed  to  all  the  heirs,  as  required  by  law.5  The  jurisdiction  of  a 
probate  court  to  order  a  sale  of  the  lands  of  a  decedent  is  founded 
upon  the  fact  that  there  are  debts  due  by  him,  and  a  decree  founded 
upon  a  petition  for  such  sale  which  contains  no  averment  that  the 
estate  is  indebted  is  not  simply  reversible  for  error,  but  is  void  and 
open  to  collateral  attack.6  Payment  of  the  purchase  money  in  full 
and  occupancy  of  the  premises  will  not  give  a  purchaser  at  a  pro- 
bate sale  title  as  against  the  heir,  unless  the  sale  has  been  confirmed 

1  Ante,  p.  76.     Upon  the  general  proposition  that  the  validity  of  a  probate  sale 
cannot  be  attacked  in  a  collateral  proceeding,  except  upon  the  ground  of  want  of 
jurisdiction  to  order  the  sale,  see  Rorer  on  Judicial  Sales,  §  349;  Freeman  Void 
Jud.  Sales,  chap.  2;  2  Woerner  Am.  Law  of  Admn.  §  488. 

2  Finch  v.  Edmondson,  9  Tex.   504;  Campbell  v.  Brown,  6  How.  (Miss.)  106, 
230;  Puckett  v.  McDonald,  6  How.  (Miss.)  269;  Gwin  v.  McCarroll,  1  Sm.  &  M. 
(Miss.)  351. 

3Haug  v.  Primeau,  98  Mich.  91;  57  N.  W.  Rep.  25;  Templeton  v.  Falla  Land 
Co.,  77  Tex.  55;  13  S.  W.  Rep.  964,  and  Texas  cases  there  cited. 

"Cunningham  v.  Anderson,  (Mo.)  17  S.  W.  Rep.  972. 

5  In  re  John's  Estate,  21  Civ.  Proc.  R.  (N.  Y.)  326;  18  K  Y.  Supp.  172. 

8  Lyons  v.  McCurdy,  90  Ala.  493;  8  So.  Rep.  52;  citing  Tyson  v.  Brown,  64 
Ala.  244;  Wilburn  v.  McCalley,  63  Ala.  436;  Quarles  v.  Campbell,  73  Ala.  64; 
Robertson  v.  Bradford,  70  Ala.  385;  Meadows  v.  Meadows,  73  Ala.  356;  Land- 
ford  v.  Dunkton,  71  Ala.  594;  McCorkle  v.  Rhea,  75  Ala.  213;  Ballard  v.  Johns, 
80  Ala.  32;  Morgan  v.  Famed,  83  Ala.  367;  3  So.  Rep.  798. 


]20  MAKKETABI.E  TITLE  TO  RKAT.  ESTATE. 

and  a  conveyance  made.1  A  sale  of  more  than  enough  land  to  paj 
the  debts  of  an  estate,  or  a  license  to  sell  enough  for  that  purpose 
only,  is  absolutely  void.2  If  the  statute  law  provides  that  the  lands 
of  a  decedent  shall  not  l>e  sold  for  the  payment  of  his  debts  unless 
the  personal  estate  is  insufficient  for  that  purpose,  the  court  will  not 
have  jurisdiction  to  direct  a  sale  of  the  lands  unle.-s  the  petition  or 
complaint  avers  the  insufficiency  of  the  personalty  t-o  pay  the  debts.8 
If  notice  of  application  by  the  administrator  for  license  to  sell  be 
not  given  the  heire  and  other  per>«ms  interested,  in  pursuance  of  the 
statute,  the  sale  will  be  void,  and  open  to  collateral  attack.4  But 
want  of  service  of  a  summons  on  th"  guardian  ad  I  item  of  infant 
heirs  makes  the  subsequent  proceeding  reversible  for  error  and  not 
absolutely  void,  and,  therefore,  does  not  all'ect  the  title  of  the  pur- 
chaser.5 Where  the  courts  of  law  or  equity,  and  not  the  probate 
court,  have  power  to  order  a  sale  of  devised  lands  as  assets  for  the 
payment  of  the  testator's  debts,  an  order  of  the  probate  court  direct- 
ing such  a  sale  is  without  jurisdiction  and  absolutely  void.6 

On  the  other  hand,  it  has  been  held  that  the  validity  o I"  an  adminis- 
trator's sale  will  not  be  affected  by  the  fact  that  he  gave  no  bond  to 
conduct  the  sale  properly,7  nor  that  the  record  failed  to  show  a 

'Greenough  v.  Small,  137  IV  St.  138j  20  Atl.  Rep.  553)  Morgan's  Appi,  110 
I'  9fc  -'Tl:  4  Atl.  Rep.  506;  Armstrong's  App. ,  68  Pa.  St.  409;  Demmy's  App., 
43  Pa.  St.  169. 

'Gregson  v.  Tuson.  (Mass.)  26  N.  E.  Rep.  874.  Contra,  Comstock  v.  Crawford, 
3  Wall.  (U.  S.)  896;  Hodges  v.  Fabian,  (So.  Car.)  9  S.  E.  Rep.  820. 

'Ncedhamv.  Salt  Lake  City,  (Utah)  26  Pac.  Rep.  920;  citing  Comstock  v. 
Crawford,  8  Wall.  (U.  S.)  396,  <li<-t>nit. 

«Mickel  v.  Hicks,  19Kana.578;  27  Am.  Rep.  161;  Chicago,  Kan.  &Neb.  R 
v    Cook.  4«  Kans.  83;  22  Pac.  Rep.  988;  Harrison  v.  Harrison,  106  N.  Car.  282; 
11  S.  K    l:<  p   :'.."•• '•.     This  however,  was  not  a  case  of  collateral  attack.     'Flic  rule 
:-;h  Carolina  was  otherwise  «s  to  infants  until  by  statute  service  of  summons 
was  require.!  to  be  made  on  the  infant,      llarr  v.  Hollnmon,  94  N.  Car.  14. 
'in  v.  C<>ok,  HW  X.  C.  3715;   11  S.  E.  Hep.  871. 

•  At  wood  v.  Frost,  :>\  Mich   3t>o;  73  Mich.  07.     Other  instances  in  which  judg- 

or orders  of  probate  courts  have  been  held  void  for  want  of  jurisdiction 

nn<l  open  to  collateral  attack  will  be  found  in  Kertrhem  v.  George,  78  Cal.  697; 

1M  I'm  .  Hip.  372;  Rogers  v.  Clem  mans.  26  Kans.  .7*2;  Coulson  v.    Wing,  (Kans.) 

22  Pac.  Hep.  .YTo;   Hl.-i.-k   v     Hr. •».,  11.   -Jo  K:ms.    1.13.      In   McNally   v.  Hajmes,  59 

">88.  it  was  held  that  a  purchaser  at  a  probate  sale  was  cluiriroiblc  only  with 

notice  of  the  application  for  t lie  sale,  the  order  <>f  sal.- and  the  sale  itself,   with 

n<  •  onipanying  exhibit*,  if  any.  and  that  beyond  these  he  was  not  bound  to  look. 

1  Wyraan  v.  Campbell.  6  Port.  (Ala.)  219;  31  Am.  Dec.  677. 


CAVEAT   EMI'TOR.  121 

necessity  for  the  sale,1  nor  that  an  inadequate  price  was  realized  for 
the  property  sold,2  nor  that  the  administrator  died  pending  the  pro- 
ceeding to  sell.3  Irregularities  in  the  publication  of  notice  to  non- 
resident defendants  in  a  proceeding  to  sell  land  for  the  payment  of 
a  decedent's  debts,  will  not  avoid  the  title  of  the  purchaser.4  A 
recital  in  the  record  of  probate  proceedings  for  the  sale  of  land  that 
notice  of  the  sale  had  been  posted  as  required  by  law  cannot  be 
contradicted  in  a  collateral  proceeding.5  If  the  record  is  silent  as 
to  the  existence  of  certain  jurisdictional  facts,  and  those  facts  are  of 
a  kind  that  are  not  required  to  appear  affirmatively  from  the  record, 
it  will  be  presumed  that  the  court  was  satisfied  of  their  existence  at 
the  time  of  pronouncing  judgment.6  The  regularity  and  validity  of 
the  appointment  and  qualification  of  an  administrator  who  has 
been  recognized  by  the  probate  court  and  authorized  to  sell,  cannot 
be  inquired  into  collaterally.7  Fraudulent  collusion  between  the 
administrator  and  the  purchaser,  by  which  the  land  is  sacrificed, 
furnishes  a  ground  upon  which  the  heirs  may  avoid  the  sale.8  And 
it  may  be  stated  as  a  general  rule  that  in  a  case  of  fraud,  whether 
in  the  procurement  or  rendition  of  the  order  under  which  the  sale 
is  made,  or  in  the  proceedings  anterior  to  or  at  the  time  of  the  sale, 
whereby  the  heirs  are  deprived  of  their  rights  in  the  premises, 
makes  the  title  liable  to  attack  in  the  hands  of  a  purchaser  with 
notice  of  the  fraud.9  But  the  liability  of  the  title  to  attack  on  this 

1  Lynch  v.  Baxter,  4  Tex.  431;  51  Am.  Dec.  535;  Poor  v.  Boyce,  12  Tex.  449. 

s  Williams  v.  Johnson,  (K  Car.)  17  S.  E.  Rep.  496. 

"Palmerton  v.  Hoop",  (Ind.  Sup.)  30  N.  E.  Rep.  874;  Gross  Lumber  Co.  v.  Leit- 
ner,  91  Ga.  810;  18  S.  E.  Rep.  62;  Succession  of  Massey,  46  La.  Ann.  126;  15  So. 
Rep.  6. 

4  Berrian  v.  Rogers,  43  Fed.  467;  Mohr  v.  Maniere,  101  U.  S.  417.  Contra,  Mohr 
v.  Tulip,  40  Wis.  66. 

6  Richardson  v.  Butler,  82  Cal.  174;  23'Pac.  Rep.  9. 

6  Ante,  §  50.  McMillan  v.  Reeves,  102  N.  Car.  550;  9  S.  E.  Rep.  449,  where 
the  authority  of  counsel  to  act  for  those  not  served  with  process  was  presumed 
to  exist,  the  same  not  having  been  disputed  in  the  proceedings  complained  of. 
Mills  v.  Herndon,  77  Tex.  89;  13  S.  W.  Rep.  854;  Price  v.  Springfield  Real 
Estate  Assn.,  (Mo.)  10  S.  W.  Rep.  57. 

1  Poor  v.  Boyce,  12  Tex.  440. 

8 Freeman  Void  Jud.  Sales,  §  40. 

9  In  Lynch  v.  Baxter,  4  Tex.  431;  51  Am.  Dec.  735,  it  was  intimated  that  if  a 
sale  by  an  administrator  for  the  payment  of  debts,  when  there  was  no  necessity 
16 


MARKETABLE  TITLE  TO  REAL  ESTATE. 

ground  will  not  relieve  the  purchaser  from  the  contract,  if  the  fraud 
apj)eared  upon  the  face  of  the  proceedings,  and  might  have  been 
discovered  by  the  exercise  of  due  diligence.1 

§  57.  SHERIFF'S  SALES.  Want  of  title  in  execution  defendant. 
(rr/ieralrule*.  The  title  which  a  purchaser  a r  an  execution  sale 
will  acquire  may  l>e  worth  less  for  three  realms;  (1)  Because-  of  a 
complete  want  of  title  on  the  part  of  the  execution  defendant ;  the 
purchaser  may  be  evicted  by  some  one  having  a  title  paramount  to 
that  which  the  officer  undertakes  to  sell.  (2)  Because  the  judg- 
ment or  order  under  which  the  officer  professes  t<>  act  is  void  for 
want  of  jurisdiction  in  the  court,  or  for  some  other  reason,  is  open 
to  collateral  attack,  and  insufficient  to  bar  a  recovery  of  the  estate 
from  the  purchaser  by  the  judgment  debtor  or  those  claiming  under 
him.  (3)  Because  of  some  matter  transpiring  subsequent  to  the 
judgment  or  order  under  which  the  sale  is  made,  avoiding  the  sale, 
for  example,  a  lew  and  sale  after  the  return  day  of  the  pr> 
under  which  the  officer  acts. 

The  maxim  or  rule  caveat  emptor  applies  with    peculiar   force  to 
-  in  which  then-  i-  a  complete  want  of  title   in   the   execution 
:idant.s     In  most  of  the  States  there  is   no   r.-port  or  continua- 
tion «>f  the  silt- ;  no  time  is  given  for  examination  of  the  title:  the 

tin -refor,    was    fraudulently   procured   liy   the  purchaser  in  collusion   with  the 
administrator,  the  title  thereunder  would  he  open  to  attack. 
1  Hiee  v.  Hurnelt,  3U  Tex.  177. 

1  Freeman  on  Executions,  ;•  33o;  Hernwn  on  Executions,  p.  li'.i.j;  Freeman  Void 

Ju.l   s.ilrv  r:  is;  RorerouJud.  Sales,  p.  603,  Title  "SlmitTs.    Am  A-  Kng.  Encyc. 

of  L.     The  Monte  Allegro.  9  Wh.   (I".    S.)  filfi.      Here   the  sale    was  of  per-onal 

pii.|Nrty,  l)i:t  the  ease  lias  heeii   constantly  cited  in  applying  the  snm»  principle 

t<- sales  of  realty  under  execution.      Ijin.ir  \.  Waring.  •,'."»   Ala.  C,-j:,:  r,n   Am     !)(•<•. 

'loodlmr  v     Daniel,  ss    Ala.  :>*:<;    7  So.  Kcp.    'J54:  Thomas   v.    <;ia/.-n.-r.   90 

Ala.  .V;T;  MS,,.  Hrp.   i:,::       D.mly  v.  Hectnr.  ]0.\rk.  -JH;    1  Am.  Dee    -Jl'J      .l..|nis 

*     1'  ''I'-'      -Methvin   v.    Bexley,    IS  (la     551.      F.ngland    v.    Clark,    4 

SCMB.   'III.-    l-<;.    \Vall.rid-e   v.    Day.   :<l   111.   y?»;  83  Am.    Dec.  it   T. 

I...,  k.ir.l.  <»  |;|    n;i.  Al.lay  v.  H,M-k  Island  Co.,  45  111.  App.  Oti.     \\-st  v.  Weir, 

4  Wn.kf  .Ind.i  !:::,.  \V:il,I,.|i  v.  (Jridley.  W  Ind    .VW.     Holt/.inKer  v.  Kdwards,  51 

:««.     Tr.-pinw  x.  I!,,,,-.   10  K,ins.   KG.     Hand   v.   Grant,  10  Sm.-l.   A    M. 

Miller  v.  Finn.  1  N,  I-   -JM       Mervin  v.  Vaulicr,  7 

N    •'  Vattierv.  Lytle.  U  Ohio.  111.  Corwin   v.  Henham.  2  Ohio  St.  :W; 

IT.    Itaird,  .'{  Ohio  M     IT!       \\  ei.lli  r  v.    Hank,    i:  U     ,l'a>    KW 

\      Mathi,,t.  '.IS,  r-    A:  U    ,  I'n  ,  :!:»'.>,    Friedly  v     Sehe.-t/.  A    U. 

'I    Am     !'  -iiiith  v.    Painter.  :,  Serj;.   &  H   (I'a.)   228;  9   Am. 


CAVEAT   EMPTOR.  123 

purchaser  pays  the  cash,  the  officer  executes  a  deed,  and  the  transac- 
tion is  ended,  so  that  there  is  no  room  for  the  application  of  any 
asserted  equitable  right  to  detain  the  purchase  money  where  the  titte 
fails,  as  in  the  ordinary  case  of  vendor  and  vendee.  Such  sales 
stand  much  upon  the  same  footing  as  tax  sales.  The  purchaser 
regulates  his  bid  by  his  knowledge  that  he  will  get  merely  such  title 
as  the  execution  defendant  has,  though  it  be  utterly  worthless ;  con- 
sequently the  property  is  usually  knocked  down  to  him  at  a  nominal 
figure.  Again,  the  sheriff  stands  in  the  place  of  the  execution 
debtor,  and  sells  merely  such  title  or  interest  as  the  debtor  may 
have  in  the  property.  The  sale  by  the  sheriff  can  amount  to  no 
more  than  a  sale  by  the  debtor  himself  of  merely  such  estate  or 
title  as  he  might  have,  expressly  without  warranty,  and,  as  the  pur- 
chaser could  in  such  case  neither  detain  nor  recover  back  the  pur- 
chase money  from  the  debtor  on  failure  of  the  title,  neither  can  he 
in  such  case  detain  or  recover  it  back  from  the  sheriff  or  the  execu- 
tion creditor.1  Therefore,  stringent  applications  of  the  rule  caveat 

Dec.  344;  Coyne  v.  Souther,  61  Pa.  St.  456;  Wills  v.  Van  Dyke,  106  Pa.  St.  111. 
Upham  v.  Hamill,  11  R.  I.  565;  23  Am.  Rep.  525.  Thayer  v.  Sheriff,  2  Bay  (S. 
Car.),  171;  Harth  v.  Gibbs,  3  Rich.  L.  (S.  Car.)  316;  Wingo  v.  Brown,  14  Rich. 
(S.  Car.)  103.  Oberthier  v.'  Stroud,  33  Tex.  525.  Henderson  v.  Overton,  2  Yerg. 
(Tenn.)  393;  24  Am.  Dec.  492,  unless  the  sale  was  made  under  a  void  judgment; 
Bostick  v.  Winton,  1  Sneed  (Tenn.),  541.  Saunders  v.  Pate,  4  Rand.  (Va.)  8, 
where,  however,  the  sale  was  of  personal  property.  In  Methvin  v.  Bexley,  18 
Ga.  551,  a  purchaser  at  a  sheriff's  sale,  who  had  been  evicted  from  the  premises, 
filed  a  bill  to  recover  from  the  sheriff  a  surplus  remaining  in  the  sheriff's  hands 
after  satisfying  the  execution,  which  surplus  the  sheriff  claimed  by  virtue  of  other 
fi.  fas.  against  the  same  defendant.  It  was  held  that  the  rule  caveat  emptor 
applied,  and  that  the  bill  could  not  be  maintained.  The  rule  caveat  emptor,  as  it 
applies  to  sheriffs'  sales,  is  thus  defended  by  the  court  in  Thayer  v.  Sheriff,  2 
Bay  (S.  C.),  169:  "These  sales  are  made  by  operation  of  law,  in  which  the  will 
and  consent  of  the  defendants  are  never  consulted.  They  are  forced  upon  them, 
whether  they  assent  or  dissent  to  or  from  them,  and  it  is  their  right,  whatever 
that  may  be,  more  or  less,  that  is  sold  by  the  sheriff,  who  is  a  public  officer  of 
justice.  There  is  no  warranty  in  law,  either  express  or  implied,  raised  on  any  of 
the  parties  concerned  in  such  a  sale;  neither  on  the  part  of  the  former  owner,  t he- 
defendant,  nor  the  sheriff,  who  is  the  mere  organ  of  the  law  for  transferring  the 
right  of  the  defendant.  Caveat  emptor,  under  these  circumstances,  is  the  best 
possible  rule  that  can  be  laid  down  or  adopted.  Every  man  who  goes  to  a 
sheriff's  sale  ought  to  take  care  and  examine  into  the  title  of  the  defendant  care- 
fully before  he  attempts  to  bid;  and  that  is  one  reason,  among  many,  why  prop- 
erty is  in  general  sold  so  much  under  its  real  value  at  these  sales." 
1  Methvin  v.  Bexley.  t*  Gh.  551. 


124  M  \RKF.T.\nT.K   TTTT.K  TO   HEAT.  I'.ST.YTE. 

empioi'  will  be  found  in  cases  of  sales  by  sheriffs  or  other  minis- 
terial officers  under  executions,  attachments,  or  other  legal  process.1 
The  rule  />//•  applies  with  additional  force  if  the  pur- 

chaser at  a  sal''  under  execution  was  warned  that  the  title  was  in 
di>pute.2  The  purchaser  at  a  sale  under  execution  not  only  takes 
merely  such  title  a.-  the  execution  debtor  may  have,  but  he  takes 
subject  to  all  eqiii;5e>  which  may  exist  against  the  latter,"  whether 
he  has  n  >ricr  ot'  them  or  not.4  A  purchaser  at  an  execution  sale  is 
not  enti  •  privileges  of  a  purchaser  without  notice.  Thus, 

it  has  l>een  held  that  he  takes  subject  to  the  right  of  a  third  person 
to  require  a  conveyance  of  the  bare  legal  title  from  the  execution 
debtor  where  Mich  person  had  purchased  from  the  debtor  and  paid  the 
purchase  money  without  taking  a  conveyance  before  the  execution 
sale.9  The  same  rule  was  applied  in  a  case  in  which  the  title  to  the 
property  was  being  litigated  between  the  execution  defendant  and 
a  stranger,  the  purchaser  objecting  that  a  Us p<~  //</<  //.v  had  not  been 
docketed,  as  the  law  required.6  So,  also,  where  the  execution  plain- 
till  had  agreed  with  the  defendant  that  the  lien  of  his  judgment 
should  be  postponed  and  made  >ubsequent  to  a  junior  mortgage.7 
But  inasmuch  a-  a  purchaser  at  a  sale  under  execution  succeeds  to 
all  the  rinliN  <>f  tin-  execution  plaintiff,  the  rule  that  he  takes  sub- 
ject to  all  equities  against  the  execution  defendant  must  obviously 
betaken  with  the  qualification,  namely,  that  if,  under  the  llegi.-iry 
Ad-,  the  judgment  under  which  the  sale  is  made  is  a  lien  on  the 
premises  in  the  hands  of  a  purchaser  from  the  judgment  debtor,  the 

'A  sale  by  a  sheriff,  fort-closing  a  mortgage,  is  a  "sheriff's  sale,"  within  the 
meaning  of  the  rule  caveat  emptor.     Walbridire  v.  Day   31  111.  379;  88  Am.  Dec. 

m 

1 0berthier  v.  Strond.  :*::  T>  \    BBS]   B«>r<>  v.  Harris,  i:t  I,ea  riYnn.),  86. 

•Oatenmnv.  Ifeildwin.  G  Wall.  (U.  S.)  116;  1M1  v.  Flahen  694.    See 

cases  Hied  Vol.  6,  U.  8.  Dig.  (1st  series)  Ml,  £  'J202.  If  tin-  execution  ilHVn.lam 
hnvi-Miily  ;in  i-(|itit:il>lc  i-»t;iti-.  nnd  li:i>  n<'t  ]>:iiil  tlu-  mtirv  pur;'h:iM-  money,  a 
piin-linw-r  undi-r  the  execution  ac(|uin'.s  only  his  int.-iv-i.  ami  can  iret  a  title  only 
I >y  doiim  those  things  UJMUI  pcrformunce  of  which  the  debtor  himself  would  have 
lii-i-ii  . -in!.!.  .1  to  demand  a  conveyance  of  the  title.  Walke  v.  Moody,  65  N.  Car. 
099;  Morgan  v.  Ilou-e.  :,:t  M,,.  -Jin. 

i:  >   v    Martin,  6  I:  >    Car.)  169;  51  Am.  Dec.  418. 

*  Georgetown  v.  Smith.  \  Crunch  C.  C.  (U.  8.)  91. 

•  Rollins  v.  Henry,  78  N.  Car 

'  Fn*t  v    Vonkere  Sov.  Hank.  70  N.  Y.  558;  26  Am.  Rep.  627. 


CAVEAT   EMPTOB.  125 

purchaser  under  the  execution  succeeding  to  the  benefit  of  that  lien 
will  take  the  title  discharged  from  the  equitable  rights  of  the  pur- 
chaser from  the  judgment  debtor.1  So,  if  the  judgment  debtor 
incumbers  the  property  after  the  lien  of  the  judgment  has  attached, 
a  subsequent  sale  under  the  judgment  will  carry  a  title  to  the 
purchaser  discharged  of  the  incumbrance.2  It  has  been  held, 
also,  that  the  purchaser  will  not  be  entitled  to  relief  upon  the 
ground  that  all  parties  were  mistaken  in  supposing  that  the  exe- 
cution defendant  had  an  interest  in  the  premises  subject  to  execu- 
tion.3 ^Tor  will  a  purchaser  at  an  execution  sale  be  released  upon 
the  ground  that  he  had  never  attended  such  a  sale  before,  and  not 
hearing  the  terms  of  the  sale,  supposed  himself  to  be  buying  the 
entire  estate  in  question,  and  not  merely  the  debtors  "  right,  title 
and  interest  "  therein.4  But  it  has  been  held  that  if  the  execution 
plaintiff  himself  purchase  the  premises  under  a  mistake  as  to  the 
application  of  the  proceeds  to  his  lien,  the  same  being  absorbed  by 
other  liens  on  the  property,  the  sale  will  be  set  aside  upon  his 
motion.5  In  some  of  the  States  sales  of  realty  under  execution  are 
required  to  be  reported  to  court  and  confirmed  before  they  become 
conclusive  upon  the  parties.  Wherever  this  practice  prevails,  it 
seems  that  the  purchaser  may  resist  the  confirmation  of  the  sale 
upon  the  ground  that  the  title  is  bad.6 

1  Halley  v.  Oldham,  5>B.  'Mon.  (Ky.)  238;  41  Am.  Dec.  262;  Riley  v.  Million,  4 
J.  J.  M.  (Ky.)  895;  Fosdick  v.  Burr,  3  Ohio  St.  471. 

'Nickles  v.  Haskins,  15  Ala.  619;  50  Am.  Dec.  154;  Spoor  v.  Phillips,  37  Ala. 
193.  Million  v.  Riley,  1  Dana  (Ky.),  359.  Tinney  v.  Watson,  41  111.  215;  Goff  v. 
O'Conner,  16  111.  421.  Campbell  v.  Lowe,  9  Md.  500;  66  Am.  Dec.  339.  Wil- 
liamson v.  Johnston,  12  N.  J.  L.  86;  Den  v.  Young,  12  N.  J.  L.  300:  Bloom  v. 
Welsh,  27  N.  J.  L.  177. 

3  Freeman  Void  Jud.  Sales,  §  49.  See  post,  "  Mistake  "'  ch.  35 ;  Wingo  v. 
Brown,  14  Rich.  L.  (S.  C.)  103.  The  purchaser  in  this  case  refused  to  comply 
witli  the  terms  of  sale,  the  land  was  resold,  and  he  was  held  liable  for  the 
difference.  Norman  v.  Norman  26  So.  Car.  41. 

4Upham  v.  Hamill,  11  R.  I.  565;  23  Am.  Rep.  .125. 

5Cummin<rs'  Appeal,  23  Pa.  St.  50!).  citing  Ontario  Bank  v.  Lansing,  2 
Wend.  (N.  Y.)  260,  and  Post  v.  Leet,  8  Paige  Ch.  (N.  Y.)  336,  Avhich.  however, 
\\-ns  a  sale  by  a  master  in  chancery,  and  not  by  the  sheriff.  But  see  Davis  v. 
Hunt,  2  Bailey  (S.  C.),  412,  where  an  execution  plaintiff,  who  purchased  at 
his  own  sale  under  the  mistaken  supposition  that  his  lien  on  the  property 
was  the  oldest,  was  compelled  to  complete  his  purchase. 

8  Wood  v.  Lev-is,  14  Pa.  St.  9;  Am.  &  Eng.  Encyc.  of  L.  "  Sheriffs." 


126  MARKETABLE  TITLK  TO  REAL   ESTATE. 

In  certain  of  the  States,  a  purchaser  under  execution,  who  has 
lH-f  n  evicted  by  one  having  a  title  paramount  to  that  of  the  execu- 
tion debtor,  has  been  permitted  to  recover  the  purchase  money  from 
the  execution  plaintiff  upon  the  ground  that,  ex  &quo  et  bono,  the 
purchaser  is  better  entitled  to  the  money  than  the  execution  cred- 
itor is  to  withhold  it  from  him.1  This  doctrine,  however,  is  plainly 
inconsistent  with  the  rule  caveat  etnptor.  If  the  purchaser  cannot 
detain  the  unpaid  purchase  money,  a  fortiori  he  cannot  recover  it 
back ;  and  if  he  cannot  recover  it  back  from  the  execution  debtor, 
a  fortiori  he  cannot  recover  it  back  from  the  execution  creditor. 
Therefore,  it  has  been  frequently  held  that  want  of  title  in  the 
debtor  gives  the  purchaser  no  right  of  action  against  the  creditor.2 
And  these  cases,  it  is  believed,  are  sustainable  both  upon  principle 
and  authority.  Of  course,  however,  the  creditor  may,  by  his  con- 

1  Henderson  v.  Overton,  2  Yerg.  (Tenu.)  393;  24  Am.  Dec.  492.  Chapman  v. 
Brooklyn,  40  N.  Y.  :<7e.  Citizens'  Bank  v.  Freitag,  37  La.  Ann.  71;  Gaines  v. 
Merchants'  Bank,  2  La.  Aun.  479;  Mclntosh  v.  Smith,  2  La.  Ann.  756.  It  will 
be  remembered  that  the  rule  careat  emptor  is  not  strictly  observed  in  Louisiana, 
the  civil  law  prevailing  there.  In  New  York,  the  execution  purchaser,  if  evicted 
because  of  irregularity  in  the  proceedings,  or  error  in  the  judgment  on  which 
the  execution  was  issued,  may  recover  the  purchase  money  from  "  the  person  for 
whose  benefit  the  property  was  sold."  Code  C.  P.  N.  Y.  §§  1479, 1480;  Gerrard's 
Titles  to  Real  Estate  (3d  ed.),  797.  Several  cases  have  been  cited  to  this  proposi- 
tion which  decide  nothing  more  than  that  money  paid  under  a  mistake  of  fact 
may  be  recovered  back.  Among  others  are  Kheel  v.  Hicks.  25  N.  Y.  %J89;  Kings- 
ton Bank  v.  Eltinge,  40  N.  Y.  391;  100  Am.  Dec.  516;  Kelly  v.  Solari.  !•  M.  &  W. 
64;  Miller  v.  Duncan,  6  B.  &  C.  671.  The  case  of  Moses  v.  M<  -1'hcrlan.  2  Burr. 
1012;  1  W.  Bl.  219,  has  been  relied  upon  in  support  of  this  doctrine,  but  it  can 
hardly  be  considered  in  point,  for  there  the  defendant  had  agreed  in  writing  to 
indemnify  tin-  plaintiff  against  his  indorsement  of  certain  notes,  on  which  indorse- 
ment the  defendant  afterwards  recovered  judgment,  in  violation  of  his  agreement. 

U*.  S.  v.  Duncan,  4  McLean  (V .  S.),  607.  Dunn  v.  Fra/icr.  8  Blackf.  (Ind.) 
488.  Whitmore  v.  Parks,  8  Humph.  (Teun.)  95;  Kimbrough  v.  Burton,  3 
Humph.  (Tenn.)  110.  Judice  v.  Kerr,  8  La.  Ann.  462.  England  v.  (lurk,  4 
Scam.  (111.)  486,  the  court  saying:  "The  plaintiff  has  received  no  more  than  he 
was  legally  entitled  to,  and.  although  it  came  from  the  purchaser  ami  he  has  lost 
the  consideration  for  which  he  paid  his  money,  it  was  not  the  procurement  or 
agency  of  the  plaintiff  that  induced  the  purchase  or  occasioned  the  loss.  He 
allowed  the  law  to  take  its  course  without  interposition  or  control,  and  by  receiv- 
ing from  its  officer  the  fruits  of  its  process,  he  violated  no  legal  or  equitable 
obligation,  and  incurred  neither  the  one  nor  the  other,  to  refund  that  which  he 
was  entitled  to  rc<  <  i  - 


CAVEAT  EMPTOR. 

duct,  make  himself  liable  to  the  purchaser,  as  where,  knowing  the 
title  to  be  worthless,  he  induces  the  purchaser  to  bid  by  representing 
it  to  be  good.1 

§  58.  Exceptions.  The  rule  that  a  purchaser  of  a  worthless  title 
at  a  sale  under  execution  is  without  relief  is  undoubtedly  sustained 
by  the  weight  of  authority  in  America.2  But  exceptions  to  that 
rule  have  been  declared.  Thus,  it  has  been  broadly  laid  down  that 
a  sale  of  land  on  execution  will  be  set  aside  on  the  motion  of  the 
purchaser  if  it  appear  that  the  execution  defendant  had  no  interest 
in  the  land  when  sold  ;8  especially  if  the  execution  plaintiff  himself 
be  the  purchaser.4  In  some  of  the  States  the  right  of  the  purchaser 
to  relief  when  there  is  no  title  is  fixed  by  statute.5  If  the  execution 
be  levied  by  mistake  on  the  lands  of  a  stranger,  the  levy  and  sale 
will  be  set  aside.6  So,  also,  where  an  execution  has  been  levied  on 

1  Schwinger  v.  Hickock,  53  N.  Y.  280 
4  Ante,  §  57. 

3  Rocksell  v.  Allen,  3  McLean  (U.  S.),  357.    Hitter  v.  Henshaw,  7  Iowa,  97,  an 
early  Iowa  case,  enforces  the  rule  caveat  emptor  against  the' purchaser  under  cir- 
cumstances of  much  hardship.     Dean  v.  Morris,  4  Green  (Io.),  312. 

4  Freeman  Void  Jud.  Sales,  §  49.    Warner  v.  Helm,  1  Gil.  (111.)  220,  234.    Wat- 
son v.  Reissig,  24  111.  281;  76  Am.  Dec.  746.     Lansing  v.  Quackenbush,  5  Cow. 
(N.  Y.)  38.     Ontario  Bank  v.   Lansing,  2  Wend.   (N.  Y.)  260,  semble.     Hitter  v. 
Henshaw,  7  Iowa,  97.     In  Alabama  if  the  execution  plaintiff  purchase  the  prop- 
erty the  execution  is  satisfied  pro  tanto,  whether  the  defendant  had  or  had  not 
title  to  the  property.     Thomas  v.  Glazener,  90  Ala.  537;  8  So.  Rep.  153,  especially 
if  he  had  notice  of  the  want  of  title.     McCartney  v.  King,  25  Ala.  681;  Good  bar 
v.  Daniel,  88  Ala.  583. 

6  Hammersmith  v.  Espy,  19  Iowa,  444.  "When  any  person  shall  purchase  at 
sheriff's  sale  any  real  estate  on  which  the  judgment  upon  which  the  execution 
issued  was  not  a  lien  at  the  time  of  the  levy,  and  which  fact  was  unknown  to  the 
purchaser,  the  district  court  shall  set  aside  such  sale  on  motion,"  etc.  Revision, 
§  3321.  This  has  been  construed  to  mean  that  if  the  judgment  debtor  has  no 
interest  in  the  land  sold  the  purchaser  may  have  the  sale  set  aside.  Chambers  v. 
Cochran,  18  Iowa,  159;  but  see  Holtzinger  v.  Edwards,  51  Iowa,  383,  where  a 
narrower  construction  is  given  to  the  statute.  But  the  purchaser  cannot  under 
this  statute  have  relief  if  he  buys  with  notice  of  the  want  of  title.  Cameron  v. 
Logan,  8  Iowa,  434;  Jones  v.  Blumeustein,  77  Iowa,  361.  In  North  Carolina  and 
California  there  are  also  statutes  giving  a  remedy  to  purchasers  of  worthless 
titles  at  execution  sales.  Halcombe  v.  Loudermilk,  3  Jones  L.  (N.  C.)  491. 
Code  Civil  Proc.  Cal.  §  708. 

6  De  Wolf  v.  Mallett,  3  Dana  (Ky.),  214.  In  this  case,  however,  the  sale  was 
set  aside  at  the  instance  of  the  execution  plaintiff,  the  purchaser  consenting. 


MARKETABLE  TITLE  TO  KEAL  ESTATE. 

personal  property  to  which  the  execution  defendant  had  no  title,  the 
purchaser,  having  been  compelled  to  satisfy  the  true  owner,  has 
l>een  held  entitled  to  reimbursement  from  the  execution  debtor.1 

A  decision  of  the  Kentucky  Court  of  Appeals  establishes  the 
proposition  that  a  purchaser  at  an  execution  sale  may  detain  the 
unpaid  purchase  money  if  the  execution-defendant  had  no  title,  pro- 
vided the  sale  was  made  at  the  instance  of  the  execution-plaintiff.* 
Inasmuch  as  most  execution  sales  are  made  at  the  instance  of  the 
plaintiff,  there  would  be  few  cases  in  which  the  purchaser  would  not 
l>e  |>ermitted  to  detain  the  purchase  money  on  failure  of  the  title,  if 
this  decision  be  sound.  The  decision  is  apparently  at  variance  with 
the  rule  caveat  entptar  as  applied  to  execution  sales.  The  pur- 
chaser, it  is  presumed,  might,  by  examining  the  public  records,  liave 
informed  himself  of  the  existence  of  the  prior  conveyance  whicli 
defeated  the  title. 

In  Louisiana,  where  the  civil  law  prevails,  it  seems  that  tlie  pur- 
chaser at  an  execution  sale  may,  if  the  title  prove  worthless,  recover 
die  purchase  money  either  from  the  plaintiff  or  the  defendant  in  the 
execution.3 

1  Maguire  v.  Marks,  28  Mo.  198;  75  Am.  Dec.  Itl.  Tlichardson  TT.  MeDongall, 
19  Wend.  (X.  Y.)  80.  Sanders  v.  Hamilton,  3  Daua  (Ky.),  550. 

1  Bartlett  v.  London,  7  J.  J.  Marsh.  (Ky.)  (541.  The  case  is  very  brief,  and  its 
importance  justifies  complete  reproduct ion  here.  The  report  consists  only  of 
an  opinion  liy  IJonEtrrsox,  Ch.  J.,  which  was  as  follows:  "The  only  question 
\ve  shall  consider  in  this  case  is,  whether  the  plaintiff  is  entitled  to  a  per- 
petuation of  his  injunction  to  an  enforcement  of  his  sale  bond,  in  consequence 
of  the  fact  that  the  defendant  in  the  execution  under  which  the  land  wns  sold 
(for  which  the  bond  was  given),  hnd  no  title  to  the  land.  It  sufficiently  appears 
that  I).  C.,  the  defendant  in  the  execution,  had  conveyed  the  land  to  A.  C.,  prior 
to  the  date  of  the  execution,  and  there  is  no  proof  tending  to  show  that  the  con- 
veyance was  inoperative  or  fraudulent.  The  legal  title  must,  therefore,  be 
deemed  to  have  been  in  A.  C.  and  not  in  D.  C.  at  the  time  of  the  levy  and  sale 
It  also  suflicieiitly  appears  that  the  levy  and  sale  were  made  at  the  instance  of  the 
defendant  in  error,  who  was  the  plaintiff  in  the  execution.  In  such  cases  the 
purchaser,  acting  in  good  faith,  as  the  plaintiff  seems  to  have  done,  has  an 
equitable  right  to  withhold  the  consideration.  The  defendant  in  error  is  not 
without  Ivs  remedy  against  his  original  debtor.  Wherefore  it  is  decreed  and 
ordered  that  the  decree  of  the  Circuit  Court  dissolving  the  plaintiff's  injunction 
and  dismissing  his  bill.  IK-  reversed  and  the  cause  remanded,  with  instructions  to 
perpetuate  the  injunction."  Sec,  also.  Brumuiel  v.  Hunt,  8  J.  J.  Marah.  (Ky.) 
709. 

»  See  Citizens'  Bank  v.  Prcitag.  «7  La.  Ann.  71. 


CAVEAT   EMPTOR. 

§  59.  Fraudulent  'representations  as  to  title.  If  a  purchaser  at 
an  execution  sale  be  induced  to  bid  by  the  fraudulent  representa- 
tions of  the  sheriff,  the  execution  creditor,  or  the  execution  debtor 
respecting  the  title,  he  will  have  his  remedy,  but  whether  by  avoid- 
ance of  the  sale,  and  the  detention  or  the  recovery  back  of  the  pur- 
chase money,  or  by  action  against  the  wrongdoer  to  recover  damages 
for  the  deceit,  is  not  harmoniously  determined  by  the  authorities. 
There  are  cases  which  hold  that  if  the  purchaser  has  been  purposely 
deceived  as  to  the  state  of  the  title  by  any  one  interested  in  making 
the  sale,  he  will  be  released  from  his  bid  and  the  sale  vacated  upon 
his  motion.1  Other  cases  hold  that  the  sheriff  is  not  the  agent  of 
the  parties  interested  in  the  land,  and  that  if  he  fraudulently  mis- 
represent the  title  he  is  personally  liable  to  the  purchaser  for  the 
damages  thence  accruing,  but  that  the  sale  itself  must  stand ; 2  also, 

3Rocksell  v.  Allen,  3  McLean  (U.  S.),  357.  Chambers  v.  Cochran,  18  Iowa, 
159.  Wingo  v.  Brown,  14  Rich.  L.  (So.  Car.)  103.  Moore  v.  Allen,  4 Bibb  (Ky.), 
41.  Webster  v.  Haworth,  8  Cal.  21,  26;  68  Am.  Dec.  287,  which  was  a  sale  on 
execution,  the  execution  creditor  falsely  representing  that  his  judgment  was 
the  first  lien  on  the  property.  The  purchaser  was  relieved  from  the  payment  of 
the  purchase  money,  the  court  saying:  "It  is  said  that  the  maxim  caveat  emptor 
applies  to  judicial  sales,  and  that  the  defendant  (purchaser)  cannot  avail  himself 
of  the  misrepresentations  of  the  plaintiff  (execution  creditor),  as  he  had  access  to 
the  records  of  the  county,  and  might  have  informed  himself  upon  the  subject. 
Grant  that  the  maxim  caveat  emptor  applies  to  sheriffs'  sales,  it  has  never  been 
carried  to  the  extent  that  such  a  sale  could  not  be  impeached  on  the  ground  of  fraud 
or  misrepresentation.  The  maxim  only  applies  thus  for.  that  the  purchaser  is 
supposed  to  know  what  he  is  buying,  and  does  so  at  his  own  risk.  But  this  pre- 
sumption may  be  overcome  by  actual  evidence  of  fraud,  or  it  may  be  shown 
that,  in  fact,  the  party  did  not  know  the  condition  of  the  thing  purchased,  and 
was  induced  to  buy  upon  the  faith  of  representations  made  by  those  who,  by 
their  peculiar  relations  to  the  subject,  were  supposed  to  be  thoroughly  acquainted 
with  it.  The  fact  that  the  defendant  (purchaser)  might  have  examined  the  pub- 
lic records  does  not  alter  the  case.  Before  such  an  examination  could  have  been 
had,  the  sale  would  have  been  over,  and  he  would  have  lost  the  opportunity  to 
purchase.  If,  under  these  circumstances,  he  applied  to  the  judgment  creditor 
for  information,  and,  acting  upon  that  information,  was  misled  to  his  prejudice, 
he  should  be  relieved,  and  the  actual  party  in  interest  estopped  from  claiming 
a:i  advantage  resulting  from  his  own  misrepresentation  of  facts,  whether  will- 
fully or  ignorantly  made." 

4  Hensley  v.  Baker,  10  Mo.  157,  159,  obiter.  See  Mellen  v.  Boarman.  13  Sm.  & 
M.  (Miss.)  100.  Stoney  v.  Shultz,  1  Hill  Eq.  (So.  Car.)  464;  27  Am.  Dec.  429. 
Weidler  v.  Bank,  11  Serg.  &  Rawle  (Pa.),  134.  It  is  the  duty  of  the  sheriff  to 
announce  defects  of  title  of  which  he  is  informed,  and  if  he  conceals  them  he  and 

17 


130  MARKETABLE  TITLE  TO  REAL  ESTATE. 

that  if  the  parties  in  interest  are  guilty  of  fraud,  the  remedy  is  bj 
action  of  deceit.1 

In  Pennsylvania  it  has  been  intimated  that  if  the  purchaser  be 
induced  by  the  sheriff  to  suppose  that  he  will  get  a  complete  legal 
title,  and  on  that  presumption  he  bids  the  full  value  of  the  clear  legal 
estate,  he  will  be  entitled  to  relief,  notwithstanding  the  rule  caveat 
emptor? 

§  60.  Riyhte  of  purchaser  from  purchaser  under  execution. 
A  purchaser  at  an  execution  sale  cannot  then,  with  the  exceptions 
already  noted,  refuse  to  pay  the  purchase  money  on  the  ground  that 
the  title  has  turned  out  to  be  worthless,  his  bid  being  presumed  to 
have  teen  made  with  that  contingency  in  view.3  But  one  who  pur- 
chases from  a  purchaser  under  execution  has,  of  course,  a  right  to 
demand  a  conveyance  of  an  indefeasible  estate  in  the  absence  of 
any  agreement,  express  or  implied,  to  the  contrary.  The  circum- 
stance that  a  vendor  holds  under  a  sheriffs  deed,  if  known  to  the 
purchaser,  may,  however,  be  entitled  to  some  weight  in  settling  a 
dispute  between  the  parties  as  to  the  kind  of  title  the  purchaser 
was  to  receive. 

§  61.  Title  under  a  void  judgment.  The  title  of  a  purchaser 
at  a  sale  under  execution  may  be  worthless  because  the  judgment 
on  which  the  execution  issued  was  void  for  want  of  jurisdiction,  or 
for  some  other  reason  was  open  to  collateral  attack.  The  validity 
of  titles  under  execution  comes  in  question  in  the  ordinary  case  of 

the  sureties  on  his  official  bond  will  be  liable  to  the  purchaser.  Comin'th  v. 
Dickinson,  5  B.  Mon.  (Ky.)  506;  43  Am.  Dec.  139;  McGhee  v.  Ellis,  4  Litt.  (Ky.) 
244;  14  Am.  Dec.  124;  Wolfortl  v.  Phelps,  2  J.  J.  Marsh.  (Ky.)31.  In  Dwight's 
Case,  li>  Abb.  Pr.  (N.  Y.)  259  (O.  8.),  a  purchaser  at  an  execution  sale  had  been 
induced  to  bid  by  the  representations  of  the  plaintiff's  attorney  that  the  title  was 
good,  the  fact  being  that  the  defendant  had  conveyed  away  the  premises  before 
tin-  judgment,  under  which  the  sale  was  made,  had  been  docketed.  The  pur- 
chaser was  relieved.  If  the  sheriff  sell  personal  property,  knowing  that  the  title 
is  bad,  and  fails  to  disclose  that  fact  to  the  purchaser,  he  will  be  liable  in  dam- 
ages. Harrison  v.  Shanks,  13  Bush  (Ky.),  690. 

1  Davis  v.  Murray.  2  Const.  Rep.  (So.  Car.)  143;  12  Am.  Dec.  661;  Kilgore  v. 
Peden.  1  Strobh.  L.  18.  21,  citing  Winter  v.  Dent,  M8S.  and  Towles  v.  Turner,  8 
Hill  (So.  Car).  178;  Tucker  v.  Gordon,  4  Drams.  Eq.  (S.  C.)  5!). 

•  Auwerter  v.  Mathiot,  9  Serg.  &  H.  (Pa.)  397,  408;  Cumming's  Appeal,  23  Pa. 
St.  WH*.  r»!2. 

•Ante,  f  57. 


CAVEAT  EMPTOI?.  131 

vendor  and  purchaser  when  the  vendor  derives  title  through  a 
sheriff's  deed,  immediately  or  remotely,  and  in  contests  between  the 
sheriff  and  the  purchaser  at  the  execution  sale.  It  is  plain  that  a 
title  resting  upon  a  void  judgment  cannot  be  forced  upon  one  who, 
by  the  terms  of  his  contract,  express  or  implied,  may  demand  a 
marketable  title.1  It  remains  then  to  consider  whether  a  purchaser 
from  the  sheriff,  having  regard  to  the  maxim  caveat  emptor,  may 
refuse  to  complete  his  contract  or  demand  restitution  of  the  pur- 
chase money  upon  the  ground  that  the  judgment  upon  which  the 
execution  issued  was  absolutely  void.  We  have  already  seen  that 
mere  error  and  irregularities  in  judicial  proceedings  do  not  expose  a 
judgment  or  decree  to  collateral  attack,  and,  therefore,  do  not  affect 
the  title  of  a  purchaser  at  a  judicial  sale.  What  is  there  said 
applies  with  equal  force  to  titles  under  execution  sales.  The  reversal 
of  an  erroneous  judgment  does  not  affect  the  title  of  a  purchaser 
under  the  judgment2  unless  the  judgment  plaintiff  was  himself  the 
purchaser.3  Nor  do  mere  irregularities  in  the  proceedings  subse- 
quent to  judgment,  for  example,  failure  of  the  sheriff  to  make 
return  or  a  correct  return  of  the  execution  vitiate  the  title  of  the 
purchaser,4  though  there  are  matters  occurring  after  judgment  that 
will  render  a  sale  under  execution  absolutely  void,  as  will  be  seen 
hereafter.5 

1  Post,  ch.  30,  §  297. 

8  Ante,  p.  88;  Backhurst  v.  Mayo,  Dyer,  363;  Drury's  Case,  8  Coke,  281 
(early  ed.  143).  Shultz  v.  Sanders,  38  N.  J.  Eq.  154.  Williams  v.  Cummings, 
4  J.  J.  Marsh.  (Ky.)  637;  Reardon  v.  Searcy,  2  Bibb  (Ky.),  202;  Brown  v. 
Combs,  7  B.  Mon.  (Ky.)  318.  McLogan  v.  Brown,  11  111.  519.  Smith  v.  Kel- 
ley,  3  Murp.  (N.  C.)  507.  McGuire  v.  Ely,  Wright  (Ohio),  520. 

8  Freeman  on  Judgments,  §  482;  Freeman  on  Executions.  §  347.  See  ante,  p. 
89,  as  to  judicial  sales.  Bank  of  U.  S.  v.  Bank  of  Washington,  6  Pet.  (U.  S.)  19. 
Bryant  v.  Fairfleld,  51  Me.  148.  Mullin  v.  Atherton,  61  N.  H.  20.  Stroud  v. 
Kasey,  25  Tex.  740;  78  Am.  Dec.  556.  Kingsbury  v.  Stoltz,  23  111.  App.  411. 
Reynolds  v.  Harris,  14  Cal.  667;  76  Am.  Dec.  459.  Turk  v.  Sidles,  38  W.  Va. 
404.  Hoe's  Case,  5  Coke,  90  (Lond.  ed.  1826,  vol.  3,  p.  183);  Goodyere  v.  Ince, 
Cro.  Jac.  246;  Eyre  v.  Woodfine,  Cro.  Eliz.  278. 

4  Forest  v.  Camp,  16  Ala.  642;  Love  v.  Powell,  5  Ala.  58;  Driver  v.  Spence,  1 
Ala.' 540.  Heath  v.  Black,  7  Blackf.  (Ind.)  154;  State  v.  Salyers,  19  Ind.  432. 
Clark  v.  Lockwood,  21  Cal.  220.  Phillips  v.  Coffee,  17  111.  154;  63  Am.  Dec. 
357.  Shaffer  v.  Bolander,  4  Greene  (Io.),  201. 

5  Post,   §  62.     Webber  v.  Cox.  6  T.  B.  Mon.    (Ky.)    110:   17  Am.  Dec.  127. 
Miner  v.  Natchez,  4  Smed.  &  M.  (Miss.)  (502;  43  Am.  Dec.  48S.     Hendrickson  v. 


MAKKETAISI.K   TITLE   TO   REAL  ESTATE. 

A  purchaser  at  a  sale  under  execution,  issued  on  a  void  judgment, 
acquires  no  title.1  The  weight  of  authority  seems  to  be  that  if  the 
proceedings  in  a  suit  antecedent  to  the  sale  under  execution  are  so 
defective  that  a  title  free  from  collateral  attack  by  a  party  to  the 
suit  cannot  IHJ  assured  to  the  purchaser,  he  will  be  relieved  from  his 
bid,  if  the  purchase  money  remains  unpaid.  The  proceedings  prior 
to  the  sale  must  be  adequate  to  divest  the  title  of  the  judgment 
debtor.  "  Every  purchaser,"  says  a  recent  writer  upon  this  subject, 
'•has  a  right  to  suppose  that  by  his  purchase  he  will  obtain  the  title 
of  the  defendant  in  execution.  The  promise  to  convey  this  title  is 
the  consideration  upon  which  his  bid  is  made.  If  the  judgment  is 
void,  or  if,  from  any  cause,  the  conveyance  when  made  cannot  invest 
him  with  the  title  held  by  the  parties  to  the  suit  or  proceeding, 
then  his  bid  or  other  promise  to  pay  is  without  consideration,  and 
cannot  be  enforced  against  him.  He  may  successfully  resist  any 
action  for  the  purchase  money,  whether  based  upon  the  bid  or  upon 
some  lx»nd  or  note  given  by  him."2  These  principles  address  them- 
selves to  our  sense  of  equity  and  right,  and  many  cases  may  be 
found  which  sustain  them.3  But  it  is  not  to  be  denied  that  they 
strongly  encroach  upon,  and  are,  perhaps,  inconsistent  with  the 
doctrine  caveat  ei/iptor  as  applied  to  execution  sales.  Want  of  juris- 
diction rendering  the  judgment  void  must  appear  upon  the  face  of 
the  proceedings  resulting  in  the  judgment,  and  the  purchaser,  by 
examining  the  proceedings,  would  l>e  advised  of  the  defect.  If  he 


Railroad  Co..  34  Mo.  188;  84  Am.  Dec.  76.  Smith  v.  Kelley,  3  Murph.  (N.  C.) 
507.  Jackson  v.  Roscvelt,  18  Johns.  (X.  Y.)  97.  Riddle  v.  Bush,  27  Tex.  675. 

1  RolH-rts  v.  Stowere,  7  Bush  (Ky.).  295.     Colling  v.  Miller,  64  Tex.  118. 

'  Freeman  Void  Jud.  Sales,  %  48.  Bynum  v.  Govan,  (Tex.)  29  S.  W.  Hep.  1119; 
Halscy  v.  Jones.  (Tex.)  25  8.  W.  Rep.  «96.  The  same  principles  have  hcen 
applied  in  respect  to  probate  and  judicial  stiles  proper.  Sec  those  titles,  ante, 
tliis  chapter. 

'Boykin  v.  Cook,  61  Ala.  472,  the  court  guying:  "  If  the  sale  be  void  then  no 
one  is  bound  by  the  purchase;  and  unless  the  plaintiff  actually  realizes  the  pro- 
ceeds the  debt  remains  unsatisfied."  Thrift  v.  Fritz,  77  III.  55.  This,  however, 
wasa  judicial  side.  Burns  v.  Ledbctter.  56  Tex.  2W8.  The  cases  of  Dodd  v.  Nelson, 
90  N.  Y.  248.  and  Vcrdin  v.  Slncuni.  71  X.  Y.  345.  arc  cited  to  the  text  proposi- 
tion in  Freeman  on  Void  Jud.  Sales.  £  48.  but  it  will  be  found  on  examination 
that  UH-SC  were  judicial  or  quasi  judicial  sales,  in  which  the  purchaser  was  merely 
rcwUtiiig  a  confirmation  nf  the  side,  on  the  ground  that  the  title  was  defective  — 
a  ripht  which  is  conceded  to  him,  we  believe,  everywhere. 


CAVEAT   EMPTOK.  133 

chooses  to  bid  without  examining  the  record  he  must,  if  the  rule 
caveat  emptor  is  to  be  strictly  applied,  accept  the  risk  of  eviction 
and  complete  his  purchase.  It  is  as  easy  for  him  to  inform  himself 
as  to  want  of  jurisdiction  in  the  court  to  render  the  judgment  under 
which  the  sheriff  sells,  as  it  is  to  discover  a  want  of  title  in  the  exe- 
cution defendant,  and  no  reason  is  perceived  why  he  should  be  held  to 
his  bargain  in  the  one  case  and  relieved  in  the  other.  It  would  seem 
more  consistent  to  relieve  him  in  both  cases,  or  to  hold  him  bound 
in  both.  In  Pennsylvania  a  purchaser  at  a  sheriff's  sale  may  move 
to  have  to  have  the  sale  set  aside  at  any  time  before  the  deed  is  exe- 
cuted and  delivered.  This  was  done  in  a  case  in  which  the  purchaser 
at  a  sale  under  execution  on  a  void  judgment,  bid  to  protect  'his 
interests  as  a  mortgagee  of  the  premises.  The  sale  was  set  aside  and 
the  purchaser  relieved  from  his  bid.1 

§  62.  Title  under  a  void  execution  sale.  The  judgment  on 
which  an  execution  is  issued  may  be  unimpeachable,  and  the  title  of 
the  defendant  may  be  indefeasible,  yet,  for  some  matter  occurring 
after  the  rendition  of  judgment,  the  title  of  a  purchaser  under  the 
execution  may  be  worthless.  The  reports  abound  with  cases  in 
which  the  judgment  debtor,  or  those  claiming  under  him,  have 
recovered  the  premises  from  the  execution  purchaser  or  his  assigns, 
upon  the  ground  that  the  sale  itself,  without  regard  to  the  validity 
of  the  antecedent  judgment,  was  void.  This  has  occurred,  to  men- 
tion some  of  the  most  notable  instances,  where  a  sale  has  been  made 
under  an  execution  levied  after  return  day ; 2  under  an  execution 
against  "  William  V.,"  on  a  judgment  against  "  II.  W.  Y. ; " 3  under 
execution  issued  after  the  death  of  the  execution  defendant,  the 
judgment  not  having  been  revived ; 3  where  an  appraisement  had  not 
been  made  or  waived,  and  the  land  sold  for  less  than  its  appraisable 

1  Connelly  v.  Philadelphia,  86  Pa.  St.  110;  Shakespeare  v.  Delaney,  86  Pa.    St. 
108. 

2  Freeman  on  Executions,  g§  58,  106,  and  cases  cited.     Hawes  v.  Rucker,  (Ala.) 
11  So.  Rep.  85;  Morgan  v.  Ramsey,  15  Ala.  190;  Smith  v.  Munday,  18  Ala.  182; 
53  Am.  Dec.  221.     Jefferson  v.  Curry,  71  Mo.  85.     Cain  v.  Woodward,  (Tex.)  13 
S.  W.  Rep.  319;  Terry  v.  Cutler,  4  Tex.  Civ.  App.  570;  23  S.  W.  Rep.  539. 
Contra,  Jackson  v.  Rosevelt,  13  Johns.  (N.  Y.)  97. 

'Morris  v.  Balkham,  75  Tex.  Ill;  12  S.  W.  Rep.  970. 
4  Cunningham  v.  Buck,  45  Ark.  267. 


134  MARKETABLE  TITLE  TO  REAL  ESTATE. 

value  ;  *  where  the  sheriff  sold  the  fee  simple  instead  of  tirst  offering 
the  rents  and  profits  for  seven  years,  as  required  by  statute  ;*  where 
the  sheriff  sold  premises  i:i  the  hands  of  a  receiver  without  leave  of 
the  court  ;  s  where  the  sheriff  sold  upon  a  day  other  than  one  pre- 
scribed by  law  ;  *  where  the  sale  was  made  by  the  sheriff  of  A. 
county  under  an  execution  directed  to  the  sheriff  of  B.  county  ;  * 
where  the  sale  was  made  under  an  execution  issued  on  a  judgment 
that  had  been  paid,  though  not  satisfied  of  record,6  and  under  an 
execution  issued  on  a  justice's  judgment  which  was  not  docketed 
until  it  had  become  barred  by  limitation.7  Numerous  other  instances 
of  void  sales  under  execution  will  be  found  in  the  reports  of  the 
several  States. 

The  rule  that  a  sale  under  a  void  judgment  does  not  bind  the 
purchaser,  applies  with  equal  force,  it  is  conceived,  where  the  sale 
itself  is  void  because  of  some  matter  occurring  subsequent  to  the 
judgment,  or  because  the  officer  had  no  authority  to  sell.  Upon 
thi*  point  it  has  been  said  by  an  able  judge:  "The  general  rule 
very  clearly  is  that  there  is  no  implied  warranty  in  sales  made  by  a 
sheriff  or  other  ministerial  officer  in  his  official  capacity,  but  that 
applies  exclusively  to  the  quality  and  property  of  the  thing  sold. 

1  Capital  Bank  v.  Huntoon,  35  Kans.  577;  1  Pac.  Rep.  869,  and  cases  there 
cited.  See  Freeman  Void  Jud.  Sales,  §  27.  Contra,  Shaffer  v.  Bolander,  4 
Greene  (Io.),  201. 

•Oantly  v.  Ewing,  3  How.  (U.  S.)  707,  disapproving  Doe  v.  Smith,  4  Blackf. 


'French  \.  Pratt.  7  N.  Y.  Supp.  240;  otherwise,  if  the  judgment  on  which 
the  execution  issued  was  rendered  before  the  appointment  of  the  receiver.  In 
re  Loos,  50  Hun  iN.  Y.),  67;  3  N.  Y.  Supp.  883;  Bank  v.  Risley,  19  N.  Y.  869. 

•Lowdermilk  v.  Corpenning,  101  N.  Car.  649;  8  8.  E.  Rep.  117,  and  cases  there 
cited.  But  see  contra.  Brown  v.  Christie,  27  Tex.  75;  84  Am.  Dec.  607. 

»T.-rry  v.  Cutler,  4  Tex.  Civ.  App.  70;  28  S.  W.  Rep.  589. 

•Shaffer  v.  McCracken,  (Iowa)  58  N.  W.  Rep.  510.  Norgren  v.  Edson,  51  Minn. 
567;  68  N.  W.  Rep.  876.  Hardin  v.  rhirk.  1  T<  v  Civ.  App.  565;  21  S.  W.  H.-p. 
977.  If  a  judgment  has  been  satisfied,  thmiirh  not  i-aneelrd  of  reeonl,  a  Imnafde 
purchaser  under  :in  execution  issued  on  the  judgment  will  pet  no  title.  Wood  v. 
in,  2  Hill  (N.  Y.),  566;  88  Am.  Dec.  598;  Carpenter  v.  Stilwell,  11  N.  Y.  61; 
Craft  v.  Merrill.  14  N.  Y.  466.  He  succeeds  merely  to  the  position  of  the  judgment 
creditor,  subject  t.i  ;ill  equities  in  favor  of  the  judgment  debtor,  without  regard 
to  the  question  of  notice.  Frost  v.  Yonkere  Sav.  Bank,  70  N.  Y.  558;  26  Am. 
Rep.  «27.  8ee  mntra,  Nichols  v.  Dissler,  81  N.  J.  L.  461;  86  Am.  Dec.  219. 

»Cowcn  v.  Withrow,  (N.  Car.)  19  S.  E.  ! 


CAVEAT   EMPTOR. 


135 


Thus,  in  a  sale  made  by  a  sheriff  of  goods  taken  in  execution,  there 
is  no  implied  warranty  on  the  part  of  the  sheriff  that  the  goods  are 
intrinsically  worth  anything,  or  that  the  defendant  has  any  property 
in  them.  He  only  undertakes  to  sell  the  interest  which  the  defendant 
may  happen  to  have  in  the  goods,  in  the  condition  in  which  they  are. 
But  the  principle  does  not  apply  where  the  sheriff  or  other  officer 
assumes  an  authority  where  none  is  given  by  law.  It  will  hardly 
be  questioned  that  if  a  sheriff  induce  persons  to  purchase  at  his  sale 
by  pretending  that  he  has  the  authority  of  law  for  the  sale,  when  in 
truth  he  has  not,  the  purchaser  must  be  without  remedy.  It  is  a 
fraud  for  which  he  would  be  responsible,  and  the  principle  applies 
equally  where  he  acts  upon  a  void  authority.  In  any  case  the 
sheriff  is  bound  to  show  that  ho  is  legally  authorized  to  do  that 
which  he  assumes  to  do  mrtute  officii."  l  It  is  to  be  here  observed 
that  if  an  execution  defendant,  or  one  who  succeeds  to  his  rights, 
having  grounds  upon  which  the  sale  under  execution  may  be  col- 
laterally attacked,  be  guilty  of  laches  in  the  assertion  of  that  right, 
so  that  by  reason  of  his  negligence  the  purchaser  or  his  assignees  so 
alter  their  situation  with  respect  to  the  property  that  to  vacate 
the  sale  would  inflict  great  injury  upon  them,  the  sale  will  be  per- 
mitted to  stand.2  So,  also,  if  the  defendant  accept  the  surplus  of 
the  proceeds  of  the  sale,  after  the  execution  has  been  satisfied,  such 
acceptance  being  deemed  a  ratification  of  the  sale,  or  at  least  a 
waiver  of  the  right  to  attack  the  sale.8  A  purchaser  at  a  sale  under 
execution  cannot  be  affected  by  secret  frauds  and  irregularities  of 
which  he  had  no  notice.4  And,  generally,  it  may  be  said  that  a  pur- 
chaser from  one  who  holds  under  a  sheriff's  deed  cannot  be  affected 
by  any  defect  or  invalidity  in  the  sale  itself  or  in  the  proceedings 
anterior  thereto  of  which  he  had  no  notice.  These  propositions 
being  sound,  it  is  plain  that  the  purchaser  under  execution  could  not 
seek  relief  from  his  bid  in  a  case  in  which  he  might  successfully 
resist  a  collateral  attack  upon  the  title  as  a  purchaser  without  notice 
of  the  matters  and  things  upon  which  the  attack  is  based. 

1  Stoney  v.  Shultz,  1  Hill  Eq.  (S.  C.)  464;  37  Am.  Dec.  429. 

5  Regney  v.  Small,  60  111.  416.  Capital  Bank  v.  Huntoon,  35  Kans.  577;  11 
Pac.  Rep.  772. 

•  Freeman  Void  Jud.  Sales,  §  50.  Huffman  v.  Gaines,  47  Ark.  226;  1  S.  W. 
Rep.  100. 

4  Freeman  Void  Jud.  Sales,  §  41. 


"136  MARKETABLE  TITLE  TO  REAL  ESTATE. 

§  63.  TAX  SALES.  The  maxim  caveat  eniptor  applies  with  great 
strictness  to  tax  sale*.1  Tax  titles  are  esteemed  the  most  uncertain 
of  all,  and  are  universally  regarded  with  suspicion  and  distrust  ; 
hence  it  is  but  seldom  that  property  sold  for  nixes  brings  more  than 
the  amount  of  the  taxes  due.  The  purchaser  buys  at  a  mere  nominal 
price,  and  if  he  gets  nothing  by  his  purchase,  he  has,  in  the  absence 
of  statutory  provisions,  no  recourse  upon  any  one.  In  some  of  the 
Stales,  however,  he  is  by  statute  in  a  manner  ntmgated  to  the  bene- 
fit of  the  tax  lien  discharged  with  the  money  arising  from  the  sale ; 
the  person  seeking  to  have  the  sale  vacated  being  required  as  a  con- 
dition of  relief  to  reimburse  the  purchaser  to  the  extent  of  the 
taxes  legally  chargeable  on  the  land,  with  costs  of  sale  and  interot. 
In  other  States,  in  case  of  a  sale  void  for  errors  and  omissions  in 
the  proceedings  the  purchaser  is  allowed  to  have  rec«>ur>e  upon  the 
city  or  county  by  whose  authority  the  sale  and  conveyance  was 
made.9 

The  rule  caveat  emptor  has  been  held  to  extend  not  only  to  pur- 
chasers at  tax  sales,  but  to  transferees  of  the  title  so  acquired. 
Thus,  it  has  been  held  that  the  assignor  of  a  tax  lease  given  upon  a 
sale  for  unpaid  taxes,  warrants  nothing  more  than  the  genuineness 
of  the  lease  and  his  ownership.  It  is  presumed  that  the  assignee 
took  the  title  at  his  own  risk.8 

§  64.  SALES  BY  TRUSTEES,  ASSIGNEES,  ETC.  The  rule  ,*«i'.,it 
emptor  has  been  held  to  apply  to  sales  under  trusts  for  the  payment 
of  debts.  The  trustee,  it  has  been  said,  sells  merely  such  title  as  is 
vested  in  him  by  the  deed  creating  the  trust,  and  there  is  no  implied 
warranty  on  his  part  that  the  title  is  good,  so  that  if  the  title  be  in 
fact  defective,  the  purchaser  can  neither  detain  the  unpaid  purchase 
money  nor  recover  hack  that  which  has  been  paid.4  Such  a  sale 

1  Blackwell  on  Tax  Titles,  §  994;  Black,  on  Tax  Titles  (2d  ed.),  §  468.  Tl><- 
onn  and  authorities  will  he  found  collected  in  these  works.  The  limits  ..I  thi«. 
trM&fee  will  not  admit  of  their  consideration  here  at  length. 

1  Black,  on  Tax  Titles  aM  cd.i.  i;:  4<14.  477.  et  se<|.  ;  LopuiHport  v.  Case.  124  In<i 
254;  24  N.  E.  Rep.  H*;  Watkins  v.  Winin-s.  H»2  Iml.  :W.  1  N.  K.  H.-p.  038; 
Parker  v.  Gmidnril.  si  Ind.  e<»4.  KUVM  II  v.  Hudson,  28  Kans.  99.  Merriam  v 
Ranen,  23  Neb.  217.  Hart  v.  Smith.  11  Wis  m 

»  Boyd  v.  Schliaenger,  ••  •>!,  distinguished  in  H.-nsel  v   Gray,  80  N    V 

m 

'Rawle  CovU.  (5th  cd.)  £  388  n.;  26  Am.  &  Km:.  Km-\  C  of  L.  934,  940;  Button 
T.  Button,  5  Grat.  (Va,)  234;  M  Am.  Dec.  10i»;  I',  t.-rman  v  Laws,  6  Leigh  (Va.), 


CAVEAT   EMPTOB..  137 

stands  upon  the  same  footing  as  would  a  sale  by  the  trust  grantor 
himself,  with  express  disclaimer  of  good  title.  Bnt  where  the 
trustee,  selling  at  public  auction,  announces  that  the  land  is  sold  free 
and  clear  of  all  incumbrances,  and  it  afterwards  appears  that  incum- 
brances  exist,  it  has  been  held  that  the  purchaser  will  be  relieved.1 
It  seems,  however,  that  if  the  conveyance  to  the  trustee  contains 
covenants  for  title,  the  benefit  of  them  will  pass  to  the  purchaser  at 
the  trustee's  sale,  and  he  may  maintain  an  action  thereon  against  the 
grantor.2  And  if  the  sale  be  for  any  reason  void,  other  than  for 
fraud  on  the  part  of  the  purchaser,  he  will  be  subrogated  to  the 
rights  of  the  creditor  secured  by  the  trust.3  If  by  mistake  the  pur- 
chaser gets  materially  less  land  than  the  trustee  purported  to  sell,  it 
has  been  held  that  he  cannot  recover  back  such  part  of  the  purchase 
money  as  may  have  been  paid,  from  the  trustee  or  the  beneficiary 
of  the  trust,  but  that  he  may  apply  to  the  court  for  a  rescission  of 

529.  Fleming  v.  Holt,  12  W.  Va.  143.  In  this  case,  the  court,  after  observing 
that  the  purchaser  at  a  judicial  sale,  that  is,  a  sale  by  a  commissioner  of  the 
court,  might  object  to  the  title  at  any  time  before  confirmation  of  the  sale,  con- 
tinued: "  A  sale  by  a  trustee,  like  a  sale  by  a  commissioner,  is  without  warranty, 
but  there  is  this  obvious  difference  between  the  two:  The  contract  of  the  pur- 
chaser at  a  sale  by  the  commissioner  is  incomplete  till  his  bid  is  accepted  by  the 
court,  who  is  the  real  seller  of  the  property,  the  commissioner  of  sale  being  the 
mere  agent  of  the  court.  The  bid  is  accepted  by  the  court  by  the  confirmation 
of  the  sale;  after  that,  though  the  purchaser,  before  the  deed  is  made  to  him, 
finds  out  that  the  title  to  the  land  is  defective,  he  is,  nevertheless,  bound  to 
receive  it  and  pay  the  purchase  money.  In  a  sale  by  a  trustee,  the  court  does 
not  accept  the  bid  of  the  purchaser,  but  it  is  accepted  by  the  auctioneer  when 
he  knocks  the  land  down,  and  on  the  making  by  him  of  a  memorandum  of  the 
sale  and  its  terms  signed  by  the  auctioneer,  the  contract  for  the  sale  is  as  com- 
plete as  the  contract  for  the  sale  made  by  a  commissioner  is  when  the  court 
accepts  the  bid  by  confirming  the  sale.  After  such  knocking  down  of  the  land 
by  the  auctioneer  and  the  making  of  the  memorandum,  the  purchaser  must 
accept  the  deed  and  pay  the  purchase  money,  though  he  does  find  the  title 
defective.  He  must,  if  he  wishes  to  do  so,  investigate  the  title  in  this  case,  as 
in  the  other,  while  the  contract  is  incomplete;  that  is,  in  the  last  case,  before  the 
land  is  knocked  down  to  him."  In  other  words,  he  must  examine  the  title  before 
he,  bids,  and  if  he  bids  without  examining  the  title,  he  takes  the  risk  of  the 
failure  of  title. 

1  Schaeffer  v.  Bond,  70  Mo.  480. 

s  This,  upon  the  principle  that  any  kind  of  a  conveyance  will  pass  the  benefit 
of  covenants  for  title.     Post,  "  Covenant  of  Warranty,"  §  157. 

3  Clarke  v.  Wilson,  56  Miss.  753;  Bonner  v.  Lessly,  61  Miss.  392. 
18 


138  MAKKETABI.E  TITLE  TO   REAL  ESTATE. 

the  contract,  and  to  have  the  sale  set  aside,  thereby  relieving  him 
from  the  payment  of  deferred  installments  of  the  purchase  money.1 

The  rule  caveat  emptor  applies  also  to  sales  under  assignments  to 
secure  the  payment  of  debts,  and  to  sales  by  assignees  in  bank- 
ruptcy.3 It  has  been  held,  however,  that  if  assignees  in  bankruptcy 
advertise  in  the  usual  way,  that  is,  without  stating  that  they  will  sell 
only  such  estate  as  the  bankrupt  has,  they  cannot  compel  specific 
performance  if  the  title  be  bad.8  In  New  York  it  has  been  held 
that  there  is  an  implied  contract  at  a  sale  by  an  assignee  in  bank- 
ruptcy that  the  contract  is  good,  but  if  the  purchaser  accept  a  con- 
veyance without  covenants,  he  will  be  without  relief.4 

Sales  by  guardians  are  made  only  in  pursuance  of  judicial  author- 
ity, and  are  subject  to  confirmation  by  the  court.  The  purchaser 
will  be  entitled  to  a  reference  if  the  title  is  doubtful,  and,  of  course, 
may  resist  confirmation  of  the  sale  if  the  title  be  defective.5  After 
the  sale  is  confirmed  it  is  apprehended  upon  general  principles  that 
the  rule  caveat  emptor  applies,  at  least  so  far  as  to  prevent  restitution 
of  the  purchase  money  upon  the  ground  of  a  paramount  title  out- 
standing in  a  stranger.  The  purchaser  may  object  that  a  guardian's 
sale,  under  which  the  vendor  claims  title,  was  made  without  notice 
to  the  wards  of  the  proceeding  in  which  the  authority  to  sell  was 
obtained.8  But  the  validity  of  a  sale  by  a  foreign  guardian,  who 
has  complied  with  the  requirements  of  the  statute  in  making  the 
sale,  cannot  be  collaterally  attacked  by  the  purchaser  in  an  action  for 
the  purchase  money.7 

§  65.  SUBROGATION  OF  PURCHASER  AT  JUDICIAL  AND  MIN- 
ISTERIAL SALES.— Subrogation  where  sale  is  void.  We  have  seen 
that  a  purchaser  who,  by  the  terms  of  his  contract,  express  or 

1  Coons  T.  North,  27  Mo.  78. 

*  Ante,  this  section.     As  to  sales  by  assignees  in  bankruptcy,  post,  this  section 
and  cases  cited. 

•McDonald  v.  Hanson.  12  Ves.  277;  White  v.  Folzambe,  11  Ves.  844;  Devcr.  11 
T.  Bolton,  18  Ves.  511.  overruling  Pope  v.  Simpson,  5  Ves.  145. 

M'llirk  v.  Post,  in  N.  V.  17;  20  N.  E.  1{,-|. 

»  In  re  Browning,  2  Paige  Ch.  (N.  Y.)  04.  In  this  case  the  title  was  referred 
though  the  sale  h;ul  l><-rn  mnflrmcd.  Sec.  also.  Brown  v.  Christie,  27  Tex.  78; 
*l  Am.  Dec.  607. 

•  Shipp  v.  \Vl.rleas.  88  Miss.  647.     Wil.-y  v.  White,  8  Stew.  &  P.  (Ala.)  855. 
'Pfc-rrman  v.  Wntth-s.  Hfl  Midi   -,'.%4:  4i»  N    \V.  |{,-p.  40. 


CAVEAT  EMPTOE. 


139 


implied,  is  entitled  to  a  conveyance  of  the  premises  free  from 
incnmbrances,  may,  for  the  protection  of  his  estate,  pay  off  any  lien 
or  charge  upon  the  property,  and  be  subrogated  to  the  benefit  thereof 
against  the  vendor ;  he  may  either  deduct  the  amount  so  paid  from 
the  purchase  money  remaining  due,  or,  if  the  purchase  money  has 
been  paid,  he  may  enforce  the  lien  or  charge  against  other  estate  of 
the  vendor.1  This  right  is  given  by  law,  and  is  in  nowise  rested  upon 
any  implied  contract  between  the  parties.2  But  the  equitable  doc- 
trine of  subrogation  as  enforced  in  behalf  of  a  purchaser  at  a  judi- 
cial or  ministerial  sale,  is  much  more  restricted  in  its  application. 
He  cannot  discharge  incumbrances  on  the  property,  and  assert  them 
against  the  creditor  at  whose  instance  the  sale  was  made,  by  deduct- 
ing the  amount  so  expended  from  the  unpaid  purchase  money,  nor, 
as  a  general  rule,  enforce  them  against  the  estate  of  the  debtor 
whose  liability  was  solved  by  the  proceeds  of  the  sale.  If  he  is  sub- 
rogated at  all,  it  is  to  the  rights  of  the  creditor  at  whose  instance 
the  sale  was  made,  and  not  to  the  rights  of  a  stranger,  whose  claim 
he  satisfies  in  order  to  protect  his  title.  We  shall,  however,  consider 
the  subject  in  the  two  following  aspects  :  (1)  Where  the  sale  was 
void,  and  the  proceeds  have  been  applied  to  the  discharge  of  some 
lien  upon  the  premises,  or  of  some  liability  of  the  debtor.  (2) 
Where  the  sale  was  valid,  and  the  purchaser  has  been  evicted  from 
the  premises  by  an  adverse  claimant,  or  compelled  to  remove  prior 
incumbrances  in  order  to  protect  his  title. 

Subrogation  of  a  purchaser  at  a  void  judicial  or  ministerial  sale 
may  be  accomplished  either  by  allowing  the  purchaser  to  enforce 
against  the  claimants  of  the  estate,  the  specific  lien,  charge,  debt  or 
liability  for  the  collection  of  which  the  invalid  sale  was  made,  or  by 
compelling  such  claimants  to  refund  to  the. purchaser,  as  a  condition 
precedent  to  the  recovery  of  the  estate,  the  purchase  money  paid  by 
him  at  the  sale,  and  applied  to  the  satisfaction  of  such  debt  or  lien. 
In  this  way  substantial  justice  is  done  between  all  parties,  and  the 
effect  is  especially  beneficial  to  the  debtor  and  the  creditor,  for  such  a 
practice  lessens  the  danger  of  loss  to  the  purchaser,  and  encourages 
bidding  at  judicial  and  ministerial  sales.  Besides,  "  nothing  can  be 
more  unjust  than  to  permit  a  debtor  to  recover  back  his  property, 

1  Post,  §  204. 

s  Sheld.  Sub.  §  1. 


140  MARKETABLE  TITLE  TO   17EAL  ESTATE. 

because  the  sale  was  irregular,  and  yet  allow  him  to  profit  by  that 
irregular  sale  to  discharge  his  debts.1"  ' 

There  are  cases  which  decide  that  a  purchaser  at  a  void  judicial 
or  ministerial  sale  cannot  be  subrogated  to  the  benefit  of  the  debt 
or  lien  discharged  by  the  proceeds  of  the  sale,  some  upon  the  ground 
that  the  rule  caveat  emptor  denies  the  purchaser  relief;2  some  upon 
the  ground  that  payment  of  the  debt  with  the  proceeds  of  the  sale 
is  an  absolute  satisfaction  thereof,  and  leaves  nothing  to  which  the 
purchaser  can  claim  to  be  subrogated,8  and  some  upon  the  ground 
that  the  purchaser  is  a  mere  volunteer  and  entitled  to  no  considera- 
tion.4 It  is  not  to  be  denied  that  the  doctrine  is  incompatible  with 
a  strict  application  of  the  rule  caveat  emptor,  for  in  most  cases  the 
purchaser  would  be  advised,  upon  diligent  inquiry,  that  the  steps 
necessary  to  a  valid  sale  had  not  been  taken.  The  case  is  merely 
one  in  which  the  rule  caveat*  emptor  is  subordinated  to  the  higher 

1  Dufour  v.  Camfranc,  11  Mart.  (La.)  615;  IS  Am.  Dec.  360. 

*  Frost  v.  Atwood,  78  Mich.  67,  the  court  saying:  "Every  one  is  bound  to 
satisfy  himself  of  the  authority  under  which  a  judicial  sale  is  made  and  buys  at 
his  peril.     It  would  be  a  contradiction  in  terms  to  hold  a  sale  void  for  want  of 
authority  to  make  it  and  yet  valid  enough  to  create  a  lien  for  the   purchase 
money.     Where  individuals  sell  their  own  lands  and  receive  pay  for  them,  there 
•  :ni  !><•  no  want  of  authority,  and  the  question  is  only  one  of  title.     But  a  sale 
made  by  quit -claim  deed  without  covenants  and  without  fraud  or  misrepresenta- 
tion docs  not  entitle  the  purchaser  to  reclaim  his  money.     This  bill  is  an  attempt 
not  only  to  give  to  a  void  probate  sale  the  effect  of  a  warranty,  but  to  go  further 
and  bind  the  land  itself,  which  was  sold  without  right,   for  its  repayment." 
Biiihop  v.  O'Conntr,  69  111.  481,  distinguishing  Kinney  v.   Knoebel,  51  111.  112; 
Baasett  v.  Lockwood,  60  111.  164.     Salmond  v.  Price,  13  Ohio,  383;  43  Am.  Dec. 
204. 

1  Richmond  v.  Marston,  15  Ind.  184.  Disapproved  in  Muir  v.  Berkshire,  52 
Ind.  140. 

4  Richmond  v.  Varston,  15  Ind.  184.  Disapproved  in  Muir  v.  Berkshire,  52 
Ind.  140. 

•  Vnllc  v.  Fleming,  20  Mo.  163;  77  Am.  Dec.  557,  the  court  saying  that  the  law 
bates  "  the  equitable  rights  of  the  purchaser,  not  upon  his  knowledge  or  igno- 
rance of  the  condition  of  the  title,  but  upon  the  ground  that  the  purchaser  has 
discharged  a  judgment  against  the  estate  or  debtor  for  which  the  one  or  the  other 
Mtood  chargeable  by  a  purchase  of  property  made  under  process  of  the  law,  and, 
therefore.  IUIH  the  equitable  right  to  be  reimbursed  out  of  the  estate  or  property 
of  tin-  debtor."     In  Wilson  v.  Holt,  88  Ala.  528:  8  So.  Rep.  821,  it  was  doubted 
whether  the  rule  cnrtat  tmptnr  would  extend  to  defect*  which  would  not  be  dis- 
closed by  an  examination  of  the  claim  of  title  or  to  see-ret  "quitics  which  could 
not  have  been  discovered  by  the  exercise  of  ordinary  diligence. 


CAVEAT   EMPTOIt.  141 

equities  of  the  purchaser.  The  objection  that  the  lien  or  debt  is  dis- 
charged, and  that  there  is  nothing  to  which  the  purchaser  can  be 
subrogated,  appears  merely  sophistical,  and  would,  if  sound,  destroy 
the  doctrine  of  subrogation  in  any  case,  and  the  argument  that  the 
purchaser  is  a  volunteer  would  seem  to  deserve  as  little  considera- 
tion, for  the  sale  is  treated  as  an  equitable  assignment,  or  rather  an 
assignment  by  operation  of  law,  of  all  the  rights,  powers  and  privi- 
leges of  the  creditor  in  the  premises.1  The  purchaser  obviously 
does  not  stand  upon  the  same  ground  as  one  who  officiously 
pays  the  debt  of  another.  Accordingly  the  weight  of  authority 
in  America  has  established  the  rule  that  an  innocent  purchaser  at  a 
sheriff's2  or  administrator's3  sale,  or  other  ministerial  or  judicial 

1  Brobst  v.  Brock,  10  Wall.  (U.  S.)  519.  Robinson  v.  Ryan,  25  N.  Y.  320; 
Jackson  v.  Bowen,  7  Cow.  (N.  Y.)  13;  Stackpole  v.  Robbins,  47  Barb.  (X.  Y.) 
212.  Seller  v.  Lingerman,  24  Ind.  264;  JVIuir  v.  Berkshire,  52  Ind.  149;  Carver 
v.  Howard,  92  Ind.  172.  Gilbert  v.  Cooley,  Walker's  Ch.  (Mich.)  494.  Johnson 
v.  Robertson,  34  Md.  165,  a  case  in  which  a  foreclosure  sale  was  declared  void 
for  want  of  jurisdiction  of  the  persons  of  the  defendants.  The  court,  by 
ALVEY,  J.,  said:  "  The  purchaser  should  be  protected  so  far  that  if  he  has  paid 
the  purchase  money,  and  it  has  been  applied  to  the  payment  of  the  mortgage 
debt,  or  so  far  as  he  has  paid  and  applied  the  purchase  money,  he  should  be  sub- 
rogated to  the  mortgagee,  and  the  mortgage,  to  the  extent  of  such  payment, 
treated  as  assigned  to  him. 

5  Sheldon  on  Subrogation,  §  38;  24  Am.  &  Eng.  Encyc.  of  L.  261;  24  id.  571; 
Freeman  Void  Jud.  Sales,  §  52.  Beeson  v.  Beeson,  9  Pa.  St.  279;  Jackson  v. 
McGinniss,  14  Pa.  St.  331.  Webb  v.  Coons,  11  La.  Ann.  252.  Howard  v.  North, 
5  Tex.  290;  51  Am.  Dec.  769;  Andrews  v.  Richardson,  21  Tex.  287;  Morten  v. 
Welborn,  21  Tex.  772;  Stone  v.  Darnell,  25  Tex.  Supp.  430;  78  Am.  Dec.  582; 
Johnson  v.  Caldwell,  38  Tex.  217;  McDonough  v.  Cross,  40  Tex.  285;  Burns  v. 
Ledbetter,  56  Tex.  282;  Jones  v.  Smith,  55  Tex.  383.  O'Kelly  v.  Gholston,  (Ga.) 
15  S.  E.  Rep.  123.  Rev.  St.  Ind.  1881,  §  1084;  Reilly  v.  Burton,  71  Ind.  118; 
Ray  v.  Detchon,  79  Ind.  56;  Short  v.  Sears,  93  Ind.  505;  Gillette  v.  Hill,  102  Ind. 
531;  1  N.  E.  Rep.  551;  Paxton  v.  Sterne,  127  Ind.  289;  26  N.  E.  Rep.  557. 
Bentley  v.  Long,  1  Strobh.  Eq.  (So.  Car.)  43;  47  Am.  Dec.  523.  Sands  v.  Lyn- 
ham,  27  Grat.  (Va.)  291;  21  Am.  Rep.  348,  which,  however,  was  a  sale  under 
decree  in  chancery  to  enforce  a  judgment  lien.  Brown  v.  Brown,  73  Iowa,  430. 
Goring  v.  Shreve,  7  Dana  (Ky.),  64.  McHany  v.  Schenck,  88  111.  357.  Spindler 
v.  Atkinson,  3  Md.  423;  56  Am.  Dec.  755;  Campbell  v.  Lowe,  9  Md.  500;  66  Am. 
Dec.  339. 

3  Sheld.  on  Subrogation,  §  209;  Woerner's  Am.  Law  of  Adm.  %  485.  Davis 
v.  Gaines,  104  U.  S.  386.  Blodgett  v.  Hitt,  29  Wis.  169;  Winslow  v.  Crowell,  32 
Wis.  639.  Halsey  v.  Jones,  86  Tex.  488;  25  S.  W.  Rep.  696.  Neel  v.  Carson, 
47  Ark.  421;  2  S.  W.  Rep.  107.  Rev.  St.  Ind.  1881,  §  1084;  Walton  v.  Cox,  67 
Ind.  164;  Duncan  v.  Gainey,  108  Ind.  579;  9  N.  E.  Rep.  470;  Stutts  v.  Browne, 


142  MARKETABLE  TITLE  TO  REAL  ESTATE. 

sale,1  will,  if  -such  sale,  for  any  cause,  prove  invalid,  be  subrogated  to 
all  the  rights,  remedies  and  privileges  of  the  creditor  at  whose 
instance  such  sale  was  made,  and  that  the  purchaser  will  have  a  lien  on 
the  land  for  his  reimbursement  if  he  be  in  possession.2  In  some  of 
the  States  this  right  is  secured  to  the  purchaser  by  statute.3  A  pur- 
chaser at  a  probate  sale  will  not  be  substituted  to  the  benefit  of  the 
claim  against  the  heirs  or  devisees  if  the  land  sold  was  not  in  fact 
liable  to  the  satisfaction  of  such  claim.  The  purchaser  cannot 
acquire  any  rights  in  the  premises  greater  than  those  of  the  executor 
or  administrator.4  If  the  admistrator  misappropriate  the  purchase 

112  Ind.  370;  14  N.  E.  Rep.  230.  Hudgin  v.  Hudgin,  6  Grat.  (Vi..)  320;  52  Am. 
Dec.  124;  Sands  v.  Lynluun,  27  Grat.  (Va.)  291;  21  Am.  Rep.  348.  Springs  r. 
Harven,  3  Jones  Eq.  (N.  Car.)  96;  Perry  v.  Adams,  98  N.  Car.  167;  3  S.  E.  Rep. 
729.  Robertson  v.  Bradford,  73  Ala.  116;  Wilson  v.  Holt,  83  Ala.  528;  3  So. 
Rep.  321;  Ellis  v.  Ellis,  84  Ala.  348;  4  So.  Rep.  868.  Valle  v.  Fleming,  29  Mo. 
152;  77  Am.  Deo.  557;  Haff  v.  Price,  50  Mo.  228;  Shroyer  v.  Nickell,  55  Mo.  264; 
Jones  v.  Manley,  58  Mo.  559;  Evans  v.  Snyder,  64  Mo.  517;  Sims  v.  Gray,  66  Mo. 
613;  Snider  v.  Coleman,  72  Mo.  568;  Schaefer  v.  Causey,  8  Mo.  App.  142.  Lee 
r.  Gardiner,  26  Miss.  521;  Jayne  v.  Boisgerard,  39  Miss.  796;  Short  v.  Porter, 
44  Miss.  533;  Gaines  v.  Kennedy,  53  Miss.  103;  Hill  v.  Billingsly,  53  Miss.  Ill; 
Cole  v.  Johnson,  58  Miss.  94;  McGee  v.  Wallis,  57  Miss.  638;  84  Am.  Rep.  484; 
Pool  v.  Ellis,  64  Miss.  555;  1  So.  Rep.  725.  Cathcart  v.  Sugenheimer,  18  So. 
Car.  123,  where  the  principle  of  the  text  was  applied  to  an  invalid  sale  of  a 
lunatic's  lands  for  tin-  payment  of  his  debts.  Levy  v.  Riley,  4  Oreg.  892,  aemble. 
Contra,  Nowler  v.  Colt.  1  Ohio,  519;  18  Am.  Dee.  640. 

'Jones  on  Mortgages,  §  874  et  geq.:  26  Am.  &  Eng.  Eneyc.  of  Law,  935;  24  id. 
261;  Sheldon  on  Subrogation,  g§  31,  33.  The  majority  of  the  illustrations  below 
were  cases  of  invalid  foreclosure  sales.  Robinson  v.  Ryan,  25  N.  Y.  820;  Wins- 
low  v.  Clark,  47  N.  Y.  261;  Miner  v.  Beekman,  50  N.  Y.  387.  Johnson  v.  Sand- 
boff,  30  Minn.  197.  Honaker  v.  Shough,  55  Mo.  472.  Prische  v.  Kramer.  16 
Ohfo,  125;  47  Am.  Dec.  868.  Curtis  v.  Gooding,  99  Ind.  45.  Hays  v.  Dalton,  5 
Le»(Tcnn.).  555.  Haymond  v.  Camden,  22  W.  Va.  180;  Hull  v.  Hull,  35  W.  Va. 
155;  18  8.  E.  Rep.  49.  Contra,  Branham  v.  San  Jose,  24  Cal.  585. 

•Geohcgan  v.  Ditto.  2  Metr.  (Ky.)  488;  74  Am.  Dec.  418.  If  the  purchaser  la 
fully  suhrogated  to  all  the  rights  of  the  judgment  creditor  he  would  have  a  lien 
by  virtue  of  the  judgment,  it  would  seem,  without  regard  to  the  question  of 
• 

1  Rev.  Code  N.  Car.  ch.  45.  §  27.  Code  Civ.  Proc.  Cal.  g  708;  Hitchcock  v. 
Caruther*.  100  Cal.  100.  Rev.  St.  Iowa  (1865),  8821.  Code  Civil  Proc.  N.  Y. 
%  1440.  But  the  purchaser  will  not,  under  this  statute,  be  entitled  to  relief  if  ho 
be  guilty  of  fraud  at  the  sale. 

4  Frost  v.  Atwood.  78  Mich.  67.  In  thin  case  an  administratrix  procured  a 
license  to  sell  for  the  payment  of  debts  certain  devised  estate  in  the  hands  of 
the  devisee,  when,  by  the  law  of  Michigan,  the  creditor  alone  and  not  the  admin- 


CAVEAT  EMPTOK. 

money  derived  from  the  invalid  sale,  so  that  the  same  shall  not  have 
been  applied  to  the  payment  of  the  debts  of  the  estate,  there  will 
be  nothing  to  which  the  purchaser  can  be  subrogated,  and  he  will 
be  without  relief.1  The  rights  of  the  purchaser  in  the  premises  are 
co-extensive  with  those  of  the  creditor  to  whom  he  claims  to  be 
subrogated.  If  the  debt  discharged  from  the  proceeds  of  the  sale 
under  execution  was  not  a  lien  or  charge  upon  the  property  sold, 
the  doctrine  of  subrogation  does  not  apply.2  Nor  can  the  purchaser 
claim  any  priority  or  precedence  to  which  the  creditor,  whose  lien 
he  claims,  was  not  entitled.8  In  respect  to  void  sales  in  proceedings 
for  partition  it  is  to  be  observed  that  if  the  purchase  money  has 
been  distributed  among  those  entitled,  they  and  those  claiming  under 
them  will  be  estopped  from  setting  up  their  title  against  the  purchaser 
until  they  reimburse  him  the  amount  paid  by  him  for  the  land.4 

The  doctrine  of  subrogation  as  applied  to  the  relief  of  purchasers 
at  void  execution  or  probate  sales  is  undoubtedly  of  comparatively 
recent  origin.  As  late  as  the  year  1835  a  judge  declared  that  he 
had  not  been  able  to  find  a  single  case  in  England  or  in  America  in 
which  this  relief  had  been  granted  to  the  purchaser,  upon  a  bill 
expressly  filed  by  him  for  that  purpose,5  though  the  courts  had  been 
in  the  habit  of  refusing  relief  to  the  execution  defendant,  or  other 
person  seeking  to  recover  the  estate,  until  he  should  reimburse  the 
purchaser  for  the  improvements  made  by  him.  Afterwards  this 
relief  was  granted  upon  bill  filed  by  the  purchaser,6  and  from  mere 
reimbursement  for  improvements,  redress  to  the  purchaser  has  been 
enlarged  to  entire  restitution  of  the  purchase  money. 

istrator  had  power  to  subject  property  in  the  hands  of  the  devisee  to  the  pay- 
ment of  the  testator's  debts.  The  purchaser  was  ejected  from  the  property  by 
the  devisee.  He  afterwards  filed  his  bill  against  the  devisee,  claiming  to  be  sub- 
rogated to  the  benefit  of  the  liens  discharged  with  the  purchase  money  paid  by 
him,  which  bill  was  dismissed.  The  case  contains  dicta  which  apparently  deny 
the  right  of  a  purchaser  at  a  void  private  sale  to  be  subrogated  to  the  lien  of 
the  probate  creditor  in  any  case. 

1  Pool  v.  Ellis,  64  Miss.  555.     Bennett  v.  Coldwell,  8  Baxt.  (Tenn.)  483. 

2  Sheld.  on  Subrogation,  §  209;  Bennett  v.  Coldwell,  8  Baxt.  (Tenn.)  483. 

3  Duncan  v.  Gainey,  108  Tnd.  579;  9  N.  E.  Rep.  470. 

4  Gaines  v.  Kennedy,  53  Miss.  103.     Chambers  v.  Jones,  72  111.  275.     Bland  v. 
Bowie,  53  Ala.  152;  Goodman  v.  Winter,  64  Ala.  410;  38  Am.  Rep.  13.     Fayill 
Y.  Roberts,  50  N.  Y.  222. 

6  Chancellor  WAL WORTH  in  Putnam  v.  Ritchie,  6  Paige  Ch.  (K  Y.)  405. 
« Bright  v.  Boyd,  1  Story  C.  C.  (U.  S.)  478.     Hatcher  v.  Briggs,  6  Oreg.  31. 


144  MARKETABLE  TITLE  TO  KEAL  ESTATE. 

§  66.  Subrogation  of  purchaser  where  sale  is  valid.  It  lias 
been  held  that  if  a  debtor  have  no  title  to  lands  sold  under  execu- 
tion against  him  the  purchaser  may,  in  equity,  recover  from  him  the 
amount  paid  for  the  property,  though  no  fraud  in  relation  to  the 
sale  he  imputed  to  the  debtor,  and  this,  upon  the  ground  that  the 
purchaser's  money  has  gone  to  discharge  a  valid  obligation  of  the 
execution  debtor,  and  that  the  former  should  in  equity  be  substi- 
tuted to  the  place  of  the  creditor,  and  treated  as  an  assignee  of  his 
rights  in  the  premises.1  This  doctrine  seems  a  complete  administra- 
tion of  justice  Ixjtween  the  parties,  placing  them  substantially  in  the 
same  position  in  which  they  were  before  the  debtor's  liability  was 
incurred.  But  it  cannot  be  reconciled  with  the  rule  caveat  emptor? 
and  it  has  also  been  repudiated  upon  lees  cogent  grounds,  namely, 
that  the  liability  of  the  execution  debtor  is  completely  extinguished 
by  the  payment  of  the  purchase  money,  and  that  the  purchaser, 
wit  i  respect  to  such  payment,  is  to  be  regarded  as  a  mere  volunteer.3 
In  some  of  the  States,  if  the  execution  plaintiff  become  the  pur- 
chaser of  the  premises,  and  it  afterwards  appears  that  the  execution 
debtor  had  no  title  to  the  property,  the  apparent  satisfaction  of  the 
judgment  by  the  sale  will  be  canceled  and  the  plaintiff  allowed  to 
take  out  a  new  execution.4  This  practice  is  equitable  and  just,  and 
prevails,  it  is  believed,  in  most  of  the  States.  But  it  is  clearly 

1  Muir  v.  Craig,  8  Blackf.  (Ind.)  293,  following  McGhec  v.  Ellis,  4  Lit*.  (Ky.) 
244;  14  Am.  Dec.  124,  a  case  in  which  the  sale  was  of  a  slave  to  whom  the  exe- 
cution debtor  1m- 1  no  title,  the  court  saying  that  the  principle  applied  with  the 
same  force  to  sales  of  real  property  as  to  sales  of  personalty.  Dunn  v.  Frazier, 
8  Blackf.  (Ind.)  432;  Preston  v.  Harrison,  9  Ind.  1;  Pennington  v.  Clifton,  10 
Ind.  172;  Julian  v.  Beal,  26  Ind.  220;  89  Am.  Dec.  460.  Roed  v.  Crosthwaite,  6 
Iowa,  219;  71  Am.  Dec.  406.  Moore  v.  Allen,  4  Bibb  (Ky.).  41,  where,  however, 
the  purcliaser  seems  to  have  been  induced  to  bid  by  the  fraudulent  conduct  of 
the  execution  debtors.  White  v.  Park,  5  J.  J.  Marsh.  (Ky.)  608;  Geoghegan  v. 
Ditto.  2  Mete.  (Ky.)  483;  74  Am.  Dec.  413;  McLaughlin  v.  Daniel,  8  Dana  (Ky.), 
182.  case  of  personal  property. 

*  Vanscoyoc  v.  Kimler,  77  111.  151;  Bishop  v.  O'Connor,  69  111.  431;  Burnett  v. 
Lockard.  60  III.  164. 

1  Btohop  v.  O'Conner.  69  111.  431. 

4  Freeman  on  Executions.  §{$  54,  301,  352.  Cross  v.  Zane,  47  Cal.  602.  Rittcr 
v.  Henshaw,  7  Iowa,  9H;  I,ndd  v.  Blunt,  4  Mass.  402:  Tate  v.  Anderson,  9  Mass. 
92;  Oooch  v.  Atkins.  14  Mam.  878.  Magwirc  v.  Marks.  28  Mo.  193;  75  Am.  Dec. 
121.  Swaggerty  v.  Smith.  1  Heisk.  (Tenn.)  408.  Townsend  v.  Smith.  20  Tex. 
465;  70  Am.  Dec.  400;  Andrews  v.  Richardson.  21  Tex.  287.  Tudor  v.  Taylor, 
26  Vt.  444.  Price  v.  Boyd,  1  Dana  (Ky.),  434.  This  right  is  also  in  substance 
secured  to  the  purchaser  by  statute  in  some  of  the  States,  whether  he  was  a 


CAVEAT   EMPTOR.  145 

inconsistent  with  the  rule  caveat  eniptor,  for  there  would  seem  to  be 
nothing  in  the  relations  of  the  execution  plaintiff  to  the  parties  and 
subje-ct-matter  that  would  place  him  upon  higher  ground  than  a 
stranger  in  respect  to  the  title.  There  are  cases  which  do  not 
rocognize  the  distinction,  and  which  hold  the  purchaser  bound  in 
<rither  case.1  It  would  seem  that  the  ends  of  justice  are  subserved 
by  disregarding  the  rule  caveat  emptor,  whether  the  execution 
plaintiff  or  a  stranger  becomes  the  purchaser,  so  far  as  to  permit 
either  to  have  a  ne\v  execution,  the  one  in  his  own  right  and  the 
other  as  equitable  assignee. 

The  doctrine  of  subrogation,  being  cognizable  in  equity  only,  will 
never  be  applied  in  favor  of  a  purchaser  who  has  been  guilty  of  fraud 
in  the  procurement  of  the  sale  in  respect  to  which  he  seeks  relief.3 

Whatever  doubt  may  exist  as  to  the  true  rule  with  respect  to  the 
right  of  subrogation  of  a  purchaser  at  a  sale  under  execution  or  by 
an  administrator,  when  he  has  been  evicted  by  the  holder  of  a  para- 
mount title,  there  would  seem  to  be  none  where  the  purchaser  pay  3 
off  incumbrances  on  the  property  to  protect  his  title,  and,  certainly, 
none  if  the  price  paid  by  him  for  the  property  was  less  than  its  fair 
market  value.  The  purchaser  in  such  case  will  be  presumed  to 
have  been  aware  of  the  existence  of  the  incumbrance  and  to  have 
made  his  bid  accordingly.3  Any  other  rule  would  operate  a  great 

stranger  or  a  party  to  the  execution.  Code  Civil  Proc.  Cal.  §  708.  Rev.  Code 
K  Car.  ch.  45,  §  27.  Code  Civil  Proc.  N.  Y.  §  1440.  Rev.  St.  Iowa  (1865), 
§  3321.  In  Halcombe  v.  Loudermilk,  3  Jones  L.  (N.  C.)  491,  it  was  held  that  the 
purchaser,  having  such  a  remedy  by  action  against  the  execution  debtor,  could 
not  maintain  a  proceeding  against  him  in  equity  for  subrogation  eo  nomine.  The 
same  principle  has  been  applied  where  the  sale  was  of  personal  property.  Whit- 
ing v.  Brooks,  2  N.  H.  79.  Adams  v.  Smith,  5  Cow.  (N.  Y.)  280;  Richardson  v. 
McDougall,  19  Wend.  (N.  Y.)  80;  Piper  v.  Elwood,  4  Den.  (N.  Y.)  165.  The 
principle,  however,  applies  without  distinction  to  levies  upon  realty.  Edde  v. 
Cowan,  1  Sneed  (Tenn.),  290;  Swaggerty  v.  Smith,  1  Heisk.  (Tenn.)  403. 

1  Vattier  v.  Lytle,  6  Ohio,  477;  Salmon  v.  Price,  13  Ohio,  383;  42  Am.  Dec. 
204;  Hollister  v.  Dillon,  4  Ohio  St.  205.  Perry  v.  Williams,  Dudley  (S.  Car.),  44. 
Vanscoyoc  v.  Kimler,  77  111.  151.  Freeman  v.  Caldwell,  10  Watts  (Pa.),  10. 
Halcombe  v.  Loudermilk,  3  Jones  L.  (N.  C.),  491. 

8Sheld.  Subrogation,  §44;  Freeman  Void  Jud.  Sales,  §  54;  26  Am.  &  Eng. 
Encyc.  of  L.  268,  269.  McCasky  v.  Graff,  23  Pa.  St.  321;  62  Am.  Dec.  336;  Gilbert 
v.  Hoffman,  2  Watts  (Pa.),  66;  26  Am.  Dec.  103.  Elam  v.  Donald,  58  Tex.  316. 

"Walden  v.  Gridley,  36  111.  523;  Bassett  v.  Lockwood,  60  111.  164.  Threlkeld 
v.  Campbell,  2  Grat.  (Va.)  198;  44  Am.  Dec.  384.  Harth  v.  Gibbes,  3  Rich.  L. 
(S.  Car.)  316. 

19 


146  MARKETABLE  TITLE  TO  BEAL  ESTATE. 

injustice,  for  the  purchaser  might,  by  recovering  the  amount  of  the 
inccmbranoea  from  the  execution  debtor,  acquire  the  estate  for  a 
trifling  sum.  But  if  the  purchaser  should  pay  the  fair  market  value 
for  the  property,  and  an  incumbrance  of  which  all  parties  were 
ignorant  should  afterwards  be  discovered,  and  the  purchaser  should 
be  compelled  to  remove  the  same  in  order  to  protect  himself,  no 
reason  is  perceived  why  he  would  not  be  as  much  entitled  to  subro- 
gation either  to  the  benefit  of  the  incumbrance  so  discharged  or  to 
the  lien  of  the  judgment  under  which  he  purchased  as  if  he  had 
been  evicted  by  an  adverse  claimant.1  If  the  existence  of  an  incum- 
brance should  be  seduously  and  fraudulently  concealed  from  the 
purchaser,  or  if  false  and  fraudulent  misrepresentations  should  be 
made  to  him  in  that  regard  by  any  one  interested  in  making  the 
sale,  he  would  have  his  action  to  recover  damages  for  the  deceit. 
The  purchaser,  of  course,  cannot  apply  any  part  of  the  unpaid  pur- 
chase money  to  the  discharge  of  prior  incumbrances  on  the  premises. 
Whatever  may  be  his  right  of  subrogation  as  against  the  execution 
debtor  or  other  person  prima/ily  bound,  he  has  none  against  the 
creditor  at  whose  instance  the  sale  was  made.2 

1  In  Walden  v.  Gridley,  36  111.  523,  it  was  said  that  it  might  be  that  a  pur- 
chaser under  an  execution  who  paid  off  a  prior  judgment  to  protect  his  title 
would  have  his  remedy  over  against  the  execution  debtor  for  the  amount  so  con- 
tributed to  pay  his  debt.  Where  premises  are  expressly  sold  in  partition,  sub- 
ject to  all  incumbrances,  the  purchaser  cannot  have  the  purchase  money  applied 
to  the  discharge  of  an  incumbrance,  the  existence  of  which  was  unknown  to  all 
parties  because  of  error  in  indexing.  Buttron  v.  Tibbitts,  10  Abb.  N.  Gas.  (N. 
Y.)  41. 

•Osterbury  v.  Union  Trust  Co.,  98  U.  8.  424.  Farmers'  Bank  v.  Peter  i:t 
Bush  (Ky.),  591.  Harth  v.  Gibbes,  3  Rich.  L.  (So.  Car.)  816. 


CHAPTER  VI. 

COVENANTS  WHICH  THE  PURCHASER  HAS  A  RIGHT  TO  DEMAND. 

USUAL  COVENANTS.     §  67. 

FROM  GRANTORS  IN  THEIR  OWN  RIGHT.     §  68. 

FROM  FIDUCIARY  GRANTORS.     §  69. 

FROM  MINISTERIAL  OFFICERS.     §  70. 

§  67.  USUAL  COVENANTS.  Covenants  for  title,  as  will  hereafter 
be  seen,  are  agreements  by  the  vendor  in  solemn  form,  inserted  in 
the  conveyance  to  the  purchaser  for  his  protection  in  case  his  title 
should  be  afterwards  overthrown,  or  incumbrances  upon  the  prop- 
erty successfully  asserted.  As  a  general  rule  the  purchaser's  right 
to  relief  against  the  vendor,  in  case  he  should  suffer  loss  through  a 
defective  title  after  the  contract  has  been  executed  by  a  conveyance, 
depends  upon  the  covenants  which  that  conveyance  contains.  If 
there  are  no  covenants  the  almost  universal  rule  is  that  the  purchaser 
is,  in  the  absence  of  fraud  or  mistake,  absolutely  without  relief  at 
law  or  in  equity.1  Consequently,  the  right  of  the  purchaser  to 
require  that  the  conveyance  shall  contain  covenants  adequate  for  his 
protection,  is  of  the  most  vital  importance  to  him,  and  should,  in 
those  States  where  the  purchaser  is  held  entitled  to  a  conveyance 
with  general  covenants,  never  be  deemed  to  have  been  parted  with, 
except  upon  clear  evidence  that,  by  the  terms  of  the  contract,  the 
vendor  was  bound  only  to  execute  a  quit-claim  conveyance,  or  a  con- 
veyance without  any  covenants  whatever. 

The  usual  covenants  for  title  in  the  American  practice  are  those  : 
(1)  of  seisin  ;  (2)  of  good  right  to  convey ;  (3)  against  incumbrances ; 
(4)  of  warranty ;  (5)  for  quiet  enjoyment,  and  (6)  for  further  assur- 
ance.2 Of  these  the  most  important  are  the  covenants  for  seisin, 

1  Post,  ch.  27. 

9  4  Kent  Com.  471;  Rawle  Covts.  (5th  ed.)  §  21;  Murphy  v.  Lockwood,  21  HI. 
618.  The  following  is  an  approved  form  of  the  several  covenants  for  title  in  use 
in  America.  They  usually  constitute  the  last  clauses  of  a  conveyance.  Such 
expressions  as  are  necessary  to  make  the  covenant  special  or  limited  are  inserted 
below  in  parentheses:  "Doth  hereby  covenant  for  himself  his  heirs  executors 
and  administrators  that  (notwithstanding  any  act  matter  or  thing  by  him  done) 
he  the  said  (vendor)  is  now  lawfully  seised  of  the  said  premises  And  hath  good 
right  to  convey  the  same  That  the  same  are  free  from  all  incumbrances  (done 
suffered  or  committed  by  him)  And  that  the  said  (purchaser)  his  heirs  and 
assigns  shall  and  may  at  all  times  hereafter  freely  peaceably  and  quietly  enjoy 

[147] 


148  MARKETABLE  TITT.V.   TO   REAL  ESTATE. 

against  incumbrances,  and  of  warranty.  The  covenant  of  good 
right  to  convey  is  embraced  in  that  for  seisin,  and  that  for  quiet 
enjoyment  in  the  covenant  of  warranty.  The  covenant  for  further 
assurance  is  not  generally  used  throughout  the  country.1  The  same 
necessity  does  not  exist  for  it  as  in  England,  where  a  very  artificial 
and  complicated  system  of  conveyancing  prevails.  The  nature  and 
incidents  of  each  of  these  covenants  will  be  hereafter  explained. 
For  our  present  purposes  it  is  only  necessary  to  say  that  each  of 
them  is  either,  (1)  general,  that  is,  against  the  acts,  claims  and 
demands  of  any  and  all  persons  whomsoever ;  or  (2)  special  cr  lim- 
ited, that  is,  against  the  acts  and  claims  of  the  grantor  or  of  any 
person  claiming  by,  through  or  under  him.  A  conveyance  with 
special  or  limited  covenants  only  is  commonly  called  a  "quit  claim," 
and  is,  with  respect  to  defects  of  title  not  arising  from  some  act  of 
the  grantor  or  those  claiming  under  him,  no  more  in  effect  than  a 
conveyance  without  covenants  of  any  kind.2  From  what  has  been 
said  it  follows  that  the  question,  "  "NVhat  are  the  usual  covenants  for 
title  ?"  is  to  be  considered  in  two  aspects,  namely,  (1)  whether  all  five 
(or  six)  of  the  covenants  can  be  required  from  the  vendor,  and  (2) 

the  same  without  molestation  or  eviction  of  him  the  said  (vendor)  or  any  person  or 
persons  whomsoever  (lawfully  claiming  or  to  claim  the  same  by  from  or  under 
him  them  or  any  of  them).  And  that  he  the  said  (vendor)  shall  at  all  times  here- 
after at  the  request  and  expense  of  the  said  (purchaser)  his  heirs  and  assigns 
mak«-  and  execute  suclr other  assurances  for  the  more  effectual  conveyance  of 
the  said  premises  us  shall  IK-  by  him  reasonably  required  And  that  he  the  said 
(vendor)  and  his  heirs  all  and  singular  the  messuages  and  tenements  etc  hereby 
granted  and  mentioned  or  intended  so  to  be  with  the  appurtenances  took  the  said 
(purchaser)  his  heirs  and  assigns  against  him  the  said  (vendor)  and  his  heirs  and 
against  all  and  every  other  person  or  persons  lawfully  claiming  or  to  claim  the 
same  or  any  part  thereof  (by  from  or  under  him  them  or  any  of  them)  shall  and 
will  by  these  presents  warrant  ami  forever  defend."  See  liawlu  Covts.  (5th  ed.) 
p.  29. 

1  Wilson  v.  Wood,  2  C.  E.  Gr.  (X.  J.  Eq.)  210. 

•The  term  "  quit  claim"  is  generally  defined  or  considered  to  be  u  deed  with- 
out covenant*  of  any  kind  as  to  the  title,  or  a  deed  with  special  or  limited  cove- 
nants for  title  only.  Rawle  Covts.  (5th  ed.)  §  80.  But  in  those  States  in  which 
by  statute  or  judicial  construction  general  covenants  of  warranty  are  implied 
from  certain  words  of  grant,  such  as  the  words  "do  hereby  sell  and  convey  "  a 
4nd  without  express  covenant*  for  title  is.  of  course,  not  necessarily  a  quit 
claim,  even  though  the  words  "quit  claim"  are  employed  in  the  operative 
words  of  conveyance,  if  language  from  which  general  covenants  can  be  implied 
is  uatd.  WilMin  v.  Irmh.  02  Iowa.  2ti»;  17  X.  W.  Rep.  511;  Sibley  v. 
Bulli*.  40  lowm.  42D.  Her  afeo,  Taylor  v.  Harrison.  47  Tex.  454.  461 ;  26  Am. 
Rep.  304.  Baldwin  v.  Drew,  (Tex.  Civ.  App.)  180  S.  W.  614. 


COVENANTS  WHICH  THE  PURCHASER  HAS  A  RIGHT  TO  DEMAND. 

whether  the  covenants  given  must  be  general  and  unlimited,  or 
limited  and  special. 

In  the  English  practice  the  purchaser,  in  the  absence  of  express 
contract  to  the  contrary,  undoubtedly  had  the  right  to  call  for  all 
of  the  covenants  for  title.1  Such,  also,  is  the  rule  in  those  of 
the  American  States  in  which  the  covenant  of  warranty  is  not  by 
law  or  custom  deemed  to  embrace  the  other  covenants.2  But  in 
some  of  the  States  this  right  has  been  held  to  be  limited  or  qualified 
by  particular  expressions  in  the  contract  —  expressions  which  in 
other  States  have  been  denied  that  effect.  Thus  in  New  York  and 
elsewhere  it  has  been  held  that  an  agreement  by  the  vendor  to 
execute  a  "  warranty  deed  "  obliged  him  to  insert  in  his  deed  no 
other  covenant  than  that  of  warranty.3  On  the  other  hand,  in 
Indiana  and  elsewhere  it  is  considered  that  such  an  agreement 
entitles  the  purchaser  to  all  the  principal  covenants  for  title.4  So, 
also,  where  the  vendor  agreed  to  convey  with  the  "usual 
covenants."  5 

In  some  of  the  States  it  is  an  established  rule  that  no  covenants 
for  title  can  be  required  from  the  seller,  if  the  contract  of  sale 
contains  no  provision  for  such  covenants,  nor  for  any  particular 
form  of  deed.5a 

If  the  contract  be  silent  as  to  the  number,  nature  and  kinds  of 
covenants  for  title  into  which  the  vendor  must  enter,  the  better 
opinion  seems  to  be  that  the  parties  will  be  presumed  to  have  con- 

1  2  Sugd.  Vend.  ch.  '14,  §  3. 

2  Post,  notes  4  and  5;  Murphy  v.  Lockwood,  21  111.  618. 

"Kirkendall  v.  Mitchell,  3  McL.  (U.  S.)  144.  Wilsey  v.  Dennis,  44  Barb. 
(N.  Y.)  354. 

4  Clark  v.  Redman,  1  Bl.  (Tnd.)  379;  Leonard  v.  Bates,  1  Bl.  (Ind.)  172; 
Dawson  v.  Shirley,  6  Bl.  (Ind.)  531;  Linn  v.  Barkey,  7  Ind.  69;  Bethell  v. 
Bethell,  92  Ind.  318,  321.  Bull  v.  Weisbrod,  185  Iowa  318,  170  N.  W.  536. 
Bowen  v.  Thrall,  28  Vt.  382. 

B  Wilson  v.  Wood,  2  C.  E.  Gr.  (N.  J.  Eq.)  216;  88  Am.  Dec.  231.  Drake  v. 
Barton,  18  Minn.  462.  An  agreement  to  execute  a  deed  containing  "  the 
usual  full  covenants  and  warranty  of  title '  will  not  be  satisfied  by  the  tender 
of  a  deed  containing  a  covenant  of  general  warranty  only;  the  deed  must 
contain  also  covenants  of  seisin  and  against  incumbrances.  McKleroy  v. 
Tulane,  34  Ala.  83. 

6*Van  Eps  v.  Schenectady,  12  Johns.  442,  7  Am.  Dec.  330;  Ketchum  v. 
Evertson,  13  Johns.  359,  7  Am.  Dec.  384;  Emerick  v.  Hackett,  192  N.  Y.  162, 
84  N.  E.  805. 


150  MAUKETAHLE    TITLE    TO    IMiAL    ESTATE. 

tracted  in  that  respect  with  reference  to  the  known  use  and 
custom  of  the  locality  in  which  the  land  is  situated.1  In  many  of 
the  States  it  is  not  customary  to  insert  any  other  covenant  than 
that  of  general  warranty  in  a  fee  simple  conveyance.1*  When 
such  a  custom  prevails,  it  is  apprehended  that  the  vendor  could 
bo  required  to  enter  into  no  other  covenant  for  title  unless  the 
contract  expressly  provided  for  other  covenants.  In  this  respect 
the  parties  will  be  deemed  to  have  been  governed  by  the  lex  rei 
silo?  and  not  by  the  lex  loci  conlractu.*  But  where  the  question 
is  whether  certain  language  in  a  deed  creates  a  particular 
covenant  for  title  or  what  covenants  the  deed  in  fact  contains, 
the  law  of  the  place  of  the  contract  governs.8  In  some  of  the 
States  it  is  held  that  a  purchaser  is  not  entitled  to  all  the  covenants 
for  title  unless  the  contract  expressly  requires  them.4 

The  student  and  the  practitioner  in  those  jurisdictions  in  which 
the  covenant  of  warranty  is  not  held  to  embrace  all  the  other  cove- 
nants for  title  should  be  warned  against  attributing  to  that  cove- 

1Dwight  v.  Cutler.  3  Mich.  58(1:  54  Am.  Dec.  105.  Wilson  v.  Wood,  2  C.  E. 
Gr.  (N.  J.  Eq.)  2UJ:  88  Am.  Dec.  231,  where  held  also  that  the  question 
what  are  the  usual  covenants  in  deeds  in  a  given  locality  may  be  referred  to 
a  master  in  chancery  for  inquiry  and  report.  Henderson  v.  Hay,  3  Bro.  Ch. 
632.  What  are  usual  covenants  for  title  is,  it  seems,  a  question  of  fact  to  be 
determined  by  custom  and  usage  of  the  locality  where  the  land  lies.  Rawle 
Covts.  (5th  ed.)  \  31.  Bennett  v.  Wnmack,  3  Car.  &  P.  00.  Putnam  Inv. 
Co.  v.  King.  90  Kan.  109.  150  Pnc.  559. 

'•  Dickinson  v.  Hoomes,  S  Orat.  (Va.)  353.  Green  v.  Irving,  54  Miss.  454; 
28  Am.  Rep.  300.  Leary  v.  Durham,  4  Oa.  601,  LuMPklN,  J.,  saying  that  in 
a  practice  of  more  than  twenty-five  years  he  had  never  seen  a  deed  contain- 
ing all  five  of  the  covenants  for  title. 

•Gault  v.  Van  Zile,  37  Mich.  22,  per  COOLEY,  C.  J.  Here  it  was  held  that 
the  purchaser  was  entitled  <o  such  deed  at*  is  usual  by  custom  of  the  rei  sit<r; 
this  in  analogy  to  the  rule  that  the  sullicieney  of  a  deed  is  to  be  determined 
by  the  lex  rri  »ita:  2  Pars.  Cont.  571,  note  h;  Hosford  v.  Nichols,  1  Paige 
Ch.  (N.  Y.)  220. 

•Bethell  v.  Bethell,  54  Ind.  428;  S.  C.,  92  Ind.  318,  and  23  Am.  Rep.  050. 
Here  the  land  was  in  Missouri,  and  the  deed  was  made  in  Indiana.  It  was 
held  that  the  Missouri  law  that  certain  covenants  should  be  implied  from 
words  of  grant  in  the  deed  would  not  prevail  in  Indiana,  so  as  to  oblige  the 
court  to  construe  the  deed  as  containing  these  covenants.  In  another  State  a 
contrary  view  has  been  taken  of  the  law  in  respect  to  covenants  which  run 
with  the  land.  Dalton  v.  Taliaferro,  101  III.  App.  592. 

1  l,oun»bery  v.  Ixu-ander,  10  C.  E.  Gr.  (N.  J.)  554;  Thayer  v.  Torrey,  37 
X.  .1.  I..  345;  Newark  Sav.  Jn*t.  v.  Jones,  37  N.  J.  Eq.  449. 


COVENANTS  WHICH  THE  PURCHASER  HAS  A  RIGHT  TO  DEMAND.       151 

nant  too  wide  a  scope.  At  the  first  glance,  it  would  appear  that 
this  covenant  is  amply  sufficient  for  the  protection  of  the  pur- 
chaser under  all  circumstances.1  This  is  true,  as  a  general  rule 
in  cases  where  the  defective  title  results  in  an  eviction  of  the 
purchaser.  But  where  there  has  been  no  eviction  and  the  grantor 
is  neither  an  insolvent  nor  a  non-resident,  it  is  very  generallv 
held  throughout,  the  United  States  that  the  purchaser  cannot 
resist  the  payment  of  the  purchase  money,  even  though  there  has 
been  a  total  failure  of  the  title.2  It  seems,  however,  that  if  the 
conveyance  to  the  purchaser  had  contained  a  covenant  for  seisin, 
which  is  broken  as  soon  as  made,  if  the  title  be  bad,  the  purchaser 
might  detain  the  purchase  money,  provided  he  restored  the  prem- 
ises to  the  vendor.3  It  is  hardly  necessary  to  say  that  these  obser- 
vations apply  only  to  cases  where  the  contract  has  been  executed 
by  a  conveyance.  The  covenant  of  warranty  cannot  be  treated 
as  a  covenant  against  incumbrances,  except  in  a  few  of  the  States, 
where  it  is  held  to  include  all  the  other  covenants  for  title.3*  The 
necessity  for  the  covenant  against  incumbrances  will  be  felt  where 
the  purchaser  seeks  to  compel  the  vendor  to  remove  an  incum- 
brance  from  the  premises  which  exceeds  in  amount  the  considera- 
tion of  the  conveyance.4 

If  the  vendor  was  fraudulently  induced  to  insert  a  covenant 
against  incumbrances  in  his  deed,  he  is  entitled  to  have  the  deed 
reformed  so  as  to  express  the  true  intention  of  the  parties.4a 

§  68.  FROM  GRANTORS  IN  THEIR  OWN  RIGHT.  Assuming 
that,  by  contract,  express  or  implied,  the  purchaser  may  require 
all  the  several  covenants  for  title,5  the  next  question  and  the  more 

1  Stewart  v.  West,  14  Pa.  St.  336,  where  GIBSON,  C.  J.,  speaking  of  the 
covenant  of  general  warranty,  said:  "  In  Pennsylvania,  it  has  been  retained 
by  unprofessed  scriveners  as  a  nostrum  supposed  to  contain  the  virtues  of 
the  whole  five,  but  its  potency  has  not  been  recognized  by  the  bench." 

'Post,  ch.  16. 

"Post,  ch.  26. 

"aFindlay  v.  Toncray,  2  Rob.  (Va.)  374,  379;  Wash.  City  Sav.  Bank  v. 
Thornton,  83  Va.  157;  2  S.  E.  Rep.  193. 

4  Post,  ch.  21. 

4*  Lyndon  Lumber  Co.  v.  Sawyer,  135  Wis.  525;   116  N.  W.  255. 

5  Church  v.  Brown,  15  Ves.  263.     In  this  case  Lord  ELDON  said  that  if  a 
man  covenanted  to  sell  a  fee  simple  estate  free  from  all  incumbrances,  and 
says  no  more,  it  is  clear  that  the  covenant  carries  in  gremio,  and  in  the 
bosom  of  it,  the  right  to  proper  covenants. 


152  MAKKETABLE    TITLE    TO    KEAL    ESTATE. 

important  one  is  whether  he  may  insist  that  those  covenants  shall 
be  general  and  unlimited,  and  not  merely  limited  or  sj>ecial.  In 
England,  a  vendor  who  actually  purchased  the  estate  himself  for 
money,  and  did  not  acquire  it  by  gift,  devise  or  descent,  can  be 
required  to  enter  into  covenants  only  against  his  own  acts,  or  those 
of  persons  claiming  under  him.1  If  he  did  not  acquire  the  estate 
for  a  valuable  consideration,  his  covenants  must  extend  to  the  acts 
of  the  last  purchaser.2  But  in  no  case  could  he  be  required  to 
extend  his  covenants  beyond  the  acts  of  the  last  purchaser.  In 

*2  Sugd.  Vend.  (14th  ed.)  232,  234;  3  Powell  Conv.  206,  210;  Wakeman 
r.  Dutches  of  Rutland,  3  Ves.  Jr.  233;  Lloyd  v.  Griffiths,  3  Atk.  267;  Picketl 
v.  Loggon,  14  Ves.  239;  Thackeray  v.  Wood,  6  B.  &  S.  (Q.  B.)  773.  The 
following  extract  from  the  opinion  of  Lord  ELDOX,  in  Browning  v.  Wright, 
2  Bos.  &  Pul.  13,  22,  clearly  sets  forth  the  English  rule  as  to  the  extent  of 
covenants  that  may  be  required  of  one  selling  a  fee  in  his  own  right.  "This 
transaction  is  a  purchase  of  an  estate  of  inheritance  in  fee,  and  the  first 
question  is,  what  will  be  the  nature  and  effect  of  a  conveyance  carrying  such 
a  contract  into  execution?  If  a  man  purchase  an  estate  of  inheritance  and 
afterwards  sell  it,  it  is  to  be  understood,  prima  facie,  that  he  sells  the  estate 
as  he  received  it,  and  the  purchaser  takes  the  premises  granted  by  him  with 
covenants  against  his  acts.  If  the  vendor  has  taken  by  descent,  he  covenants 
against  his  acts  and  those  of  his  ancestor;  and  if  by  devise,  it  is  not  unusual 
for  him  to  covenant  against  the  acts  of  the  devisor  as  well  as  his  own.  In 
fact  he  says,  I  sell  this  land  in  the  same  plight  that  I  received  it,  and  not  in 
any  degree  made  worse  by  me.  It  was  argued  that  if  this  were  so,  a  man  who 
lias  only  an  estate  for  life  might  convey  an  estate  in  fee,  and  yet  not  be  liable 
to  the  purchaser.  This  seems  at  first  to  involve  a  degree  of  injustice,  but  it 
all  depends  on  the  fact  whether  the  vendor  be  really  putting  the  purchaser 
into  the  same  situation  in  which  he  stood  himself.  If  he  has  bought  an 
estate  in  fee,  and  at  the  time  of  the  re-sale  has  but  an  estate  for  life,  it 
must  have  been  reduced  to  that  estate  by  his  own  act,  and  in  that  case  the 
purchaser  will  be  protected  by  the  vendor's  covenants  against  any  act  done 
by  himself.  But  if  the  defect  in  his  title  depend  upon  the  acts  of  those  who 
had  the  entate  before  him,  and  he  honestly  but  ignorantly  proposes  to  another 
person  to  stand  in  his  situation,  neither  hardship  or  injustice  can  be  done. 
What  is  the  common  course  of  business  in  such  a  case?  An  abstract  is  laid 
before  the  purchaser's  counsel;  and  though  to  a  certain  extent  he  relies  on 
the  vendor's  covenant,  still  his  chief  attention  is  directed  to  ascertaining 
what  is  the  estate,  and  how  far  it  is  supported  by  the  title.  The  purchaser, 
therefore,  not  being  misled  by  the  vendor,  makes  up  his  mind  whether  hi- 
shall  complete  his  bargain  or  not,  and  if  any  doubts  arise  on  the  title,  it 
rests  with  the  vendor  to  determine  whether  he  will  satisfy  those  doubts  by 
covenants  more  or  less  extensive.  Prima  facie,  therefore,  in  the  conveyance 
of  an  estaU*  of  inheritance  we  are  led  to  expect  no  other  covenants  than  those 
which  guard  againxt  the  nets  of  the  vendor  and  his  heirs. 

•2  Sugd.  Vend.   (8th  Am.  ed.)   232. 


COVENANTS  WHICH  THE  PURCHASER  HAS  A  RIGHT  TO  DEMAND.       153 

America,  the  rule  prevailing  in  most  of  the  State  is  that  the 
vendor's  covenants  must  be  general  or  unlimited,1  and  that  they 
must  be  full,  that  is  consisting  of  all  the  usual  covenants  and  not 
merely  a  covenant  of  general  warranty.  Especially  does  this  rule 
prevail  in  the  younger  States  and  in  sparsely  settled  communi- 
ties where  accurate  and  thorough  examinations  of  title  are  fre- 
quently dispensed  with,  and  in  which,  as  a  necessary  consequence, 

1  Witter  v.  Biscoe,  13  Ark.  422;  Bagley  v.  Fletcher,  44  Ark.  153;  Rudd  v. 
Savelli,   44   Ark.    145.      Steele  v.   Mitchell,   Pr.   Dec.    (Ky.)    47;    Fleming  v. 
Harrison,  2  Bibb  (Ky.),  171;  4  Am.  Dec.  691;  Vanada  v.  Hopkins,  1  J.  J.  M. 
(Ky.)    293;    19  Am.  Dec.   92;    Andrews  v.   Ward,   17   B.  Mon.    (Ky.)    518; 
Gaithor  v.  O'Doherty,  (Ky.)   12  S.  W.  Rep.  306.   Whiteworth  v.  Pool,  29  Ky. 
L.  R.  1004;  96  S.  W.  880.    Clark  v.  Redman,  1  Bl.   (Ind.)   379.    Faircloth  v. 
Isler,  75  N.  C.  551;  Gilchrist  v.  Buie,  1  Dev.  &  Bat.  Eq.   (N.  C.)   358;  Henry 
v.  Liles,  2  Ired.  Eq.   (N.  C.)   407.     Vardeman  v.  Lawson,  17  Tex.  11;  Phillips 
v.  Herndon,  78  Tex.  378.     Even  though  the  vendor  understood  that  he  was 
only  to  make  a  quit-claim  deed,  if  such  understanding  was  not  known  to  the 
purchaser.     Jones  v.  Phillips,  59  Tex.  609.     Holland  v.  Holmes,  14  Fla.  390. 
Dwight  v.  Cutler,  3  Mich.  566;  64  Am.  Dec.  105;   Allen  v.  Hazen,  26  Mich. 
143.     Herryford  v.  Turner,  67  Mo.  296,  298.     Kenny  v.  Hoffman,  31   Grat. 
(Va.)  442;  Hoback  v.  Kilgore,  26  Grat.  (Va.)  442;  21  Am.  Rep.  317;  Dickin- 
son v.  Hoomes,  8  Grat.    (Va.)    353,  394;  Rucker  v.  Lowther,  6  Leigh    (Va.), 
259.     Cf.  Remington  v.  Hornby,  4  Munf.    (Va.)    140.     Tavenner  v.  Barrett, 
21  W.  Va.  656,  681.     Clark  v.  Lyons,  25  111.  105.  Johnston  v.  Piper,  4  Minn. 
195.     Davis  v.  Henderson,  17  Wis.  110.  Tremaine  v.  Lining,  Wright   (Ohio), 
644;  but  see  Pugh  v.  Chasseldine,  11  Ohio,  109;  37  Am.  Dec.  414.     The  pur- 
chaser is  entitled  to  a  deed  with  general  warranty  whether  he  buys  at  auction 
or  private  sale.     Goddin  v.  Vaughn,  14  Grat.   (Va)    102,  117.    An  agreement 
in  the  contract  of  sale  that  the  land  sold  '"shall  be  in  the  quiet  and  peace- 
able possession  of  the  vendee  forever  without  any  let,  hindrance,  suit,  molesta- 
tion or  trouble  entitles  the  purchaser  to  a  conveyance  with  general  warranty. 
Slack  v.  Thompson,  4  T.  B.  Mon.    (Ky.)    462.     A  bond  to  make  '"sufficient 
title"  requires  a  deed  with  general  warranty.     Hedges  v.  Kerr,  4  B.  Mon. 
(Ky.)    528.     An  agreement  to  give  a  "warranty  deed"  means  a  deed  with 
general   warranty.      Allen   v.   Hazen,   26    Mich.    142.     Johnston   v.   Piper,   4 
Minn.    192    (133).      In   Allen   v.   Yeater,    17   W.   Va.    128,   the   vendor   con- 
veyed "with  warranty."     This  was  held  to  mean  with  general  warranty. 
It  was  said  that  the 'deed,  being  taken  most  strongly  against  the  grantor, 
he   should   have   conveyed  with   "special  warranty"   if  he   desired  to   limit 
his   liability.     A  bond  to  "make  indefeasible  title   in  fee   simple,   such  as 
the   State  requires,"   demands   a  deed  with   covenant  of  general   warranty. 
Kelly  v.  Bradford,  3  Bibb  (Ky.),  317;  6  Am.  Dec.  656.    So,  also,  an  agreement 
to  make  "as  good  a  deed  as  can  be  had"  Day  v.  Burnhan*,  89  Ky.  76;   1 
S.  W.  Rep.  807.     An  agreement  to  "make  a  sufficient  title  as  far  as  their 
claim  extends  on  said  lands  "  obliges  the  vendors  to  convey  with  special  war- 
ranty only.   Gilchrist  v.  Buie,  1  D.  &  B.  Eq.  (N.  Car.)  357.   So,  also,  an  aj 
ment  "to  furnish  a  satisfactory  abstract  of  title  and  give  a  quit-claim ^de< 
Fitch  v.  Willard,  73  111.  92.    In  Day  v.  Burnham,  89  Ky.  76;  11  S.  W.  Rep 
807,  it  was  said  that  the  bond  of  a  vendor  in  general  terms  to  convey  land 


154  MARKETABLE    TITLE    TO    ItEAL    ESTATE. 

titles  are  more  insecure  than  in  older  and  more  densely  populated 
sections,  where  few  transfers  of  real  property  are  made,  except 
upon  the  adviee  and  assistance  of  competent  persons.1  In'several 
of  the  Atlantic  States  the  generally  prevalent  rule  is  that  in  the 
absence  of  express  provision  to  the  contrary,  the  vendor  can  be 
required  to  covenant  only  against  his  own  acts.1  And  it  has  been 
held  that  if  the  purchaser  enters  into  a  sealed  agreement  of  sale. 
e.  fj.,  a  title  bond,  without  requiring  the  vendor  to  insert  provisions 

upon  ]>ayment  by  the  vendee  of  the  agreed  purchase  money  is  in  legal  con- 
templation a  covenant  that  he  has  or  will  procure  and  make  a  good  title  to 
the  entire  quantity  sold  and  in  his  deed  warrant  the  title  against  all  claims 
and  that  such  undertaking  is  limited  only  when  in  plain  terms  so  expressed. 
In  the  State  of  Washington  the  grantee  has  by  statute  the  same  rights 
under  a  quit-claim  deed,  except  as  to  an  after-acquired  estate,  that  he  would 
have  under  a  deed  with  general  warranty.  Ankeny  v.  Clark,  (Wash.  Ty.) 
20  I'ac.  Rep.  586. 

lWith  respect  to  the  American  doctrine  as  to  the  covenants  which  the  pur- 
chaser  is  entitled  to  require,  Mr.  Rawle,  in  his  able  and  copious  treatise  on  the 
law  (>i  Covenants  for  Titles,  observes:  "  It  is  difficult  to  determine  by  gen- 
eral and  precise  rule  what,  on  this  side  of  the  Atlantic,  arc  the  "  usual 
covenants" — that  is  to  say,  the  covenants  which  a  vendor  should  give,  and 
a  purchaser  expect  —  as,  owing  to  various  causes,  the  practice  of  conveyanc- 
ing ilifTcrs  widely  in  the  two  countries.  It  is  obvious  that  much  of  the  practic 
which  prevails  where  the  state  of  society  has  long  been  permanent,  the  tit  IP* 
old,  and  to  a  greater  or  less  extent  carefully  examined  at  every  purchase, 
lose*  its  application  in  a  comparatively  new  country,  and  the  same  covenant « 
which  might  satisfy  a  purchaser  in  England  or  Massachusetts  might  not 
satisfy  a  purchaser  in  Idaho  or  Wyoming.  As  precision  of  conveyancing 
increases,  a  purchaser  is  less  anxious  for  general  covenants  than  where  he 
bm  *  in  comparative  ignorance  of  the  title,  and  relies  upon  such  covenants 
for  bis  protection.  Hence,  a  great  difference  will  be  found  to  exist  as  to  the 
practice,  not  only  on  the  different  sides  of  the  Atlantic,  and  among  different 
State*,  but  even  between  different  parts  of  the  same  State.''  Covts.  for 
Title  (">th  edj,  p.  35,  referring  to  Whitehead  v.  Carr,  6  Watts  (Pa.),  309, 
and  Pitcher  v.  Livingston,  4  Johns,  (X.  Y.)  14;  4  Am.  Dec.  229.  These 
remarks  were  approved  in  Ehvight  v.  Cutler,  3  Mich.  50(5;  64  Am.  Dec.  103. 

•'See  Rawle  Covts.  (5th  ed.)  §  2SO.  Kyle  v.  Kavanaugh,  103  Mass,  356, 
3.™-.  4  Am.  Rep.  560.  Mead  v.  Johnson,  3  Conn.  502;  Dodd  v.  Seymour,  21 
Conn.  480.  Ketchum  v.  Evert  son,  13  Johns.  (X.  Y.)  359;  7  Am.  Rep.  384; 
i.  •!.  v  v.  Pierce,  16  Johns.  (X.  Y.)  267;  Fuller  v.  Hubbard,  16  Cow.  (N.  Y.) 
13;  10  Am.  Dec.  423;  Van  Eps  v.  Schenectady,  12  Johns.  (X.  Y.)  436;  7  Am. 
Dro.  330;  Ryder  Y.  Jenny,  2  Robt.  (X.  Y.)  68.  Wither*  v.  Raird,  7  Watts 
(Pa.),  229;  32  Am.  Dec.  754;  Espy  v.  Anderson,  14  Pa.  St.  30S,  312;  Cadwal- 
ader  v.  Tryon.  37  Pa.  St.  3 IS,  322;  Lloyd  v.  Farrell,  48  Pa.  St.  78;  Payne  v. 
Ki-hoK  (Pa.  St.)  13  All.  Rep.  805.  In  Barlow  v.  Scott.  24  X.  Y.  40,  the 
Kp!l«»r  having  represented  Hut  he  held  under  n  warranty  deed,  and  both 
pnrtiri  supposing  such  to  have  In^n  the  case,  the  purchaser  was  held  entitled 
in  require  a  conveyance  with  general  warranty. 


COVENANTS  WHICH  THE  PUKCHASElt  HAS  A  RIGHT  TO  DEMAND.       155 

obliging  him  to  warrant  the  title  generally,  it  will  be  presumed  that 
it  was  the  understanding  and  intention  of  the  parties  that  ttare 
was  to  be  no  such  warranty.1  Of  course,  if  there  be  an  express 
contract  with  reference  to  the  kind  of  title  the  purchaser  is  to 
receive,  the  covenants  which  he  may  require  will  depend  upon  the 
construction  of  that  contract.2  An  agreement  to  give  a  "  good  and 
sufficient  "  title  obliges  the  vendor  to  execute  a  warranty  deed 
to  the  purchaser.3 

An  agreement  to  execute  a  deed  clear  of  all  incumbrances 
except  a  certain  ground  rent,  entitled  the  purchaser  to  a  deed 
with  a  covenant  against  incumbrances,  excepting  the  ground  rent. 
And  the  purchaser  may  rely  upon  such  covenant,  and  is  not  bound 
to  insist  upon  the  removal  of  the  incumbrance  as  a  condition  pre- 
cedent to  his  acceptance  of  the  title.4  If  by  mistake  the  pur- 
chaser accepts  a  quit-claim  instead  of  a  deed  with  full  covenants, 
to  which  under  the  contract  he  is  entitled,  the  seller  may  be 
compelled  to  execute  a  deed  with  such  covenants.5  And  a  pur- 
chaser who  has  been  fraudulently  induced  to  accept  a  quit-claim 
deed  will  be  entitled  to  relief.6  A  grantee  who  reconveys  to  his 
grantor  upon  rescission  of  the  contract,  can  be  required  to  cove- 
nant only  against  the  acts  of  himself  and  those  who  claim  under 
him.7  To  such  a  covenant  the  original  grantor  will,  of  course, 
be  entitled.8  It  has  been  said  that  if  it  appear  that  both  parties 
knew  that  the  title  of  the  seller  was  liable  to  be  defeated  by  the 
happening  of  a  certain  contingency,  it  will  be  presumed  that 
the  seller  engaged  to  convey  with  special  warranty  only.9  How- 
ever this  may  be,  no  ground  for  any  such  presumption  can  be 
easily  perceived  in  a  case  in  which  both  parties  were  aware  that 

1  Johnston  v.  Mendenhall,  9  W.  Va.  112.  This  distinction  does  not  seem  to 
have  been  recognized  in  Gaither  v.  O'Doherty,  (Ky.)  12  S.  W.  Rep.  306,  where 
it  was  held  that  if  a  title  bond  contain  no  stipulation  as  to  title,  the  vendor 
must  convey  with  warranty. 

'Babcock  v.  Wilson,  17  Me.  372;  35  Am.  Dec.  263. 

"Toomey  v.  Read,  133  Ga.  855;  67  S.  E.  100. 

4  Bryant  v.  Wilson,  71  Md.  440. 

5  Point  Street  Iron  Works  v.  Simmons,  11  R.  I.  496. 

•Rhode  v.  Alley,  27  Tex.  443.     See,  also,  Chastain  v.  Staley,  23  Ga.  26. 

7  Concord  Bank  v.  Gregg,  14  N.  H.  331. 

8  Shorthill  v.  Ferguson,  47  Iowa,  284. 
•Dickinson  v.  Hoomes,  8  Grat.  (Va.)  394. 


156  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

the  title  was  defective,  and  the  vendor  sold  at  a  fair  price.1  The 
seller  often  agrees  to  convey  with  general  warranty  in  order  to 
quiet  the  objections  of  the  purchaser  to  the  title.  It  has  been 
held  that  if  there  be  a  cloud  uj)on  the  title  the  purchaser  cannot 
be  required  to  accept  a  quit-claim  deed.2  It  is  the  duty  of  the 
vendor  to  remove  the  cloud  or  incumbrance,  or  to  assume  the 
responsibility  thereof  by  executing  a  deed  with  general  warranty. 
A  jx»rson  who  joins  in  a  conveyance  of  land  merely  that  an  objec- 
tion to  the  title  may  be  removed,  cannot,  of  course,  be  required  to 
covenant  generally.8  Heirs  who  are  directed  to  perform  specifi- 
cally the  contract  of  their  ancestor  for  the  sale  of  his  lands  can 
l»e  required  to  covenant  only  against  their  own  acts.4  In  the 
Knglish  practice  they  are  required  to  covenant  also  against  the 
acts  of  the  ancestor,5  and  there  seems  to  be  no  good  reason  why 
they  should  not  l>e  required  so  to  covenant  in  America,  at  least  to 
the  extent  of  assets  which  they  may  have  received  from  the 
ancestor's  estate.' 

At  common  law  it  was  useless  to  require  covenants  from  a 
married  woman,  since  they  could  not  be  enforced.  In  England, 
however,  and  in  some  of  the  American  States,  it  has  been  held 
that  she  may  bind  her  separate  estate  in  equity  by  her  covenants. 
In  other  States  it  is  considered  that  the  power  so  to  bind  her 
wparatc  estate  doj>ends  upon  the  terms  of  the  instrument  creat- 
ing that  estate,  but  now  in  England,  and  in  certain  of  the  States, 
statutory  provisions  exist  expressly  or  impliedly  empowering  a 
married  woman  to  bind  her  separate  estate  by  her  covenants.  In 
other  States  the  power  is  expressly  denied  her  by  statute,  except 
by  way  of  estoppel.7  Where  such  power  exists  no  reason  is  per- 
ceived why  the  same  covenants  as  might  be  required  of  one 

'If  the  title  of  the  vendor  IK  questionable,  he  should  covenant  generally. 
Fearnc  Po*lh.  Work*.  110,  118.  Browing  v.  Wright,  2  Bos.  &  Pul.  13. 

'Potter  v.  Tuttle,  22  Conn.  513. 

"Hohaek  v.  Kilgorr.  26  Orat.   (Va.)  442,  445;  21  Am.  Rep.  317. 

•Hill  v.  Reflwgipu,  17  Barb.  (X.  Y.)  102.  Boggess  v.  Robinson,  5  W.  Va. 
402.  Hyatt  v.  Secley,  1  Kern.  (N.  Y.)  56. 

•2  Sugd.  Vend.  (8lh  Am.  id.)  232.     Browning  v.  Wright.  2  Bos.  &  Pul.  22. 

••Holman  v.  Criiiwell,  15  Tex.  305.  This  was  denied  in  Hill  v.  Keasegicu,  17 
Barb  (X.  Y.)  162,  107. 

f  SM  generally  an  to  the  power  of  a  married  woman  to  bind  her  estate  by 
covenant*  for  title,  Rawlc  Covts.  (5th  ed.)  (  306  et  «wq. 


COVENANTS  WHICH  THE  PUBCHASER  HAS  A  RIGHT  TO  DEMAND.       157 

under  no  personal  disabilities,  should  not  be  required  of  her; 
otherwise  the  grantee  of  a  married  woman  might  be  compelled 
to  pay  the  purchase  money  after  he  had  been  evicted  by  an 
adverse  claimant,  in  consequence  of  the  rule  that  a  purchaser 
holding  under  a  conveyance  without  covenants  for  title,  is  without 
relief  in  case  he  loses  the  estate.1 

Persons  executing  mortgages,2  and,  presumably,  deeds  of  trust 
to  secure  debts,  unless  the  instrument  in  either  case  be  a  security 
for  the  purchase  money  of  the  estate,3  must  covenant  against  the 
acts  of  all  persons  whomsoever.  The  same  covenants  may  be 
required  of  a  lessor,4  the  reason  being  that  the  title  is  never 
examined  upon  a  demise  for  years. 

Tenants  in  common  and  joint  tenants  should  covenant  sev- 
erally,5 and  the  covenants  of  each  should  be  extended  no  further 
than  the  undivided  share  of  each.6  The  vendor  cannot  be 
required  to  covenant  against  acts  of  sovereignty,  or  against  the 
public  rights  of  the  State,  such  as  the  riparian  rights  of  the 
public  in  a  river.  The  exercise  of  those  rights,  though  resulting 
in  an  eviction,  would  not  operate  a  breach  of  the  covenant  of 
warranty.7  It  seems  that  a  bankrupt  cannot  be  compelled  to 

'Post,  ch.  27. 

2Sugd.  Vend.  (14th  ed.)  551;  Wins.  Real  Prop.  (8th  Am.  ed.)  447.  Cripps 
v.  Eeade,  6  Term,  606  06.  In  Lockwood  v.  Sturtevant,  6  Conn.  372,  384,  the 
singular  objection  was  made  that  covenants  of  seisin  and  of  good  right  to 
convey  in  a  mortgage  are  invalid.  The  objection  of  course  was  held  untenable. 
See  Lloyd  v.  Quimby,  5  Ohio  St.  262,  and  Butler  v.  Seward,  10  Allen  (Mass.). 
466,  for  instances  in  which  protection  to  the  mortgagee  was  afforded  by 
covenants  for  title. 

3  Williams  Real  Prop.    (6th  Am.  ed.)    447,  n.  4. 

4  Wms.  Real.  Prop.  ( 6th  Am.  ed. )  447,  n.  1 ;  Bart.  Conveyancing,  75 ;  Rawle 
Covts.   (5th  ed.)   §  26. 

5  Coe  v.  Harahan,  8  Gray  (Mass.),  198.     Heirs  joining  in  a  deed  with  war- 
ranty, without  restriction  as  to  the  interest  owned  by  each,  are  joint  and 
not  several  covenantors.     Phipps  v.  Sappenfield,  54  Ind.  App.  139,  102  X.  E. 
841. 

6  Rawle  Covt.   (5th  ed.)   p.  32,  citing  1  Dav.  Con.  (3d  ed.)   114.    Armstrong 
v.  Coal  Co.,  67  W.  Va.  589,  69  S.  E.  195.    A  covenant  by  a  joint  owner  to  the 
extent  of  his  interest  binds  him  only  to  that  extent.     Coster  v.  Mfg.  Co.,   1 
Gr.  Ch.  (N.  J.)  467. 

7  See  post,  §   143.     Bigler  v.  Morgan,  77  X.  Y.  312.     Here  the  vendor  con- 
tracted to  convey  by  warranty  deed  to  the  purchaser  a  tract  of  land  having 
oyster  beds  appurtenant  thereto.    It  was  held  that  all  the  contract  bound  the 
vendor  to  convey  was  a  clear  title  to  the  upland,  and  such  interest  in  the 


158  MARKETABLE    TITLE    TO    KKAL    ESTATE. 

execute  a  conveyance  with  covenants,  though  it  is  the  practice  for 
him  to  give  covenants.1 

§  (50.  FBOM  FIDUCIARY  GRANTORS.  One  who  sells  property 
in  which  he  has  no  beneficial  interest,  for  example,  a  trustee,2 
executor 3  assignee,4  can  be  required  to  enter  into  no  other 
covenant  than  that  he  has  done  no  act  to  incumber  the  estate.  In 
the  English  practice,  however,  the  purchaser  has  been  held  entitled 
to  require  the  usual  covenants  from  ceshiis  cjue  tru^t?  and  the 

land  covered  by  the  water  as  the  law  of  the  State  gave  to  the  owner  of  the 
upland;  that  the  riparian  rights  were  subject  to  the  public  rights  of  the 
State,  and  that  the  vendor  could  not  be  required  to  warrant  against  them, 
or  against  parties  claiming  privileges  granted  by  the  State. 

^ugd.  Vend.  (14th  ed.)  575.  Waugh  v.  Land,  Coop.  132.  Ex  parte 
Crowder,  2  Rose,  327. 

'Dart  V.  &  P.  (5th  ed.)  130;  Sugd.  Vend.  (14th  ed.)  574  (234);  Lewin 
Trustees  (1st  Am.  ed.),  §  441;  Rawle  Covts.  (5th  ed.)  §  33.  Faircloth  v. 
Isler,  75  N.  Car.  551;  Ennis  v.  Leach,  1  Ired.  Eq.  (N.  C.)  416.  Barnard  v. 
Duncan,  38  Mo.  170,  181;  90  Amr.  Dec,  416.  Fleming  v.  Holt,  12  W.  Va.  143, 
162;  Tavenner  v.  Barrett,  21  W.  Va.  656.  If  he  agree  to  convey  with  warranty, 
the  agreement  is  void  and  cannot  be  enforced.  Bnackenridge  v.  Dawson,  7 
Ind.  383,  387.  He  may  be  required  to  insert  a  covenant  against  fiis  own  acts. 
Dwinel  v.  Veazie,  36  Me.  509;  69  Am.  Dec,  84.  A  fiduciary  vendor  cannot  be 
compelled  to  covenant  for  further  assurance.  Bart.  Conv.  70.  Worley  v. 
Frampton,  5  Hare,  560.  In  Page  v.  Brown,  3  Beav.  36,  it  was  held  that 
executor ial  trustees,  seeking  specific  performance  of  a  contract  made  by  their 
testator,  must  enter  into  such  covenants  as  the  testator  would  have  been 
obliged  to  g've. 

JSumner  v.  William*,  8  Mass.  162,  201;  5  Am.  Dec.  83,  the  court  saying: 
"An  administrator,  acting  under  a  license  and  exercising  an  authority  to  sell 
the  real  estate  of  his  intestate,  is  not  required  by  any  duty  of  his  office  or 
truj*t  to  enter  into  a  personal  covenant  for  the  absolute  perfection  of  the  title 
which  he  undertakes  to  convey,  or  for  the  validity  of  the  conveyance  beyond 
his  own  acts."  Hodges  v.  Saunders,  17  Pick.  (Mans.)  476.  Shontz  v.  Brown, 
27  Pa.  St.  123.  Grantland  v.  Wight,  5  Munf.  (Va.)  205;  Goddin  v.  Vaughan, 
14  Grat.  (Va.)  102.  Covenants  of  title  implied  from  the  words  "grant, 
bargain  and  sell,"  in  a  conveyance  by  administrators,  impose  no  personal 
liability  on  them.  Shontz  v.  Brown,  27  Pa.  St.  123,  134.  Xor  those  implied 
from  the  words  "  grant  and  demise  "  in  a  lease.  Wclwter  v.  Conley,  46  111. 
14;  92  Am.  Dec.  234.  And,  generally,  covenants  for  title  will  not  be  implied 
a»  against  an  executor.  Dow  v.  Lewis,  4  Gnay  (Mass.)  468,  473.  Nemblr, 
that  if  a  committee  of  a  lunatic,  having  no  power  at  common  law  or  by 
statute  to  make  a  leaw  of  the  lunatic's  fend*,  execute  such  a  lease,  the  usual 
lewor'a  covenant*  will  be  implied  from  the  word  fcmi*e,  and  the  committee 
be  held  personally  liable  on  the  covenant.  Knipe  v.  Palmer,  2  Wilson,  130. 

4  White  v.   Foljaml*.   11   Ve*.  337,  345.     See,  ante,  $  64. 

•Sugd.  Vend.  (14th  ed.)  574,  575;  Rawle  Covt«.  (6th  ed.)  $  34.  London 
Bridge  Act*,  13  Simons,  176;  Poulet  v.  Hood,  L.  R.,  5  Eq.  115.  But  see 


COVENANTS  WHICH  THE  PURCHASER  HAS  A  BIGHT  TO  DEMAND.       159 

same  rule  has  in  a  few  instances  been  enforced  in  America.1  The 
usual  covenants  may  be  required  from  an  agent  in  behalf  of 
his  principal,2  unless  the  power  under  "which  the  agent  sells  and 
conveys  expressly  requires  a  conveyance  without  covenants.3  A 
vendor  having  an  interest,  as  well  as  a  power,  may  be  compelled 
to  covenant  personally  to  the  extent  of  his  interest.4  But  while 

Wakeman  v.  Duchess  of  Rutland,  3  Ves.  233 ;  Cottrell  v.  Cotrell,  L.  R.,  2  Eq. 
330.  Mr.  Rawle  says  that  the  correct  test  of  the  application  of  the  rule 
requiring  cestuis  que  trust  to  give  covenants  would  be  the  extent  of  the  pur- 
chaser's liability  to  see  to  the  application  of  the  purchase  money.  This  means, 
it  is  presumed,  that  the  purchaser  could  not  require  covenants  from  the 
cestuis  que  trust  unless  he  was  obliged  to  see  that  the  purchase  money  was 
applied  to  the  purposes  of  the  trust,  and  thus  to  become  in  a  certain  sense 
liable  for  the  acts  of  the  cestuis  que  trust  and  of  the  trustee  in  making  the 
sale.  Rawle  Cov.  (5th  ed.)  p.  46,  n.  This  is  doubtless  true  in  all  juris- 
dictions in  which  the  purchaser  upon  a  sale  by  him  could  be  compelled  to 
give  no  more  than  limited  or  special  covenants.  But  it  is  not  clearly 
perceived  how  any  such  rule  can  obtain  in  those  courts  in  which  upon  such 
sale  he  would,  in  the  absence  of  any  special  agreement,  be  required  to  con- 
vey with  general  or  unlimited  covenants. 

1  Rawle  Covts.  (5th  ed.)  §  34,  citing  Crabtree  v.  Levings,  53  111.  526,  which, 
however,  appears  to  have  decided  no  more  than  that  a  purchaser  of  land  from 
one  who  has  not  the  legal  title  is  entitled  not  only  to  covenants  from  him  in 
whom  is  the  title,  but  also  from  the  person  from  whom  he  bought.  In 
Barnard  v.  Duncan,  38  Mo.  181;  90  Am.  Dec.  416,  the  English  rule  upon  this 
point  was  said  not  to  have  been  recognized  in  this  country. 

2Le  Roy  v.  Beard,  8  How.  (U.  S.)  451;  Taggart  v.  Stanbury,  2  McL. 
(U.  S.)  543.  Vanada  v.  Hopkins,  1  J.  J.  Marsh.  (Ky.)  293;  19  Am.  Dec. 
92;  Hedges  v.  Kerr,  4  Brown  (Ky.),  524,  528.  Bronson  v.  Coffin,  US  Mass. 
156;  11  Am.  Rep.  335.  Hunter  v.  Jameson,  6  Ired.  (N.  C.)  252,  case  of  ptr- 
sonal  property.  Peters  v.  Farnsworth,  15  Vt.  155;  11  Am.  Dec.  671.  An 
agent  authorized  to  convey  lands  of  the  commonwealth  by  quit-claim  deed 
does  not  exceed  his  authority  by  warranting  the  land  against  all  persons 
claiming  under  the  commonwealth.  Ward  v.  Bartholomew,  118  Mass.  161.  A 
power  of  attorney  which  authorizes  an  agent  to  convey  as  fully  and  amply  as 
the  principal  could,  authorizes  the  agent  to  convey  with  covenants  of  general 
warranty.  Taggart  v.  Stanbury,  2  McLean  (U.  S.)  543.  There  are  several 
cases  in  which  it  has  been  held  that  one  acting  under  a  power  has  no  author- 
ity to  bind  his  principal  with  covenants  for  title.  Nixon  v.  Hyserott,  5 
Johns.  (N.  Y.)  58;  Gibson  v.  Colt,  7  Johns.  (N.  Y.)  390;  Van  Eps.  v. 
Schenectady,  12  Johns.  (N.  Y.)  436,  443;  7  Am.  Dec,  330.  Howe  v.  Harring- 
ton, 3  C.  E.  Gr.  (N.  J.  Eq.)  496.  Mead  v.  Johnson,  3  Conn.  592;  Dodd  v. 
Seymour,  21  Conn.  480.  These  decisions  appear,  however,  to  have  been  largely 
influenced  by  the  New  York  and  New  England  rule,  that  an  agreement  to 
make  good  title,  or  a  sufficient  deed,  does  not  entitle  the  purchaser  to 
covenants  of  warranty. 

3  Bart.  Conv.  73.     Hare  v.  Surges,  4  Kay  &  Johns.  57. 

"Rucker  v.  Lowther,  6  Leigh    (Va.),  259. 


160  MAKKETABLE    TITLE    TO    REAL    ESTATE. 

a  fiduciary  grantor  cannot  be  1-04 ui red  to  convey  with  the  usual 
covenants,  if  he  should,  nevertheless,  execute  such  a  conveyance, 
he  will  be  ]x?rsoi>ally  bound  by  the  covenants,1  even  though  speci- 
fied to  l>e  *'  in  his  capacity  as  administrator,"  2  the  reasons  being 
that,  if  he  chooses  to  enhance  the  value  of  the  purchaser's  bargain 
by  undertaking  to  assure  the  title,  thereby  possibly  benefiting 
himself  in  an  enlargement  of  the  proceeds  of  the  sale,  he  must 

'Rill  on  Trustees  (3d  Am.  cd.),  413;  Rawle  Covts.  (5th  ed.)  §  36.  Execu- 
tors and  administrators:  Mitt-hell  v.  Hazen,  4  Conn.  495;  10  Am.  Dec.  160: 
Bcldcn  v.  Seymour,  8  Conn.  24;  21  Am.  Dec.  661.  Aven  v.  Beckom,  11  Ga.  1. 
Baxter  v.  Camp,  126  Ga.  354;  54  S.  E.  1036.  Simmer  v.  Williams,  8  Mass. 
162;  5  Am.  Dec,  83,  the  leading  case.  Mellen  v.  Boariroin,  13  Sm.  &  M. 
(Miss.)  100.  Codify  v.  Taylor,  3  Dev.  (X.  C.)  178.  Lockwood  v.  Gilson,  12 
Ohio,  529.  Kauffelt  v.  Leber,  9  Watts  &  S.  (Pa.)  93.  Mabie  v.  Matteson,  17 
Wis.  11,  diet.  Barnett  v.  Hughey,  (Ark.)  15  S.  W.  Rep.  464.  In  Sumner  v. 
Williams,  8  Mass.  201 ;  5  Am.  Dec.  83,  the  court  «aid  that  an  administrator 
or  executor  may  covenant  generally,  "  if  he  chooses  thus  to  excite  the  con- 
fidence of  purchasers  and  to  enlarge  the  proceeds  of  the  sale,"  and  will,  there- 
fore, be  personally  bound.  Such  a  contract  is  neither  unlawful  nor  incon- 
sistent. In  Merritt  v.  Hunt,  4  Ired.  Eq.  (N.  C.)  409,  will  be  found  an  instance 
where  an  executor  making  an  auction  sale  of  lands  offered  to  warrant  the 
title  himself  in  order  to  quiet  the  fears  of  intending  purchasers  as  to  the 
title.  But  a  covenant  by  an  executor  in  his  "  capacity  as  executor  and  not 
otherwise  "  has  been  held  not  to  bind  the  executor  personally.  Thayer  v. 
Wendell,  1  Gall.  (C.  C.)  37.  So,  also,  a  covenant  by  executors  that  they 
would  warrant  and  defend  "  as  executors  are  bound  by  law  to  do,"  they  not 
being  bound  hy  the  lex  rei  sit<r  to  warrant  at  all.  Day  v.  Browne,  2  Ohio. 
347.  A  covenant  by  executors  "  to  the  extent  of  their  assets  "  will  not  bind 
them  beyond  the  amount  of  assets  in  their  hands  at  the  time  of  eviction. 
Nicholas  v.  Jones,  3  A.  K.  Marsh.  (Ky.)  385;  Manifee  v.  Morrison,  1  Dana 
(Ky. ),  208.  In  Georgia  fiduciaries  are  not  personally  bound  by  their  cove- 
nants unless  the  intention  of  personal  liability  be  distinctly  expressed.  Code 
Ga.  2563,  2622;  Clark  v.  Whitehead,  47  Ga.  521;  Shneklett  r.  Ransom,  54 
Ga.  353.  Trvittres:  Bloom  v.  Wolf,  50  Iowa,  286,  288.  Klopp  v.  Moore,  6 
Kans.  30.  Graves  v.  Mattingly,  6  Bush  (-Ky.),  361.  Murphy  v.  Price,  48 
Mo.  247.  Duval  v.  Craig,  2  Wh.  (I*.  S.)  56;  Taylor  v.  Davis,  110  TT.  S.  330. 
Bnit  the  trustee  will  not  he  bound  if  it  clearly  appear  from  the  face  of  the 
deed  that  such  was  not  the  intention  of  the  parties.  Glenn  v.  Allison,  58 
Md.  527.  Agent*,  etc.:  Stinchfleld  v.  Little,  1  Greenl.  (Me.)  231;  10  Am. 
Dec.  65.  Duval  v.  Craig,  2  Wh.  (U.  8.)  56,  dirt.  Sterling  v.  Peet,  14  Conn. 
245.  Guardians:  Mason  v.  Caldwell,  5  Gil.  (111.)  19«;  48  Am.  Dec.  330. 
Porter  v.  Young.  35  la.  27.  Whiting  v.  Dewey,  15  Pick.  '(Ma«w.)  433.  Hoi- 
yoke  v.  Clarke.  54  N.  H.  578.  A  guardian  lining  the  words  "  grant,  bargain 
and  sell."  will  be  personally  Ixmnd  by  the  covenants  implied  therefrom.  Foote 
v.  Clark.  102  Mo.  3f>4;  17  S.  W.  Rep.  981. 

•Higley  v.  Smith.  1  D.  Chip.  (Vt.)  409:  12  Am.  Dec.  701. 


COVENANTS  WHICH  THE  PURCHASER  HAS  A  RIGHT  TO  DEMAND.       161 

take  the  consequences  of  his  contract;  and,  further,  that,  if  he 
were  not  liable,  the  grantee  would  have  no  remedy  upon  the  cove- 
nants.1 It  is  immaterial,  with  respect  to  the  liability  of  the 
grantor,  whether  the  deed  is  signed  by  him  in  his  individual  or 
in  his  fiduciary  capacity.2 

The  rule  that  general  covenants  for  title  cannot  be  required 
from  fiduciaries  and  others  who  convey  en  outer  droit  is  equi- 
table and  just,  so  far  as  it  is  intended  to  protect  such  a  grantor 
from  personal  liability  on  the  covenants.  At  the  same  time  it 
is  obvious  that  the  rule  may  result  in  much  hardship  to  the  buyer ; 
for,  as  will  hereafter  be  seen,  he  may  be  compelled  to  pay  the 
purchase  money,  though  he  has  been  evicted  from  the  estate,  if 
the  eviction  be  under  a  title  to  which  his  grantor's  covenants  do 
not  extend.3  It  has  been  held  that  if  it  plainly  appear  from  the 
face  of  the  instrument  that  the  fiduciary  did  not  intend  to  bind 
himself  personally  by  the  covenants,  he  will  not  be  bound;  in 
such*  a  case  the  plainly  expressed  intention  of  the  parties  controls.4 
Covenants  entered  into  by  a  fiduciary  cannot  bind  the  trust  estate 
or  the  cestuis  que  trust,  except,  of  course,  in  cases  where  he  is 
expressly  authorized  to  enter  into  covenants.5  A  power  to  a  trus- 
tee to  sell  real  estate  upon  such  terms  as  he  may  deem.'  expedient 
gives  him  no  authority  to  bind  the  estate  by  covenants.6  And  a 
statute  giving  an  administrator  power  to  convey  land,  gives  him, 

1  Donohue  v.  Emery,  9  Met.  (Mass.)  66.  See,  also,  Story  on- Agency,  §  263; 
Appleton  v.  Banks,  5  East.  148;  Knipe  v.  Palmer,  2  Wilson,  130;  Burrill  v. 
Jones,  3  B.  &  Ad.  47 ;  Norton  v.  Herron,  1  C.  &  P.  648.  If  the  covenants  of 
an  agent  are  sufficient  to  bind  the  principal,  the  agent  will  not  be  bound. 
Kent  v.  Chalfant,  7  Minn.  491. 

2Belden  v.  Seymour,  8  Conn.  24;  21    Am.  Dec.  661. 

3  Post,  ch.  27.     In  Texas  this  injustice  may  be  prevented,  so  far  as  deeds 
of  trust  to  secure  debts  are  concerned,  by  a  rule  which  permits  the  trustee  to 
bind  the  creator  of  the  trust  with  covenants  for  title.     Thurmond  v.  Brown- 
son,  69  Tex.  597;  6  S.  W.  Rep.  778. 

4  Glenn  v.  Allison,  58  Md.  527. 

50sborne  v.  McMillan,  5  Jones  L.  (1ST.  C.)  109.  Klopp  v.  Moore,  6  Kans. 
27,  30.  Kauffelt  v.  Leber,  9  Watts  &  S.  (Pa.)  93.  Lockwood  v.  Gilson,  12 
Ohio  St.  529,  diet.  A  bond  given  by  an  administrator  to  convey  land  of  his 
intestate  by  warranty  deed  is  unauthorized  and  will  not  bind  the  estate. 
Mason  v.  Ham,  36  Me.  573.  The  same  rule  applies  in  sales  of  personal  prop- 
erty. Worthy  v.  Johnson,  8  Ga.  236;  52  Am.  Dec.  399. 

•Welch  v.  Davis,  3  So.  Car.  110;   16  Am.  Rep.  630. 


162  MARKETABLE    TITLE    TO    REAL    ESTATE. 

by  implication,  no  power  to  bind  the  estate  by  covenants  for  title.1 
A  fiduciary,  conveying  with  general  covenants  for  title,  will  not 
only  be  personally  bound  thereby,  but  he  will  be  estopped  to  set 
up  afterwards  any  interest  in  the  premises  which  he  may  have 
had  at  the  time  of  the  conveyance.1 

§  70.  MINISTERIAL  GRANTORS.  Xo  covenants  of  any  kind 
can  be  required  from  mere  ministerial  grantors,  such  as  sheriffs, 
tax  collectors  and  others  who  are  made  by  law  the  mere  nwdia 
for  the  transfer  of  legal  title.*  Nor  can  any  covenant  be  implied 
from  the  language  of  the  conveyances  which  they  execute.4  If, 
however,  they  choose  to  insert  covenants  for  title,  they  will  be 
bound  by  them.  Thus  it  has  been  held  that  municipal  officers 
having  no  authority  to  bind  the  municipality  will  be  personally 
bound  by  covenants  for  title  inserted  in  a  conveyance  by  them- 
selves in  their  official  capacity.5  A  tax  collector  who  executes  a 
tax  deed  with  covenants  in  the  form  prescribed  by  statute  cannot 
be  held  personally  liable  on  those  covenants.'  Covenants  for  title 
cannot  be  required  from  the  crown,  nor  from  the  commonwealth, 
nor  the  federal  government.7  But  it  has  been  held  that  if  the 
commonwealth  convey  with  covenants  of  warranty,  she  will  be 
estopped  from  afterwards  setting  iip  a  claim  to  the  property.8 

'Osborne  v.  McMillan,  5  Jones  L.    (X.  Car.)    109. 

•Foster  v.  Young,  35  Iowa,  27.  Heard  v.  Hall,  16  Mass.  458.  See  post, 
"  Estoppel,"  ch.  21. 

•Friedly  v.  Scheetz,  9  S.  &  R.  (Pa.)  156;  11  Am.  Dec.  691.  Mitchell  v. 
Pinckney,  13  So.  Car.  203.  The  reason  is  that  the  rule  caveat  emptor  strictly 
applies  in  all  sales  by  persons  acting  in  a  ministerial  capacity.  See  anti. 
"  Caveat  Kmptor,"  ch.  5. 

4  Dow  v.  Lewis,  4  Gray  ( Mass. ) ,  468. 

•Sterling  v.  Peet,  14  Conn.  245. 

•Wilson-  v.  Cochran,  14  N.  H.  397.    Gibson  v.  Mussey,  11  Vt.  212. 

T2  Sugd.  Vend.  ch.  14  |  111;  Rawle  Govts.  (5th  ed.)  ft  3.  State  v. 
Crutchfield,  3  Head  (Tenn.),  113. 

•Oomm-'th  v.  Andre,  3  Pick.  (Mam.)  224;  Comm'th  v.  Pejepscut,  10  Mass. 
155. 


CHAPTER  VII. 

ABSTRACT  OF  TITLE. 
IN  GENERAL.      §    71. 
BOOT   OF  TITLE.      §    72. 
DUTY   TO   FURNISH  ABSTRACT.      §    73. 
PROPERTY   IN   THE   ABSTRACT.      §    74. 
TIME  IN  WHICH  TO  EXAMINE  THE   TITLE  AND  VERIFY  THE 

ABSTBACT.      §    75. 

SUMMARY     OF    THE    VARIOUS     SOURCES     OF    OBJECTIONS    TO 
TITLE.       §    76. 

Objections  which  appear  from  the  instruments  under  which  title  is 

claimed.      §    77. 

Objections   which   appear  from   the   public  records.      §   78. 
Objections  which  appear  upon  inquiries  in  pais.      §   7&. 

§  71.  IN  GENERAL.  In  the  English  practice  an  abstract  of 
title  appears  to  be  an  epitome  of  the  various  documents1  in  the 
possession  of  the  vendor  which  evidence  his  title,  such  as  deeds, 
wills,  and  affidavits  respecting  births,  marriages,  deaths,  pedi- 
grees, and  other  matters  materially  affecting  the  title.1  The 
unwillingness  of  the  vendor  to  allow  the  muniments  of  his  title 
to  go  out  of  his  possession  probably  gave  rise  to  the  custom  of 
making  abstracts  of  their  contents  for  the  leisurely  inspection  of 
the  purchaser.  In  America  an  abstract  has  been  defined  to  be 
"  a  statement  in  substance  of  what  appears  on  the  public  records 
affecting  the  title."  This  definition  is  perhaps  sufficiently  exact 
for  practical  purposes,  but  it  should  be  remembered  that  there 
may  be  facts  of  vital  importance  to  the  title  which  nowhere 
appear  of  record,  such  as  the  proofs  necessary  to  establish  title  by 
descent,  or  title  by  adverse  possession.  The  abstract  should,  of 
course  show  the  ability  of  the  vendor  to  establish  all  such  facts 
by  competent  evidence.  It  is  customary  in  some  localities  to  take 

*2  Sugd.  Vend.  (8th  ed.)  ch.  111.  Hollineld  v.  Landrum,  (Tex.  Civ.  App), 
71  S.  W.  979,  citing  the  text. 

2  Union  Safe  Dep.  Co.  v.  Chisholm,  33  111.  App.  647,  citing  Warvelle  Abst. 
3.  A  better  definition  is  said,  in  Sparkman  v.  Davenport,  (Tex.  Civ.  App.) 
163  S.  W.  410,  to  be  that  given  in  Hollifield  v.  Landrum,  supra,  namely, 
"  the  substance  of  what  appears  in  the  public  records  affecting  the  title,  and 
also  a  statement  in  substance  of  such  facts  as  do  not  appear  upon  the  records 
which  are  necessary  to  perfect  the  title."  So,  also,  Wright  v.  Bott,  (Tex. 
Civ.  App.)  163  S.  W.  301. 

[163] 


](>4  MAKKF.TABLK    TITLK    TO    HEAL    ESTATE. 

the  affidavits  of  persons  cognizant  of  such  facts,  and  cause  them 
to  be  recorded  among  the  land  records  of  the  county  where  the 
land  lies.  These  affidavits,  however,  are  merely  persuasive  to  the 
purchaser,  and  are  inadmissible  as  evidence  in  any  proceeding  in 
which  the  validity  of  the  title  is  attacked.1  In  the  American 
practice  the  abstract  shows  not  only  all  conveyances  affecting  the 
title  back  to  its  root,2  but  all  liens  or  incumbrances  of  record  which 
may  affect  the  estate  or  interest  which  the  purchaser  is  to  acquire, 
and  in  the  case  of  titles  derived  from  the  judgments  or  decrees 
of  courts  in  judicial  proceeding,  or  from  the  ministerial  acts  of 
officers  of  the  government,  the  existence  of  all  facts  without  wh4ch 
the  proceedings  or  acts  in  question  would  be  not  voidable  merely, 
but  absolutely  void.  In  fine,  the  abstract  is  the  outcome  of  a 
careful  and  accurate  examination  of  the  title,  and  should  show 
all  that  such  an  examination1  of  the  title  would  disclose.  It 
should  also  show  the  essential  parts  of  every  instrument  in  the 
vendor's  chain  of  title,  such  &s  the  names  of  the  parties,  descrip- 
tion of  the  property  conveyed  or  devised,  words  of  grant  or  devise, 
and  the  like.  The  manner  in-  which  an  abstract  is  prepared  is 
an  inquiry  not  within  the  scope  of  this  work.  Practical  sugges- 
tions and  forms  will  be  found  in  several  valuable  treatises  ujxm 
the  subject.*  According  to  the  English  practice,  the  vendor's 

'2  Sugd.  Vend.   (8th  ed.)    15   (417). 

*  A  c-ertificate  attached  to  a  paper  stating  that  it  is  a  "  full  and  true 
abstract  of  the  title,"  covers  suits  affecting  the  title  as  well  as  conveyances 
or  incumbranees.  Thomas  v.  Schee,  80  Iowa,  237;  45  N.  W.  Rep.  539. 

'American:  Warvelle  on  Abstracts,  1892;  Martindale  on  Abstracts,  1890. 
Knglith :  Preston  on  Abstracts;  2  Sugd.  Vend.  ch.  11.  A  case  of  want  of 
reasonable  care,  skill  and  diligence  in  preparing  an  abstract  may  be  seen  in 
Thomas  v.  Schee,  (Iowa)  45  X.  W.  Rep.  539.  Where  the  contract  requires  a 
good  title,  free  and  clear  of  all  incumbrances  as  shown  by  abstracts,  the 
abstract  must  contain  a  full  summary  of  all  grants,  conveyances,  wills, 
records,  and  judicial  proceedings  whereby  the  title  is  in  any  way  affected, 
and  all  incumbrances  and  liens  of  record,  and  whether  they  have  been 
released  or  not.  .  .  .  But  it  is  not  implied  that  the  abstract  shall  show 
matters  not  of  record,  nor  all  the  facts  and  circumstances  connected  with 
the  conveyance*  which  might  affect  the  title,  such,  for  example,  ax  possession, 
or  who  were  the  legal  heirs  of  a  deceased  owner  where  administration  was 
not  had  within  the  jurindiction,  and  matters  of  thnt  kind.  The  abstract  may 
be  supplemented  with  evidence  of  facts  and  circumstances  explanatory  of  the 
record  and  showing  good  title  free  of  incumbrances  in  the  vendor.  Atte- 
berry  v.  Blair.  244  111.  363,  91  X.  K.  475,  135  Am.  St.  Rep.  342.  The  abstract 


ABSTRACT    OF    TITLE.  165 

solicitor  prepares  the  abstract  from  the  muniments  of  title  in  his 
possession ;  and  he  is  held  criminally  responsible  if  he  knowingly 
suppresses  an  instrument  which  would  show  a  defect  in  the  title. 
It  is  the  duty  of  the  purchaser's  solicitor  to  compare  the  abstract 
with  the  originals,  and  if,  by  negligence,  he  fails  to  detect  a 
material  discrepancy  in  the  abstract,  he  will  be  responsible  to  the 
purchaser  for  any  loss  that  may  ensue.  "  This  examination," 
says  Lord  ST.  LEONARDS,  "  should  never  be  left  to  an  incompetent 
person.  In  the  case  of  wills,  particularly,  the  solicitor  is  bound 
to  read  through  the  whole  will.  Upon  him  devolves  the  duty  of 
seeing  that  the  evidence  is  what  it  purports  to  be,  and  that  the 
deeds  and  wills  are  duly  attested,  and  the  receipts  on  all  deeds 
properly  indorsed  and  signed.  An  estate  has  been-  lost  principally 
from  the  manner  in  which  the  receipt  was  indorsed,  which  would 
have  led  a  vigilant  purchaser  to  inquire  further,  when  he  would 
have  discovered  the  fraud  which  had  been  committed." 

An  original  abstract  of  title  showing  unsatisfied  liens  of  record 
may  be  received  in  evidence  in  the  action  by  the  purchaser  for 
breach  of  contract  in  failing  to  make  title.2 

The  abstract  does  not  show  a  marketable  title  unless  it  is 
brought  down  to  date  2a ;  and  its  sufficiency  is  to  be  determined  as 
of  the  time  fixed  by  the  parties  for  the  performance  of  the 
contract.* 

§  72.  BOOT  OF  TITLE.  Title  to  real  property  is  in  most  cases 
evidenced  by  written  instruments,  such  as  deeds  and  wills,  but  it  is 
possible  that  the  title  may  be  complete  though  altogether  unsup- 
ported by  documentary  evidence,  as  in  the  case  of  descent  from 
sole  heir  to  sole  heir  during  a  period  of  sixty  years  or  more.  And, 

should  show  whether  grantors  in  the  claim  of  title  were  married  or  single. 
Bragg  v.  Chilcote,  176  111.  App.  371.  Where  the  contract  requires  that  the 
abstract  shall  show  title  in  the  vendor  to  date,  and  the  abstract  furnished 
shows  title  in  a  -stranger,  the  objection  is  not  cured  by  a  subsequent  con- 
veyance to  the  vendor,  since  liens  upon  the  property  may  have  attached  in 
the  meanwhile  that  would  not  be  shown  by  the  abstract.  Drury  v.  Mickle- 
berry,  144  Mo.  App.  212,  129  S.  W.  237;  Union  Safe  Dep.  Co.  v.  Chrishelm, 
36  111.  App.  647. 

J2  Sugcl.  Vend.   (8th  Am.  ed.)    8   (411). 

3Fagan  v.  Davison,  2  Duer   (N.  Y.),  153. 

"aGant  v.  Dunlap,    (Tex.  Civ.  App.)    188  S.  W.  1020. 

2b  Denny  v.  Cox,  206  111.  App.  512. 


1GG  MAKKETABLE    TITLE    TO    KEAL    ESTATE. 

again,  there  may  be  titles  which,  with  respect  to  the  documents  or 
records  upon  which  they  rest,  are  apparently  perfect,  yet  by 
reason  of  some  matter  or  tiling  not  disclosed  by  these  evidences  of 
title  are  in  reality  worthless,  as  where  some  one  of  the  deeds  in 
the  chain  of  title  is  a  forgery,  or  some  event  has  transpired  by 
which  the  estate  of  the  present  occupant  has  determined;  e.  g.,  the 
death  of  a  reslui  (jue  vie,  when  the  estate  which  the  vendor  pro- 
poses to  sell  is  held  for  the  life  of  another  only.  The  rule 
caveat  eniftlor  requires  the  purchaser  to  inquire  into  all  these 
matters,  and  examine  all  of  the  vendor's  evidences  of  title,  whether 
they  are  preserved  in  the  shape  of  documents  and  public  records 
or  consist  simply  of  facts  to  be  ascertained  by  inquiries  in  pais. 
This  examination  he  must  carry  back  until  he  arrives  at  what  is 
commonly  called  the  "  root  of  title." 

The  root  of  title  is  title  existing  in  some  one,  through  whom 
the  vendor  claims,  at  a  time  in  the  past  sufficiently  remote  to 
bur,  by  force  of  the  Statute  of  Limitations  or  by  the  lapse  of 
time,  all  adverse  claims  to  the  premises  theretofore  accruing,  or 
which  may  accrue  after  tire  removal  of  personal  disabilities  of 
possible  adverse  claimants.  The  general  rule  is  that  the  purchaser 
may  require  the  vendor  to  show  a  title  free  from  defects  and 
incumbrances  for  a  length  of  time  that  would  bar  any  adverse 
claim  existing  at  the  beginning  of  that  period,  including  all  sav- 
ings in  favor  of  persons  under  disabilities.1  This  jwriod  was,  in 
Knglaml,  fixed  at  sixty  years  until  within  a  comparatively  recent 
date,  when  it  was  changed  by  statute  to  forty  years.2  In  the 
older  American  States  the  English  practice  of  showing  title  for 
sixty  years  back  has  been  very  generally  followed.  The  statu- 
tory periods  of  limitation  are,  as  a  general  rule  in  those  States, 
too  short  to  afford  absolute  protection  to  a  purchaser.  In  every 
case  in  which  there  is  reasonable  ground  to  believe  that  there  are 
adverse  interests  against  which  the  usual  period  to  which  the 
title  is  carried  back  would  not  prove  a  bar,  the  purchaser  may 
require  that  a  title  be  shown  lieyond  that  |>criod ;  for  example,  in 

1  William*  Rral  Prop.  450;  1  Su^cl.  Vend.  (8th  e<k)  oh.  10;  Warvelle  Abut. 
(MO;  Martindale  Al»t.  ft  18;  Pout.  "  Dotilitful  Titles,"  {  202.  Paine  v.  Mill.-t. 
fi  Yen.  340.  Cooper  v.  Kmery.  I  Phil.  338.  Blackburn  v.  Smith,  2  Exch.  783. 
Moulton  v.  Kdmnndft,  1  DP  <;..  F.  &  J.  240. 

'1  Sugd.  Vend.   (8th  Am.  o.l.i   551    (306). 


ABSTRACT    OF    TITLE.  167 

the  case  of  a  right  outstanding  in  a  remainderman  or  in  a  person 
under  disabilities.1 

In  most  of -the  American  States  west  of  the  Alleghanies,  where 
all  public  grants  of  land  to  individuals  are  comparatively  recent, 
it  is  customary  to  carry  the  title  back  to  its  emanation  from  the 
government,  and  for  the  purchaser,  when  entitled  to  an  abstract, 
to  insist  upon  one  commencing  with  that  date.2  It  is  apprehended, 
however,  that  even  in  those  States  the  purchaser  can  require  the 
vendor  to  show  a  title  at  no  more  remote  period  than  one  sufficient 
to  bar  all  -adverse  claimants,  including  those  under  personal  disa- 
bilities and  remaindermen,  unless  there  be  something  in  the  case 
to  take  it  out  of  the  general  rule  that  a  title  founded  on  adverse 
possession  for  the  statutory  period  of  limitation  is  marketable.3 

§  73.  DUTY  TO  FURNISH  ABSTRACT.  In  England  the  duty 
devolves  upon  the  vendor  to  furnish  an  abstract  of  title  to  the  pur- 
chaser irrespective  of  any  agreement  upon  the  subject,4  the  reason 
being  that  the  purchaser,  in  the  absence  of  any  record  of  the  ven- 
dor's muniments  of  title,  must  be  given  an  opportunity  to  inspect 
them  or  their  equivalents,  unless  the  purchaser  has  agreed  to  take 
the  title,  such  as  it  is,  or,  as  it  is  .technically  expressed,  "  without 
requiring  the  vendor  to  produce  his  title."  But  it  is  usual  in  that 
country  to  insert  in  the  contract  or  common  conditions  of  sale  a 
provision  that  the  vendor  shall,  within  a  specified  time,  prepare 
at  his  own  expense  and  deliver  to  the  purchaser  an  abstract  of 
the  title.5  If  there  is  any  doubt  as  to  the  vendor's  ability  to 
deliver  a  sufficient  abstract  -by  the  specified  time,  it  is  said  to  be 
better  to  omit  this  provision,  the  reason  being  that  if  the  vendor 
fail  to  deliver  the  abstract  within  the  time  in  which  he  would 
be  required  to  furnish  the  same  independently  of  any  agreement 
upon  the  subject,  or  if,  when  delivered,  it  be  imperfect,  the 
purchaser  will  be  absolved  from  his  obligation  to  make  objections 

M  Sugd.  Vend.  (8th.  Am.  ed.)  551   (366). 

aWarvelle  Abst.   145.     McCarty  v.  Helbling,  73   Oreg.   356;    144  Pac.  499. 

•  In  the  city  of  Washington,  in  the  District  of  Columbia,  it  is  customary  to 

carry  the  examination  back  to  the  conveyances  by  the  original  proprietors 

of  the  land  on  which  the  city  stands  to  the  government,  now  a  period  of 

about  100  years,  or   eight  times  that  of  the  Statute  of  Limitations. 

3  Post,  ch.  31;   Martindale  Abst.   §   17. 

42  Sugd.  Vend.   (8th.  ed.)   29   (428);  Dart.  Vend.  (5th.  ed.)   125. 

5  Dart  Vend.  &  Purch.    (5th.  ed.)    125. 


108  MAHKETABLE    TITLE    TO    HEAL    ESTATE. 

within  a  limited  time.1  In  America  the  rule  obliging  the  vendor 
to  furnish  an  abstract  has  been  announced  in  some  cases,2  though 
the  same  reasons  for  it  do  not  generally  exist.  Here  the  pur- 
chaser may  always,  as  a  general  rule,  ascertain  the  state  of  his 
vendor's  title  by  •an  examination  of  the  public  records,  so  that 
the  question  who  shall  furnish  the  abstract  of  title  is  no  more 
in  ordinary  cases  than  the  question  who  shall  bear  the  expense 
of  examining  the  title  and  preparing  the  abstract.  Accordingly 
it  has  been  he-Id  in  several  cases  that  in  the  absence  of  any  agree- 
ment upon  the  subject,  no  duty  devolved  upon  the  vendor  to 
supply  the  purchaser  with  an  abstract  of  the  title.3  It  seems, 

1  Southby  v.  Hutt,  2  Myl.  &  C.  207 ;  Sherwin  v.  Shakespear,  5  De  G.,  M.  & 
G.  517;  Upperton  v.  Nicholson,  L.  R.,  6  Ch.  App.  436;  Blacklow  v.  Laws,  2 
Ha.  40. 

'Chapman  v.  Lee,  55  Ala.  616.  Mart.  Abet.  9  citing  Connolly  v.  Pearce,  7 
Wend.  (N.  Y.)  131,  and  Carpenter  v.  Brown,  6  Barb.  (N.  Y.)  149;  Brewer  v. 
Fox,  62  111.  609. 

I-:.; ~i.. i,  v.  Montgomery,  90  Cal.  313;  27  Pac.  Rep.  280,  citing  Espy  v. 
Anderson,  14  Pa.  St.  312;  Carr  v.  Roach,  2  Duer  (N.  Y.),  20.  See,  abo, 
Bolton  v.  Branch,  22  Ark.  435;  Knox  v.  McMurray,  159  Iowa  171;  140  N.  W. 
652;  Thompson  v.  Robinson,  65  W.  Va.  506,  64  S.  E.  718;  Turn  Verein  v. 
Kionka,  255  111.  392;  99  N.  E.  684;  43  L.  R.  A.  (N.  S.)  44;  Warvelle  Abst. 
5  10.  In  Easton  v.  Montgomery,  supra,  it  was  said  by  HARRISON,  J. : 
"  Ordinarily  parties  entering  into  an  executory  agreement  for  the  purchase 
and  Hiile  of  real  estate  make  provisions  therein  specifying  the  time  allowed 
for  examination  of  the  title,  for  furnishing  abstract,  making  report  of  defect - 
and  objections,  specifying  the  time  within  which  the  vendor  may  thereafter 
make  his  title  good,  and  the  character  of  the  convex ance  to  be  executed  by 
him;  but,  in  the  haste  attendant  upon  the  excitement  of  a  'boom,'  the.-i- 
formal  requisite)}  arc  frequently  omitted,  and  the  construction  of  the  con- 
tract is  left  to  implication  or  established  rules.  It  is  evident  from  the  pro- 
vision inserted  in  the  memorandum,  'title  to  prove  good  or  no  sale,  and  iln- 
deposit  to  be  returned,'  that  it  was  contemplated  by  the  parties  that  an 
examination  of  the  title  was  to  be  made  on  In-half  of  the  plaintiff  (purchaser) 
and  that  upon  such  examination  it  might  be  found  defective.  As  no  time  wan 
specified  within  which  such  examination  should  be  made,  a  reasonable  time 
therefor  wan  implied.  The  parties  did  not  agree  that  the  condition  of  the 
title  should  be  ascertained  from  any  particular  abstract,  or  from  an  abstract 
to  be  furnished  by  the  vendor,  and  in  this  respect  the  case  is  di-t  in^ui-linl 
from  Smith  v.  Taylor,  82  Cal.  533;  23  Pac.  Rep.  217,  and  from  Boaa  v. 
Farrington,  85  Cal.  535;  24  Pac.  Rep.  787.  The  agreement  being  silent  upon 
this  point,  it  was  iii.iiml.ini  upon  the  plaintiff  to  provide  the  abstract  and 
to  satisfy  himself  an  to  the  condition  of  the  title.  *  *  *  If,  upon  .-u<-li 
examination,  it  appeared  to  him  that  the  title  was  defective,  it  then  became 
his  duty  to  report  to  the  vendor  the  particulars  wherein  such  defects  were 


ABSTEACT    OF   TITLE.  169 

however,  to  be  the  opinion  of  several  text  writers  that  a  different 
rule  applies  as  between  mortgagor  and  mortgagee,  and  that  the 
duty  devolves  upon  the  mortgagor  to  bear  the  expenses  of  search- 
ing the  title,  upon  the  ground  that  the  mortgagee  is  entitled  to 
the  full  amount  of  his  loan  and  interest,  without  discount  for 
expenses  incurred  in  preparing  the  security  and  ascertaining  its 
value.1 

If  the  contract  does  not  fix  the  time  in  which  the  abstract  is 
to  be  furnished,  it  must  be  furnished  within  a  reasonable  time.1* 
If  the  vendor  agrees  to  furnish  an  abstract  within  a  specified 
time,  but  fails  so  to  do,  the  purchaser  cannot  be  required  to  extend 
the  time;  he  may  rescind  the  contract  and  recover  his  deposit.2 
Where  the  contract  provides  that  an  abstract  shall  be  furnished 
within  a  reasonable  time,  what  is  a  reasonable  time  depends  upon 
the  circumstances  of  each  case.3  And  he  cannot  put  the  purchaser 
in  default  until  he  has  furnished  the  abstract.3*  An  agreement 
to  furnish  an  abstract  is  sufficiently  complied  with  by  notifying 
the  vendee  where  it  can  be  found,  if  it  be  accessible  to  the  vendee, 
and  if  he  raises  no  objection  at  the  time.4  An  objection  grounded 
on  the  failure  to  furnish  an  abstract  within  a  specified  time  is 
waived  by  subsequent  acceptance  of  the  abstract  without  objec- 
tion, and  cannot  be  urged  by  the  purchaser  as  an  excuse  for  his 
failure  to  tender  the  purchase-money  in  proper  time.5  It  is 
waived  also  by  the  purchaser's  insistence  on  the  correction  of  a 

claimed  to  exist,  and,  in  the  absence  of  any  time  fixed  by  the  agreement, 
within  which  the  vendor  should  remove  these  defects  or  satisfy  his  objections, 
a  reasonable  time  would  be  allowed  therefor.  The  burden  is  on  the  vendee 
to  point  out  the  defects  in  the  title."  In  the  case  of  Taylor  v.  Williams,  45 
Mo.  80,  it  was  held  that  an  agreement  of  sale,  containing  the  provision  "  title 
to  be  satisfactory  and  a  warranty  deed  given,"  did  not  impose  on  the  vendor 
the  duty  of  furnishing  an  abstract  of  title.  So,  also,  an  agreement  to  "make 
good  title  and  give  a  warranty  deed."  Tapp  v.  Xock,  89  Ky.  414 ;  12  S.  W. 
Rep.  713. 

*Mart.  on  Abst.  9,  citing  Willard  on  Real  Est.  &  Conv.  559. 

'aRunnells  v.  Pruitt,   (Tex.  Civ.  App.)  204  S.  W.  1017. 

2  Williams  v.  Daly,   33  111.  App.  454;   Howe  v.  Hutchison,  105  111.  501; 
Des  Moines,  etc.,  Real  Est.  Co.  v.  Beale,  78  111.  App.  40. 

3  Jackson  v.  ConKn,  50  111.  App.  538. 

"aMatheson  v.  Live  Stock  Co.,   (Tex.  Civ.  App.)    176  S.  W.  734. 

4  Papin  v.  Goodrich,  103  111.  86. 

5Ky.  Distilleries,  etc.,  Co.  v.  Warwick  Co.,  109  Fed.  28-;   48  C.  C.  A.  363. 
Compare,  Gant  v.  Dunlap,   (Tex.  Civ.  App.)    188  S.  W.  1020. 


170  MAKKETABLE    TITLE    TO    REAL    ESTATE. 

mistake  in  the  abstract  after  the  expiration  of  the  prescribed 
time.1  If  the  vendor  agrees  to  furnish  an  abstract,  and  furnishes 
one  which  shows  a  defective  title,  the  purchaser  may  rescind  the 
contract  and  recover  the  money  paid,  though  the  vendor  had  a 
good  title  as  a  matter  of  fact.2  Where  the  vendor  agrees  to  furnish 
an  abstract  within  a  specified  time,  which  is  not  done,  and  the 
purchaser  thereafter  treats  the  default  as  immaterial  and  con- 
tinues his  payments  under  the  contract,  he  will  be  deemed  to  have 
waived  the  delivery  of  the  abstract,  and  cannot  recover  his  deposit.8 
In  a  case  in  which  time  was  not  of  the  essence  of  the  contract,  a 
vendor  who  agreed  to  furnish  by  a  specified  time  an  abstract 
showing  a  perfect  title,  was  allowed  to  tender  the  abstract  at 
the  hearing  of  a  suit  subsequently  brought  by  him  for  specific 
performance.4 

In  some  localities  it  seems  that  it  is  common  to  treat  an  abstract 
of  title  as  merchantable  or  unmerchantable,  without  regard  to  the 
nature  of  the  title  it  discloses.5  The  value  of  the  abstract  depends, 
of  course,  upon  the  skill  with  which  it  is  prepared  and  upon  the 
reputation  and  ability  of  the  compiler.  An  agreement  to  furnish 
an  abstract  would  seem  necessarily  to  imply  that  the  document 
should  be  thorough  and  complete,  and  should  be  made  by  a  com- 
l>etent  person. 

§  74.  PROPERTY  IN  THE  ABSTRACT.  The  purchaser  has  a 
trm|>orary  right  of  property  in  the  abstract  while  the  sale  is  being 
negotiated,  and  the  absolute  ownership  if  the  sale  be  consum- 
mated.' As  between  mortgagor  and  mortgagee,  it  has  been  held 
that  an  abstract  furnished  by  the  mortgagor  to  asvsist  the  mort- 

'Kvann  v.  Orchard  Co..  103  Ark.  212,  146  S.  W.  511. 

'Boa*  v.  Harrington,  85  Cal.  536;  24  Par.  Rep.  787. 

•  McAlpine  v.  Reicheneker,  56  Kan.  100;  42  Par.  339. 

•Cute*  v.  Parmly,  93  Win.  294;  66  N.  W.  253;  67  N.  VV.  739. 

1  \Varvelle  Abstract*,  ch.  1,  f  7.  Proof  by  a  vendor  that  he  furnifthed  an 
alwtract  made  by  the  recorder  of  deeds,  together  with  the  testimony  of  a 
number  of  real  entate  de«lern  that  abstract*  furnished  by  mich  recorder  were 
merchantable,  establishes,  jtrima  facir,  the  delivery  of  n  "merchantable" 
abntrmt.  Harper  v.  Tidholm,  155  111.  370;  40  X.  E.  Rep.  575. 

•CoppiiiKcr  on  Title  Deed*,  Lond.  1875;  Mart.  Ahnt.  II.  Thin  h  the 
l.nj/h-li  rule,  and  there  seem*  to  be  nit  reason  why  it  should  not  apply  in  thin 
country.  KotK-rt*  v.  Wyatt,  2  Taunt.  288;  Langlow  v.  Cox,  1  Chit.  98.  2 
Sugd.  Vend.  428,  429;  Warvclle  Abst.  11.  Chapman  v.  Lee,  55  Ala.  616. 


ABSTBACT     OF     TITLE.  171 

gagee  in  examining  the  title  became  a  part  of  the  security  for  the 
loan,  and  might  be  retained  by  the  mortgagee  until  the  mortgage 

was  discharged.1 

a  75   TIME  IN  WHICH  TO  EXAMINE  THE  TITLE  AND  VERIFY 

THE  ABSTRACT.  The  contract  of  sale  usually  specifies  a  time  in 
which  the  purchaser  may  examine  the  title  before  completing  the 
purchase.  If  no  time  be  specified,  he  will  be  entitled  to  a  reason- 
able time  for  that  purpose,  but  cannot  keep  the  contract  open  in- 
definitely so  as  to  avail  himself  of  a  rise  in  the  value  of  the  prop- 
erty or  escape  loss  in  case  of  depreciation.2  He  cannot  be  required 
to  pay  the  purchase  money  before  he  has  examined  the  abstract, 
unless  he  has  expressly  stipulated  so  to  do.3  It  has  been  held  that 
if  the  contract  provide  that  the  purchaser  shall  be  furnished  an 
abstract  of  title,  and  shall  have  a  specified  time  in  which  to  ex- 
amine the  title  and  pay  the  purchase  money,  the  purchaser  must 
determine  in  that  time  whether  he  will  take  the  title,  and  that  he 
cannot  tender  the  purchase  money  after  that  time,  even  though 
no  abstract  of  the  title  was  furnished.4 

The  purchaser  is  entitled  to  a  reasonable  time  within  which  to 
determine  by  investigation  the  validity  of  apparent  liens  disclosed 
by  the  record.5  After  the  purchaser  has  examined  the  abstract  or 

1Holm  v.  Wust,  11  Abb.  Pr.  (N.  S.)  (N.  Y.)  1113.  In  Williams  v.  Daly,  33 
111.  App.  454,  it  seems  to  have  been  held  that  an  abstract  made  by  taking  a 
copy  in  writing  from  a  former  abstract  made  by  another  office,  taking  a 
letter-press  copy  from  that  copy  and,  from  the  letter-press  copy,  copying 
again,  was  not  such  an  abstract  as  the  purchaser  was  entitled  to  require.  As 
to  the  validity  of  copies  of  abstracts  generally,  see  the  observations  of  Mr. 
Warvelle  in  his  work  on  Vendors,  vol.  1,  p.  295. 

"Hoyt  v.  Tuxbury,  70  111.  331. 

3Penna  Min.  Co.  v.  Thomas,  204  Pa.  225;  54  Atl.  101. 

4Kelsey  v.  Crowther,    (Utah)    27  Pac.  Rep.  695. 

5  Allen  v.  Atkinson,  21  Mich.  361,  COOLEY,  J.,  saying  that  when  the  pur- 
chaser showed  an  apparent  incumbrance  of  record,  the  most  that  the  vendor 
could  insist  upon  "  is  that  he  shall  satisfy  himself  within  a  reasonable  time 
whether  the  apparent  incumbrance  is  a  valid  one  or  not.  It  would  be  out  of 
all  reason  to  insist  that  the  vendee,  at  his  peril,  should  take  a  title  appar- 
ently Encumbered,  and  that  the  vendor  should  have  a  right  to  demand  the 
immediate  performance  of  the  contract  by  the  vendee,  when  apparently  his 
own  deed  would  be  insufficient  to  give  the  complete  title  he  had  agreed  to 
convey.  Xor  do  I  think  thirty  days  was  an  unreasonable  time  to  take  for 
this  purpose  when  the  mortgagee  resided  at  a  distance,  and  when  it  does  not 
appear  that  the  situation  of  the  parties  had  in  the  meantime  been  changed, 
or  that  anything  had  occurred  to  render  the  contract  less  fair  and  equal 
than  it  was  when  entered  into. 


172  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

investigated  the  title  in  the  time  allowed  for  <hat  purpose,  it  is  his 
duty  to  point  out  or  imike  known  his  objections  to  the  title,  if  any, 
so  as  to  give  the  vendor  an  opportunity  to  remove  them.1  This  rule 
has  been  held  not  to  apply  where  the  defect  is  one  that  cannot,  in 
the  nature  of  things,  be  removed  before  the  time  fixed  for  complet- 
ing the  contract.  Thus,  where  the  objection  was  lhat  the  abstract 
showed  no  authority  in  the  officers  of  a  corporation  to  execute  a 
deed  through  which  the  vendor  derived  title,  and  it  appeared  that 
the  corporation  had  been  dissolved  since  the  deed  was  executed,  it 
was  held  that  the  purchaser  was  not  in  default  in  failing  to  raise 
that  objection  before  the  day  fixed1  for  completing  the  contract.2 
Where  the  conditions  of  sale  provide  that  the  purchaser  shall  havo 
a  specified  time  in  which  to  examine  title,  he  may,  of  course,  at 
the  expiration  of  that  time,  abandon  the  purchase,  if  he  finds-  that 
the  vendor  has  not  such  a  title  as  the  contract  requires.8  And  even 
though,  at  the  expiration  of  the  specified  time,  the  purchaser  makes 
no  objection  to  the  title,  the  vendor  can  maintain  no  aeiion-  on  the 
contract  if  his  title  is  not  such  as  the  purchaser  may  demand.4 
Hut  the  purchaser  cannot,  at  the  expiration  of  that  time,  recover 
back  his  deposit  unless  he  has  notified  the  vendor  thut  the  title  i« 
unsatisfactory,  and  that  he  intends  to  rescind.5  The  purchaser 
must  make  all  of  his  objections  at  one  time,  and  within  a  reason- 
able time  after  the  abstract  is  furnished.  He  cannot  induce  the 
vendor  to  spend  money  in  removing  objections,  and  then*  raise 
others  which  cannot  be  removed.'  If  the  abstract,  when  furnished, 

1  Pont,  ch.  32.  Easion  v.  Montgomery,  QD  Cal.  307 ;  27  Pac.  Rep.  280. 
Goodell  v.  Sanford,  (Mont.)  77  Pac.  522.  Compare  Lessenich  v.  Sellers,  119 
Iowa,  314;  93  N.  W.  348. 

•McCronkey  v.  Ladd,  (Cal.)  28  Pac.  Rep.  218.  Hennig  v.  Smith,  151 
N.  Y.  Supp.  444. 

•Mead  v.  Fox,  <J  Cush.   (Mass.)    199. 

« Packard  v.  -Tuber,   7   Gray    (Mass.)    529. 

*  Amhrnon  v.  Stranburger.  92  Cal.  38-;  27  Pac.  Rep.  1095,  and  cases  cited. 

•Polk  v.  Stevenson.  71  Iowa,  27S.  Defects  in  the  title  not  pointed  out  in 
the  abstract  within  the  time  specified  by  the  contract,  are  to  be  treated-  a* 
waived.  Woodward  v.  McCollum,  16  N.  D.  42,  111  N.  W.  623;  Sage  Land  & 
Imp.  Co.  v.  Mc-Cowen,  30  Cal.  App.  126,  157  Pac.  244;  Lieber  v.  Nicholson, 
(Tex.)  206  S.  W.  512;  Davenport  v.  Sparkman,  (Tex.)  2P8  S.  W.  658.  After 
having  pointed  out  specific  objections  to  the  title,  the  ^iH-chaner  cannot, 
when  Mied  for  breach  of  1m  contract,  urge  Additional  objections  to  the  title 
which  the  vendor  hat*  had  no  opport unity  to  «meet,  and  which  were  known 
to  the  purchaser  at  the  time  the  original  objections  were  made.  Cowdrey  V. 


ABSTRACT     OF     TITLE.  173 

is  not  such,  as  to  form  and  fullness,  as  the  purchaser  is  entitled 
by  the  contract  to  require,  he  must  promptly  make  his  objection. 
He  cannot  accept  the  abstract,  keep  it  until  the  time  allowed  the 
vendor  in  which  to  furnish  an  abstract  has  passed,  and  then  insist 
upon  its  insufficiency  as  a  breach  of  the  contract.1 

Where  the  contract  provides  for  time  in  which  to  examine  the 
title,  the  purchaser  will  be  presumed  to  have  investigated  the 
title,  to  have  examined  every  deed  or  instrument  forming  part  of 
it,  especially  if  recorded  and  to  have  known  every  fact  disclosed 
by  the  record  or  the  existence  of  which  was  suggested  by  the 
record.2 

A  provision  in-  the  contract  that  the  purchaser  shall  give  written 
notice  of  the  acceptance  of  the  abstract,  is  waived  by  the  accept- 
ance of  verbal  notice  without  objection.3  If  the  purchaser,  after 
having  the  title  examined,  accepts  it  and  pays  part  'of  the  purchase 
money,  he  cannot  afterwards  rescind  the  contract  and  recover 
back  his  payment  on  the  ground  of  defects  in  the  title.4  If  the 
abstract  be  returned  for  removal  of  objections,  the  purchaser, 
having  waited  a  reasonable  time  for  a  satisfactory  abstract,  is 
justified  in  refusing  to  perform.5 

§  76.  SUMMARY  OF  THE  PRINCIPAL  SOURCES  OF  OBJECTIONS 
TO  TITLE.  Gteneral  Observations.  We  shall  elsewhere  consider  in 
this  work  what  circumstances  render  a  title  so  doubtful  that  it  will 
not  be  forced  upon  a  purchaser.6  It  is  our  purpose  here  merely 

Greenlee,  126  Ga.  386,  55  S.  E.  918.  While,  in  case  of  defects  not  pointed 
out  within  the  required  time,  specific  performance  by  the  purchaser  might 
not  be  decreed,  yet  being  himself  in  default  in  the  respect  mentioned  he  is 
not  entitled  to  recover  back  the  purchase  money,  iieber  v.  Nicholson,  (Tex.) 
206  S.  W.  512.  It  has  been  held  that  the  purchaser  will  not  be  precluded 
from  further  objections  to  the  title  if,  in  the  meanwhile,  the  situation  of 
the  vendor  remains  unchanged.  Linscott  v.  Moseman,  84  Kan.  541,  114 
Pac.  1088. 

'Moot  v.  Business  Men's  Assn.,  157  N.  Y.  201;  52  N.  E.  Rep.  1.  In  this 
case  the  contract  provided  for  an  abstract  "  truly  showing  the  condition  of 
the  titte."  The  document  furnished  was  a  mere  abstract  of  the  indexes  of 
the  records  in  the  county  clerk's  office,  -and  did  not  show  certain  objections 
to  the  title,  which,  however,  were  of  an  unimportant  kind,  and  which  the 
court  held  the  vendor  had  the  right  to  remove. 

2  Moot  v.  Business  Men's  Assn.,  157  N.  Y.  201,  52  N.  E.  1. 

3  Domestic  Bidg.  Assn.  v.  Guadiano,  195  111.  222,  63  N.  E.  98. 

4  Warner  v.  Hamill,  134  Iowa  279,  HI.  N.  W.  93=9. 
"Coonrod  v.  Sttfdebaker,  53  Wash.  32,  101  Pac.  489. 
•Post,  ch.  31. 


174  MARKETABLE    T1T*E    TO    REAL    ESTATE. 

to  pcint  out  the  several  sources  whence  it  may  appear  that  a  title 
i.s  absolutely  bad. 

An  absolutely  bad  title  to  real  property,  as  between  vendor  and 
purchaser,  consists  in  the  want  of  any  one  of  the  elements  of  a  good 
title.  These,  as  has  been  shown,  consist  in  the  rightful  ownership 
of  the  property,  the  rightful  possession  thereof,  the  appropriate 
legal  evidences  of  rightful  ownership  and  the.  freedom  of  the 
estate  from  liens  or  incumbrances  of  any  kind.1  A  man  may  be 
the  rightful  owner  of  an  estate,  but  if  he  is  out  of  possession  his 
title  is  bad,  so  far  as  a  purchaser  from  him  is  concerned ;  *  and, 
of  course  if  he  be  not  the  rightful  owner,  his  title  is  bad  without 
reference  to  the  question  of  possession*  So,  also,  if  he  be  the 
rightful  owner  but  is  wrongfully  in  possession,  as  where  he  com- 
mits a  breach  of  the  peace  in  ejecting  an  occupant  of  the  premises. 
But  he  may  be  both  the  rightful  owner  and  rightfully,  in  posses- 
sion under  a  deed  sufficient  to  pass  the  legal  title,  and  yet  his 
title  may  not  be  such  as  a  purchaser  may  require.  For  example, 
the  deed  under  which  he  holds  may  not  have  been  admitted  to 
record,  or  may  have  been  admitted  to  record  upon  an  insufficient 
certificate  of  acknowledgment.  The  title  is  also  absolutely  bad 
not  only  where  it  is  open  to  attack  after  it  has  passed  to  the  pur- 
chaser, but  also  wherever  the  purchaser  must  institute  any  pro- 
ceeding at  law  or  in  equity  to  secure  himself  in  the  enjoyment  of 
the  estate.  The  purchaser  will  also  be  entitled  to  his  action  if  the 
vendor  have  not  the  quantity  of  estate  which  he  has  agreed  to 
sell  and  convey.  Thus,  he  may  have  only  a  life  estate,  or  an  estate 
for  years,  or  an  estate  upon  condition,  and  his  title  to  the  same 
may  be  clear  and  unimpeachable,  yet  if  by  the  contract  the  pur- 
chaser is  entitled  to  a  conveyance  of  the  fee  simple,  a  breach 
results,  and  an  action  for  damages  accrues. 

With  respect  to  what  particular  facts  or  circumstances  constitute 
a  good  legal  title,  or  demonstrate  a  complete  want  of  title,  it  must 
suffice  to  say  that  the  inquiry  is  impracticable  here,  since  the 
answer  would  involve  a  review  of  the  whole  body  of  the  law  of 
real  property.  An  infinite  variety  of  facts  and  circumstances 
enter  into  the  composition  of  every  title,  and  the  existence  or 
non-rxistenee  of  any  one  of  these  may  be  fatal  to  the  title.  Hence, 

'Ante,  p.  2. 

M  Hupil.  V*ml.   (*th.  M|.)    .137.  .r>7fl. 


ABSTRACT    OF    TITLE.  175 

it  has  been  said  by  a  great  judge  that  there  is  no  such  thing  as  a 
mathematical  certainty  of  a  good  title.1  But  the  state  of  every 
title  is  capable  of  being  ascertained  or  established  with  a  reason- 
able degree  of  certainty.  The  policy  of  the  law  is  that  as  far 
as  possible  title  to  lands,  to  the  extent  that  it  depends  upon  the 
fact  of  alienation  or  transfer  from  one  person  to  another,  shall 
be  evidenced  by  written  instruments  of  a  solemn  kind,  such  as 
deeds,  wills,  judgments  or  decrees.  Also,  that  these  instruments 
shall  be  made  matters  of  public  record  open  to  the  inspection  of 
the  whole  world;  and  that  certain  of  them,  that  is,  deeds,  shall 
be  void  for  certain  purposes  if  not  entered,  or  not  lawfully  entered, 
upon  the  public  record.  Also,  that  certain  matters  collateral  to 
the  title,  such  as  liens,  charge  or  incumbrances  upon  the  estate, 
shall  likewise  be  entered  of  record,  so  as  to  bind  subsequent 
purchasers  for  value  and  without  -actual  notice  of  their  existence. 
Hence,  it  follows  that  the  sufficiency  of  the  title  is,  in  a  great 
measure,  to  be  determined  by  an  inspection  of  the  public  records, 
and  of  instruments  which  evidence  the  vendor's  title.  Indeed, 
the  great  majority  of  objections  to  title  that  are  commonly  made 
spring  from  these  sources,  such,  for  example,  as  that  the  vendor 
has  no  documentary  evidence  of  his  title,  or  that  some  one  of 
the  deeds  under  which  he  holds  is  defective  on  its  face ;  or  that  his 
deed  has  not  been  admitted,  or  has  been  improperly  admitted,  to 
record;  or  that  the  record  discloses  liens  and  incumbrances  upon 
the  estate.  But  it  is  obvious  that  there  may  be  fatal  defects  of  title 
which  neither  appear  from  the  public  records  nor  upon  the  face  of 
any  instrument  under  which  title  is  claimed.  Thus,  a  deed  exe- 
cuted by  a  married  woman  is  in  most  jurisdictions  void  unless 
her  husband  joins  as  a  party,  but  the  fact  that  a  grantor  in  a  deed 
in  the  vendor's  chain  of  title  was  a  married  woman  would  not 
ordinarily  appear  except  upon  inquiries  made  among  those  likely 
to  know  the  fact.  So  it  is  possible  for  a  title  to  be  good  though 
evidenced  altogether  by  matter  in  p&is,  such,  for  example,  as  a 
title  by  inheritance  or  by  adverse  possession  for  a  great  number  of 
years.2  Where  the  defect  of  title  appears  upon  the  face  of  the 
instrument  under  which  title  is  claimed,  or  from  the  public 

1  Lord  HARDWICKE  in  Lyddall  v.  Western,  2  Atk.  20. 
a Jaeger  v.  Harr,  62  Oreg.  16,  123  Pac.  61. 


176  MARKETABLE    TITLE    TO    REAL    ESTATE. 

records,  the  rules  which  protect  a  purchaser  for  value  have  no 
application,  for  two  obvious  reasons;  first,  because  in  such  a 
case  the  purchaser  is  charged  with  notice  of  the  defect;  and, 
secondly,  because  those  rules  afford  protection  only  against  latent 
equities,  which  may  result  in  a  destruction  of  the  title  and  not 
against  an  absolute  want  of  title,  such  as  results  from  an  instru- 
ment on  its  face  insufficient  to  pass  the  title;  for  example,  a 
tax  deed  void  on  its  face  for  want  of  compliance  with  certain 
statutory  requisites  as  to  its  contents.1 

But  while  it  is  impracticable  in  this  work  to  enter  upon  a 
consideration  of  the  laws  respecting  real  property  in  all  the  phases 
in  which  they  may  be  material  to  the  question  of  want  of  title  in 
a  vendor,  it  is  believed  that  a  categorical  summary  of  the  principal 
sources  of  objections  to  title,  having  reference  to  those  laws  will 
be  found  useful  as  an  aid  to  the  memory  in  the1  examination* of  a 
title.  An  attempt  has  been  made  to  present  such  a  summary  here, 
under  the  following  heads:  (1)  Defects  and  Objections  to  Title 
which  apj>ear  upon  the  Face  of  some  instrument  under  which 
Title  is  claimed.  (2)  Defects  and  Objections  to  Title  which 
appear  from  the  Public  Records.  (3)  Defects  and  Objections  to 
Title  arising  from  matters  in  pais  or  those  which  appear  upon 
Inquiry  dekors  the  Public  Records,  and  apart  from  any  Instru- 
ment under  which  Title  is  claimed.  This  summary,  while  neces- 
sarily general  in  its  character,  embraces,  it  is  believed,  references 
to  all  of  the  principal  and  most  important  sources  of  objections 
to  title. 

(I) 

§  77.  DEFECTS  AND  OBJECTIONS  WHICH  APPEAR  UPON  THE 
FACE  OF  SOME  INSTRUMENT  UNDER  WHICH  TITLE  IS  CLAIMED.— 
DEEDS.  Practically  there  are  but  two  vehicles  or  instruments  for 
the  transfer  of  title  to  lands  inter  paartes,  namely:  (1)  Deeds, 
including  letters  patent  or  public  grants;  and  (2)  Wills.  As  to 
deeds,  it  is  obvious  that  these,  in  several  respects,  may  apj>car 
upon  their  faces  insufficient  to  transfer  title.  As  a  general  rule, 
in  the  American  States,  deeds  are  entered  at  large  upon  the  public 
records,  and  in  the  examination  of  titles  many  content  themselves 
with  a  perusal  of  the  record  or  office  copy  of  the  deed;  but  this 
is  never  a  safe  course,  as  there  may  bo  an  imperfection  in  the 

'CogH  v.  Ralph,  24  Minn.  194.     See  pmt.  thin  chaptor.  ft  70. 


ABSTRACT    OF    TITLE.  177 

deed  which  can  only  appear  by  an  inspection  of  the  original,  for 
example,  a  fraudulent  erasure,  interlineation,  or  other  alteration 
therein.  The  sufficiency  of  a  title  should  never  be  passed  upon 
by  counsel  until  he  has  carefully  perused  every  instrument  lying 
in  the  vendor's  chain  of  title,  and  until  he  is  satisfied  that  every 
such  instrument  has  been  laid  before  him  or  has  been  seen  by 
him.  The  most  disastrous  consequences  have  resulted,  and  are 
in  many  cases  likely  to  result,  from  neglect  of  this  seemingly 
unnecessary  caution. 

The  principal  defects  which  will  appear  upon  the  face  of  an 
original  deed  are  as  follows: 

Insufficient  Signing. 

See  ante,  §  32;  3  Washb.  Real  Prop.  270. 

Insufficient  Sealing. 

See  ante,  §  32,  and  authorities  there  cited. 

Insufficient  Execution. 

This  may  occur  in  the  case  of  a  conveyance  by  a  corporation,  as,  where 
the  instrument  runs  in  the  name  of  the  officers  of  the  corporation,  and 
not  in  the  name  of  the  corporation  itself;  or  when  the  formalities,  if 
any,  required  by  the  corporate  charter,  or  special  legislation,  have  not 
been  observed.  So,  also,  where  a  deed  executed  in  pursuance  of  a  power, 
omits  any  of  the  formalities  prescribed  by  the  power. 

Insufficient  Words  of  Conveyance. 
See  ante,  §  19. 

Insufficient  Description  df  the  Premises. 

This,  as  may  be  seen,  may  be  so  vague  and  indefinite  as  to  render  the 
instrument  not  only  ineffectual  as  notice  to  subsequent  purchasers,  but 
void  as  between  the  parties.  Ante,  §  20.  Wait  v.  Smith,  92  111.  385. 
1  Greenl.  Ev.  §  301.  Me&ick  v.  Sunderland,  6  Cal.  298. 

Illegal  Subject-matter  and  Consideration. 

Such,  for  example,  as  a  deed  of  assignment  which  makes  an  unlawful 
preference  among  creditors;  or  a  deed  which  imposes  an  unlawful 
restraint  upon  alienation ;  or  a  conveyance  for  any  illegal  purpose. 

Incompetency  of  Parties. 

This  may  sometimes  appear  upon  the  face  of  a  conveyance,  with  respect 
either  to  the  grantor  or  the  grantee.  Thus,  a  conveyance  by  a  com- 
missioner of  court  which  shows  that  the  commissioner  was  appointed  by 
a  court  in  a  State  other  than  in  which  the  premises  lay,  shows  on  ita 
face  the  incompetency  of  the  grantor.  So,  also,  a  conveyance  by  an 
executor  who  does  not  profess  to  act  under  a  testamentary  power.  Contee 
v.  Lyons,  19  D.  C.  207.  Brush  v.  Ware,  15  Pet.  (U.  S.)  93.  Dowdy  v. 
McArthur,  94  Ga.  577;  21  S.  E.  Rep.  148. 


178  MARKETABLE    TITLE    TO    REAL    ESTATE. 

An  example  of  incotnpetency  of  the  grantee  occurs  where  the  con- 
veyance is  to  a  corporation  not  authorized  by  law  to  hold  real  estate; 
or  where  a  trustee  or  fiduciary  becomes  a  purchaser  of  the  trust  estate. 
Painter  v.  Henderson,  7  Pa.  St.  48. 

Diminutions    in    the    Quantity    of    the    Estate    Intended    to    be 
Purchased. 

This  head  has  reference  to  that  part  of  a  deed  which  determines  the 
nature  and  extent  of  estate  conveyed.  The  great  bulk  of  conveyances  in 
this  country  consists  merely  of  transfers  of  the  fee  from  one  person  to 
another.  Limitations  or  conditions  by  which  the  estate  is  liable  to  be 
defeated,  do  not  so  frequently  occur  with  us  as  in  England,  where  deeds 
are  perhaps  more  employed  than  wills  in  family  settlements.  Still,  the 
purchaser  must  carefully  examine  each  deed  that  lies  in  the  vendor's 
chain  of  title,  in  order  to  see,  among  other  things,  that  each  transfers 
as  large  an  interest  as  the  vendor  has  undertaken  to  sell,  and  that  the 
estate  conveyed  is  not  liable  to  be  defeated  or  diminished  by  any  event 
that  may  transpire  in  the  future.  In  the  large  cities,  it  is  common  to 
find  in  deeds,  conditions  that  no  noxious  trade  shall  be  conducted  on  the 
premises,  or  that  no  buildings  of  a  certain  kind  shall  be  erected  thereon. 
Conveyances  of  land  for  religious  purposes  are  frequently  made  upon 
condition  that  the  premises  shall  be  exclusively  used  for  that  purpose. 
So.  in  other  cases  of  gift,  for  example,  a  conveyance  of  a  court  house 
site,  to  revert  to  the  donor  and  his  heirs  when  no  longer  used  for  that 
purpose. 

Covenant.*  Running  with  the  Land. 

In  many  instances,  covenants  are  inserted  in  deeds  binding  the  grantee 
to  do  certain  collateral  things,  for  example,  to  keep  a  mill  dam  and  race- 
way in  repair,  to  maintain  division  fences  and  the  like.  These,  as  a 
general  rule,  run  with  the  land  and  bind  a  subsequent  purchaser.  So, 
also,  covenants  not  to  use  the  premises  for  specified  purposes.  They 
diminish  the  value  of  the  premises  and  constitute  grounds  upon  which 
the  purchaser  may  reject  the  title.  Post,  $  305. 

Constructive  Notice  from  Recitals. 

A  purchaser  is  not  only  charged  with  notice  of  every  deed  which  lies 
in  the  chain  of  his  vendor's  title,  but  if  any  of  those  deeds  contain 
recitals  which  would  put  a  man  of  ordinary  prudence  upon  inquiry 
respecting  the  rights  of  third  parties  in  the  premises,  he  will  be  charged 
with  notice  of  those  rights,  provided  they  might  have  been  discover^! 
by  the  exercise  of  reasonable  diligence.  Thus,  where  a  deed  is  execute.! 
in  pursuance  of  a  power  of  attorney,  a  subsequent  purchaser  is  rhargcil 
with  notice  of  any  defect  in  the  power.  Morris  v.  Terrel,  2  Rand.  (Va.) 
6.  And  except  in  those  States  where  a  vendor's  lien  must  be  expre--]\ 
reserved  by  the  grantor  on  the  face  of  his  deed,  a  recital  in  the  deed 
showing  that  the  purchase  money  is  unpaid  puts  a  subsequent  purcha-rr 
upon  inquiry,  and  he  must  ascertain  at  his  peril  whether  the  pun  ]ia-<- 
money  has  been  paid  since  the  execution  of  the  deed.  Woodward  v. 
Woodward,  7  B.  Mon.  (Ky. )  116.  Numerous  cases  illustrating  the 


ABSTRACT    OF    TITLE.  179 

doctrine  of  constructive  notice  from  recitals  in  deeds  under  which  the 
purchaser  claims  may  be  found  in  the  reports.  They  show  the  necessity 
of  a  careful  perusal  of  every  deed  in  the  vendor's  chain  of  title. 

Insufficient  Authentication  for  Record. 

This  is  one  of  the  most  important  points  to  which  /the  attention  of  the 
purchaser  must  be  directed.  Authentication  of  a  deed  for  the  purposes  of 
registry  consists  either  in  the  attestation  of  the  deed  by  subscribing 
witnesses,  or  in  the  acknowledgment  thereof  before  certain  officers  in 
the  manner  provided  by  law.  We  have  seen  that,  in  some  of  the  States, 
the  acknowledgment  of  the  deed,  or  the  attestation  of  subscribing 
witnesses,  is  not  only  necessary  to  authenticate  the  same  for  registry, 
but  to  make  the  deed  valid  as  between  the  parties.  Ante,  §  23,  et  seq., 
where,  also,  the  several  requisites  of  a  valid  certificate  of  acknowledg- 
ment are  considered. 

Reservation  of  Liens  or  Charges  upon  the  Estate  Conveyed. 

Liens  for  purchase  money,  annuities,  charges  for  support  and  mainte- 
nance of  the  grantor,  and  the  like,  are  frequently  reserved  on  the  faces 
of  conveyances;  and  all  deeds  in  the  chaim  ol  title  should  be  carefully 
examined,  with  this  fact  in  mind. 

Duty  to  See  to  the  Application  of  the  Purchase  Money. 

In  certain  cases  of  defined  and  limited  trusts,  the  purchaser  of  the 
trust  subject  is  required  to  see  that  the  purchase  money  is  applied  to  the 
purposes  of  the  trust;  otherwise  the  trust  will  attach  to  the  premises 
in  his  hands.  This  must  be  borne  in  mind  in  the  purchase  of  a  trust 
estate.  2  Sugd.  Vend.  (8th  Am.  ed.)  ch.  18;  2  Washb.  Real  Prop. 
(4th  ed.)  528  (211). 

Cancellations,      Obliterations,     Erasures.,     Interlineations     and 
Alterations. 

These,  or  any  one  of  them,  may  be  of  a  kind  and  character  sufficient 
to  destroy  the  validity  of  the  deed.  Their  existence,  of  course,  can  only 
be  known  by  an  inspection  of  the  original  deed. 

Fraud  Apparent  on  the  Face  of  a  Deed. 

As  a  general  rule,  fraud  seldom  appears  on  the  face  of  a  conveyance, 
•so  as  to  charge  a  subsequent  purchaser  with  notice.  It  sometimes 
happens,  however,  that  the  provisions  of  deeds  purporting  to  be  trusts 
for  the  benefit  of  particular  parties  are  framed  so  palpably  in  the  inter- 
est of  the  grantor  that  the  courts  do  not  hesitate  to  pronounce  them 
void,  as  having  been  executed  for  the  purpose  of  delaying  creditors.  An 
-  example  will  be  found  in  Johnson  v.  Thweatt,  18  Ala.  741,  where  prop- 
erty of  the  value  of  $7,000  was  conveyed  in  trust  to  secure  a  debt  of 
$150,  and  several  other  small  debts  not  yet  due,  the  deed  permitting  the 
grantor,  in  the  meanwhile,  to  remain  in  possession  of  the  premises.  The 
deed  was  held  void  on  its  face,  and  a  remote  purchaser  thereunder  charged 
with  notice  of  the  fraud. 


180  MARKETABLE    T1TLK    TO    REAL    ESTATE. 

\Vant  of  Statutory  Recitals. 

In  some  of  the  Stat<>8  it  is  required  by  statute  that  certain  deeds 
executed  in  pursuance  of  a  sale  under  judicial  authority,  or  by  an  officer 
acting  in  a  ministerial  capacity,  .-m-li  as  «  tax  collector,  shall  contain 
recitals,  showing  the  concurrence  of  particular  facts  on  which  the  validity 
of  the  sale  depends.  See  3  Washb.  Real  Prop.  222,  229;  Fre<?m.  Void 
Jud.  Sal«-s  (2d  edj,  §  47;  Blackw.  Tax  Titles,  §  790.  Wherever  such 
provisions  exist  they  should  be  borne  in  mind  in  the  examination  of  a 
title. 

PATENTS.  These  must,  of  course,  conform  in  all  their  features 
to  the  requirements  of  the  laws  of  the  State  in  which  they  were 
issued.1  Those  laws  differ  to  such  an  extent  in  the  several  States 
that  it  would  be  impracticable  to  indicate  here  every  particular 
in  whk-h  a  patent  may  be  upon  its  face  defective.  It  should 
be  observed,  however,  that  every  purchaser  under  a  patent  is 
charged  with  notice  of  any  defect  apparent  upon  its  face,  there 
being  no  difference  in  that  respect  between  patents  and  the  deeds 
of  individuals.1 

WILLS.  The  most  common  objections  to  title  apparent  upon 
the  face  of  a  will  under  which  title  is  claimed  consist  of  some 
restriction,  limitation  or  qualification  of  the  estate  of  the  devisee, 
or  of  some  charge  or  ineumbrance  thereon  created  by  the  will.  As 
a  general  rule  questions  which  might  arise  as  to  the  due  execution 
of  the  will  are  concluded  by  the  sentence  admitting  the  will  to 
probate;  certainly  in  all  cases  in  which  the  probate  was  resisted. 
And  even  after  an  ex  parte  probate,  it  is  hardly  to  be  presumed 
that  the  will  would  have  been  admitted  with  evidence  upon  its 
face  that  it  was  not  legally  executed,  as  if,  e.  g.  it  should  lack 
the  number  of  witnesses  required  by  law. 

Incompetency  of  the  Testator. 

This  may  Kometime*  appear  upon  the  face  of  a  will,  a«  when  its  pro- 
vixiniiH  are  so  foolish  and  unnatural  as  to  show  that  the  testator  was 
devoid  of  testamentary  capacity.  Examples  may  be  found  in  the  hooks. 

1  See  the  case  of  McGarrahan  v.  Mining  Co.,  96  I  .  S.  316,  where  it  is  said 
by  Chief  Justice  WAITE  that  every  part  of  the  execution  of  a  patent,  such  as 
the  signature  by  the  proper  officer,  sealing  and  countersigning,  and  every 
other  xtatutory  requirement,  is  essential  to  the  validity  of  the  instrument. 

'Bell  v.  Duncan.  11  Ohio,  192.     Moore  v.  Hunter,  1  Oilm.   (111.)   317. 


ABSTKACT    OF    TITLE.  181 

Incompetency  of  the  Devisee. 

This,  of  course,  cannot  occur  when  the  devisee  is  a  living  person  who 
can  be  ascertained,  and  who  is  not  a  subscribing  witness  to  the  will. 
But  in  •some  of  the  States  testators  are  prevented  by  law  from  devising 
more  than  a  certain  portion  of  their  real  estate  to  corporations.  And 
in  certain  other  States  devises  to  corporations  of  any  real  property  what- 
ever are  declared  void. 

Invalidity  of  the  Devise. 

This  may  occur  in  several  ways,  e.  g.,  because  of  some  patent  ambiguity 
in  respect  to  the  persons  whom  it  is  intended  shall  take  under  the  will, 
or  in  respect  to  the  subject-matter  of  the  devise;  or,  because  the  will  is 
too  vague,  uncertain  and  indefinite  in  its  provisions';  or,  because  its  pro- 
visions are  unintelligible,  or  in  any  respect  unlawful,  as  where  they 
create  a  perpetuity. 

Diminutions   in    the    Quantity    af   the    Estate    Intended   to    be 

Purchased. 

In  America  deeds  are  seldom  more  than  simple  transfers  of  the  fee 
from  seller  to  the  buyer.  Contingent  remainders  and  executory  limita- 
tions are  rarely  met  with  except  in  wills.  With  testators  who  have  estates 
to  bestow  there  is  usually  a  desire  to  impose  restraints  upon  the  alienation 
of  those  estates,  to  provide  against  possible  untoward  events  of  the 
future,  and  to  secure  to  the  objects  of  their  bounty  and  the  descendants 
of  them,  as  long  as  may  be,  the  benefits  of  their  gifts.  The  consequence 
is  that  wills  are  often  found  to  contain  intricate  and  complicated  dis- 
positions of  property,  making  it  necessary  for  all  parties  to  invoke  the 
aid  of  the  courts  in  the  interpretation  of  the  devise.  The  intention  of 
the  testator  must  sometimes  be  extracted  from  a  number  of  seemingly 
repugnant  or  inconsistent  provisions  of  the  instrument.  Hence,  the 
question  what  interest  or  estate  the  devisee  takes  is  often  a  matter  of 
great  nicety  and  difficulty,  and  requires  for  its  solution  an  intimate 
acquaintance  with  the  rules  of  law  which  govern  in  the  creation  and 
limitation  of  estates  and  in  the  construction  of  wills.  The  purchaser 
should  never  complete  the  contract  until  he  has  carefully  perused  any 
will  that  may  lie  in  the  vendor's  chain  of  title. 

Legacies  Charged  on  Realty,  Annuities,  etc. 

Any  will  which  lies  in  the  vendor's  chain  of  title  should  be  carefully 
examined  to  see  that  it  contains  no  legacy,  annuity  or  the  like  that  ia 
charged  on  the  realty  in  the  hands  of  the  devisee. 

Fraudulent  Alterations  and  Forgeries. 

A  will  is,  of  course,  susceptible  of  fraudulent  alteration  after  it  lias 
taken  effect.  An  example  will  be  found  in  Wilson's  Case,  8  Wis.  171. 
The  original  will  should  always  be  inspected  by  the  purchaser;  there  may 
be  indications  upon  its  face  that  it  is  a  forgery. 

Insufficient  Signing  and  Attestation. 

Probate  courts  often  exact  with  great  rigor  proof  of  compliance  with 
all  formalities  and  ceremonies  prescribed  by  law  for  the  execution  of 
wills,  and,  therefore,  a  sentence  of  such  a  court  admitting  a  will  to 


182  MARKETABLE    TITLE    TO    REAL    ESTATE. 

probate  is  a  reasonably  fair  assurance  to  a  purchaser  that  the  will 
carries  on  its  face  no  evidence  that  it  was  not  entitled  to  probate.  It 
seems,  however,  that  an  ex  parte  admission  of  a  will  to  probate  i»  not 
conclusive  upon  persons  in  interest,  and  the  will  is  liable  to  be  avoided 
upon  an  issue  dfvisavit  id  non.  The  purchaser  should,  therefore,  satisfy 
himself  by  an  inspection  of  the  instrument  that,  for  anything  that 
appears  on  its  face,  it  has  been  properly  admitted  to  probate. 

(II) 

§  78.  DEFECTS  AND  OBJECTIONS  TO  TITLE  WHICH  APPEAR 
FROM  THE  PUBLIC  RECORDS.  The  term  "  public  records,"  in  the 
sense  in  which  it  is  here  used,  means  not  only  the  books  of  registry 
in  which  deeds,  wills,  judgments  and  the  like  are  entered,  but 
all  records  of  a  judicial  or  official  nature  which  are  open  to  the 
inspection  of  the  public,  such  as  the  minutes  of  court  proceedings, 
order  books,  original  papers  in  suits  at  law  or  in  equity,  tax- 
office  records,  land-office  records,  and  other  records  and  documents 
of  a  like  nature. 

(1)    DEFECTS    AND    OBJECTIONS    TO    TITLE    WHICH     APPEAR    FROM 
THE   REGISTERS  OF  CONVEYANCES,  LIENS  AND  INCt'.MBRANCES. 

The  registers,  commonly  known  as  "  Deed  Books,"  "  Land 
Records,"  "  Judgment  Lien  Dockets,"  "  Mechanic's  Lien  Docket," 
exist,  it  is  apprehended,  in  all  the  States'.  The  uses  and  purposes 
for  which  they  are  intended  are  so  well  known  that  no  remark 
about  them  is  deemed  necessary. 
Absence  of  Record  Evidence  of  Tifle. 

If  the  public  record*  do  not  show  title  in  a  vendor,  that  fact  will,  in 
moMt  ca-c*.  lie  treated  as  a  defect  in  his  title.  If  he  holds  under  a  deed, 
that  deed  should  have  been  entered  of  record,  so  as  to  bind  subsequent 
purchasers  and  creditor*.  If  he  has  no  deed  his  title  is  merely  equitable, 
(unlcrts  he  '  hum-  by  inheritance,  or  adverse  possession)  and  is  not  such 
as  a  purchaser  can  be  compelled  to  accept.  And  if,  by  the  contract,  lie 
i*  to  receive  a  "  good  title  of  record,"  it  has  been  held  that  he  may 
reject  a  title  by  adverse  possession.  Ante,  5  6.  But  see  post,  §  292. 

Prior  Conveyances. 

The  possibility  of  a  prior  conveyance  of  the  premises  by  the  vendor, 
or  bin  predeceiwor  in  title,  is  one  of  the  principal  reasons  for  examining 
th«  public  registers.  The  prime  object  of  the  registry  acts  is  to  protect 
pun  IIUMT*  against  secret  liens  and  conveyance*.  The  general  rule  it 
that  a  search  for  prior  conveyances  by  the  vendor,  or  any  one  through 
whom  he  claims,  need  he  extended  back  no  further  than  the  date  at 
which  the  record  shown  title  in-  the  vendor,  or  the*  person  against  whom 
the  hearrh  is  made.  Kaule  Covt.  for  Title  (5th  ed. ),  f  259.  p.  4(MI. 


ABSTRACT  OF  TITLE.  183 

Executory  Contracts. 

Executory  contracts  for  the  sale  of  lands  are  very  generally  included 
in  the  registry  acts  of  the  different  States,  and,  therefore,  when  duly 
admitted  to  record,  are  binding  upon  subsequent  purchasers  from  the 
vendor  without  notice.  See  the  statutes  of  the  several  States. 

Homestead  Estates. 

These,  in  some  of  the  States,  are  required  to  be  described  in  writing 
by  the  claimant,  and  the  description  entered  upon  the  public  records. 
See  1  Washb.  Real  Prop.  (4th  ed.)  366  et  seq. 

Mortgages. 

These,  of  cour&e,  must  be  recorded  in  order  to  bind  subsequent  pur- 
chasers without  notice.  See  the  registry  acts  of  the  several  States. 

Deeds  of  Trust  to  Secure  Debts. 

This  is  the  commonest  form  of  incumbrance  in  several  of  the  States, 
and  takes  the  place  of  mortgages  and  vendor's  liens.  It  is,  of  course, 
embraced  in  the  registry  acts  everywhere. 

Declaration  of  Trust. 

This  is  a  declaration  in  writing  by  one  in  whom  the  legal  title  to 
land  is  vested,  that  he  holds  the  title  in  trust  for  certain  specified  pur- 
poses, or  for  the  use  and  benefit  of  certain  persons.  It  must  be  spread 
upon  the  records  in  order  to  bind  subsequent  purchasers.  Its  nature 
and  incidents  may  be  seen  in  2  Washb.  Real  Prop.  ch.  3,  §  3,  p.  500 
(190). 

Defeasances. 

A  defeasance  is  a  separate  instrument,  executed  by  and  between  the 
parties  to  an  original  deed,  by  which  such  original  deed  is  to  be  defeated 
upon  the  happening  of  a  certain  event.  It  is  seldom  met  with  in  this 
country,  but  is  sometimes  employed  where  property  has  been  conveyed 
by  a  deed  absolute  in  form,  but  in  fact  a  security  for  the  payment  of 
money.  Defeasances  must  be  recorded  in  order  to  bind  subsequent  pur- 
chasers. 2  Washb.  Real  Prop.  61  (495). 

Judgments. 

A  judgment  is  the  commonest  form  of  incumbrance  on  real  property. 
But  it  is  perhaps  in  no  State  u  lien  as  against  a  purchaser  for  value 
and  without  notice,  until  entered  upon  what  is  commonly  called  the 
"  judgment  lien  docket."  In  searching  for  judgments  the  purchaser 
should  be  careful  to  see  that  the  lien  has  not  been  continued  in  favor 
of  a  surety,  who  has  discharged  the  judgment  and  who  is  entitled  to  be 
subrogated  to  the  benefit  of  the  lien.  This  privilege  has  been  accorded  to 
the  surety  in  some  of  the  States,  even  as  against  a  purchaser  without 
notice.  See  Am.  &  Eng.  Encyc.  of  L.  art.  "  Subrogation." 

Lis  Pendens  and  Attachment. 

The  rule  of  the  common  law  is  that  every  person  is  presumed  to  have 
notice  of  the  proceedings  of  the  courts,  and  that  a  purchaser  of  prop- 
erty that  is  in  litigation  must  take  subject  to  whatever  decree  or  judg- 
ment may  be  pronounced  in  respect  to  such  property.  But  this  rule  has 


184  MARKETABLE    TITLE    TO    REAL    ESTATE. 

been  modified  by  statutes  in  most  of  the  States,  which  provide  that  no 
Us  pendena  or  attachment  shall  be  valid  as  against  a  bona  fide  purchaser 
for  value  without  actual  notice,  unless  a  memorandum  thereof  describing 
the  premises,  the  title  of  the  cause,  and  -the  names  of  the  parties,  shall 
have  been  entered  upon  the  register  of  deeds.  Warvelle  Abstracts,  463, 
465;  Story  Eq.  405;  2  Washb.  Real  Prop.  252  (593). 

Mechanics'  Liens. 

See  the  statutes  of  the  respective  States. 

Vendor's  Liens. 

These,  in  several  of  the  States  where  there  has  been  a  conveyance  to 
the  vendor,  must  be  reserved  upon  the  face  of  the  conveyance  in  order 
to  bind  a  subsequent  purchaser.  See  the  laws  of  the  respective  States 
in  this  regard. 

Forthcoming  Bonds  and  Recognizances. 

These,  in  some  of  the  States,  have  the  effect  of  judgment  as  soon  as 
they  become  forfeited,  and  bind  the  lands  of  the  obligor  from  that  time. 
Consult  the  laws  of  each  State  in  this  regard. 

Official  Bonds. 

Are  by  statute  in  several  of  the  States  made  liens  upon  the  real 
property  of  the  obligor  until  he  is  discharged  from  his  official  obligations. 
See  Warvelle  Abstracts,  p.  456. 

Debts  of  Decedents. 

These  are  very  generally  made  liens  upon  the  estate  of  a  decedent  in 
the  hands  of  his  heirs  or  devisees.  Warvelle  Abstracts,  p.  455.  But  in 
Virginia,  to  make  the  lien  effective  after  one  year  from  the  death  of 
the  decedent,  suit  for  the  administration  of  the  assets  of  hh  estate  must 
have  been  begun,  and  a  notice  thereof,  or  lis  pendent,  entered  in  the 
register  of  conveyances.  Va.  Code,  1887,  §§  2667,  3566. 

Miscellaneous  Statutory  Liens. 

We  have  now  enumerated  the  principal  liens  or  inctimbrances  which 
may  bind  an  estate  in  the  hands  of  a  subsequent  purchaser.  It  in 
probable,  however,  that  special  or  peculiar  liens  exist  by  statute  in  some 
of  the  States.  Wherever  such  is  the  case  they  should  be  added  to  the 
foregoing  summary  and  borne  in  mind  when  examining  a  title. 

(2.)  DEFECTS  AND  OBJECTIONS  TO  TITLE  WHICH  APPEAR  FROM 
PUBLIC  RECORDS,  OTHER  THAN  REGISTERS  OF  DEEDS  AND  JUDG- 
MENT LIEN  DOCKETS. 

Taxes  and  A  tisessments. 

Then*  are  everywhere  made  Hen»  upon  the  real  e»tate  of  the  tax- 
payers. They  are  to  be  searched  for  at  the  tax  office*. 

Irregular,  Illegal  and  Invalid  Tax  Sales. 

If  a  tax  deed  in  found  in  the  vendor'*  chain  of  title,  it  is  of  vital 
importance  to  inquire  ( 1 )  whether  the  tax  assessment  was  authorized 
by  law;  (2)  whether  the  tax  or  anaeanment  was  laid  or  imposed  in  accord- 


ABSTRACT  OF  TITLE.  185 

ance  with  the  law,  and  (3)  whether  all  the  requirements  of  the  law 
preliminary  to  the  sale  and  execution  of  the  deed  had  been  complied 
with.  The  first  inquiry  is,  of  course,  to  be  determined  by  an  inspection 
of  the  law.  The  other  two  inquiries  may,  in  a  great  measure,  be 
determined  by  an  examination  of  the  records  in  the  tax  offices,  it  being 
the  policy  of  the  law  that,  as  far  as  possible,  the  fulfillment  of  all  of  its 
requirements  in  regard  to  the  imposition  and  collection  of  taxes  shall  be 
evidenced  by  documents  returned  to,  and  entries  made  in  the  records 
of  the  tax  office.  As  to  the  various  respects  in  which  a  tax  title  may 
be  defective,  see  Blackwell  on  Tax  Titles;  Black  on  Tax  Titles;  2 
Washb.  Eeal  Prop.  221  (541)  ;  Devlin  on  Deeds,  ch.  38,  p.  647.  By  the 
common  law,  the  burden  devolved  on  the  purchaser  of  a  tax  title  to 
show  affirmatively  that  all  the  prerequisites  to  a  valid  sale  for  taxes  had 
been  complied  with,  but  by  statute  in  most  of  the  States  the  tax  deed 
is  made  presumptive  evidence  of  a  valid  tax  and  valid  sale,  and  the 
burden  imposed  upon  the  adverse  claimant  to  show  an  infirmity  in  the 
tax  or  the  sale. 

Want  of  Jurisdiction  in  Judicial  Proceedings. 

The  examination  of  a  title  derived  through  a  sale  under  a  judgment 
or  decree  would  be  an  interminable  affair  if  the  purchaser  were  obliged 
to  inquire  whether  any  error  or  irregularity  existed  in  the  proceedings 
for  which  the  judgment  or  decree  might  be  reversed.  So  far  as  the 
proceedings  antecedent  to  the  sale  is  concerned,  he  is  only  required  to 
see  that  the  court  had  jurisdiction  to  render  the  judgment  or  decree 
under  which  the  sale  was  had.  This,  in  most  cases,  will  appear  from 
the  face  of  the  proceedings;  as  where  the  pleadings  state  a  case  not 
within  the  jurisdiction  of  the  court,  or  where  there  is  nothing  to  show 
service  of  process  on  the  defendant,  or  where  the  pleadings  omit  some 
formality  required  by  law  to  give  the  court  jurisdiction;  for  example, 
the  want  of  an  affidavit  to  the  bill  in  a  suit  for  the  sale  of  an  infant's 
lands.  Numerous  other  instance.s  will  occur  to  the  reader.  But  the 
court  may  have  been  without  jurisdiction  to  render  the  judgment  or 
decree,  and  there  may  be  nothing  upon  the  face  of  the  pleadings  or  the 
proceedings  to  apprise  the  purchaser  of  that  fact.  For  example,  if  A. 
should  file  his  bill  against  his  coparcener,  B.,  for  partition,  fraudulently 
omitting  C.,  another  coparcener,  the  decree  in  the  cause  would  not  bind 
C.,  who  might  thereafter  file  his  bill  against  the  purchaser  under  the 
decree,  and  have  a  re-partition  of  the  premises.  In  such  a  case  the 
purchaser  could  discover  the  want  of  jurisdiction  in  the  court  only  by 
inquiries  made  in  pais. 

Lis  Pendens. 

By  the  common  law  all  persons  are  charged  with  notice  of  the  pro- 
ceedings of  the  courts,  and  a  purchaser  of  property  whereof  the  title 
was  in  litigation  takes  subject  to  whatever  judgment  or  decree  may  be 
pronounced  in  respect  thereto.  In  the  absence  of  any  statute  to  the 
contrary,  it  is  apprehended  that  the  purchaser  would  be  bound,  though 
he  had  no  actual  notice  of  the  litigation,  and  though  no  memorandum 
thereof  had  been  registered,  docketed  or  indexed  in  the  registry  offices. 


18()  MAKKETAllLK    TITLE    TO    REAL    ESTATE. 

Senior  Patents  or  Grants  of  Public  Lands. 

These,  of  course,  will  appear  from  the  records  in  the  land  offices  of 
the  several  States,  and  ot  the  United  States. 

Proceedings  in  Eminent  Domain. 

Such,  for  example,  as  a  municipal  ordinance  providing  for  the  opening 
of  a  street  or  alley.  All  persons  are  presumed  to  have  notice  of  such 
proceedings.  See  Warvelle  Abst.  360. 

(Ill) 

§  70.  DEFECTS  AND  OBJECTIONS  TO  TITLE  ARISING  FROM  MAT- 
TERS IN  PAIS.  OR  THOSE  WHICH  APPEAR  UPON  INQUIRY  DEHORS 
THE  PUBLIC  RECORDS,  AND  APART  FROM  ANY  INSTRUMENT 
UNDER  WHICH  TITLE  IS  CLAIMED.  If  the  vendor  have  the  actual 
legal  title  to  the  estate,  the  purchaser  is  not  concerned  to  inquire 
whether  any  equities  exist  in  third  parties  by  which  that  title  may 
be  defeated,  unless,  of  course,  there  are  facts  known  to  him  which 
should  lead  him  to  inquire  as  to  the  rights  of  third  parties.  If 
this  were  not  true,  there  would  be  little  assurance  of  safety  in 
the  purchase  of  any  title,  and  there  would  be  practically  no  limit 
to  the  inquiries  in  pais  which  a  purchaser  would  be  compelled 
to  make.  But  it  is  to  be  observed  that  this  rule  applies  only 
where  the  vendor  has  the  actual  legal  title,  in  other  words,  as 
has  been  elsewhere  said,  where  the  legal  title  is  in  A.,  and  the 
equitable  title  is  in  B.,  and  a  third  person  buys  from  A.  without 
notice  of  B.'s  equity.1  The  rules  respecting  purchasers  witln'ti: 
notice  are  framed  for  the  protection  of  him  who  purchases  a 
legal  estate  and  pays  the  entire  purchase  mom  v  without  notice 
of  an  outstanding  equity.  They  do  not  protect  a  person  who 
acquires  no  semblance  of  title.2  In  such  a  case  the  rule  cavml 
emptor  applies.1  Thus,  as  a  simple  illustration,  if  the  vendor 
held  under  a  forged  deed,  the  purchaser  would  not  be  protected, 
while  if  the  deed  was  genuine,  but  merely  voidable,  as  having  been 
procured  by  fraudulent  representations,  or  as  having  been  executed 
in  fraud  of  creditors,  and  the  purchaser  had  no  notice  of  the 
facts,  he  could  not  be  deprived  of  the  estate.  Thi<  •li-tiiu-tion 

'Well*  v.  Walker,  29  Oa.  450. 

•Vattier  v.  Hinds,  7  Pet.   (U.  S.)  207,  271;  Sampeyrac  v.  United  State*, 
7  Pet.  (U.  S.)  222;  Boone  v.  ChileH,  10  Pet.   (U.  S.)    177.   Wilson  v.  Mason. 
1  ('ranch  (U.  8.),  45.    Cogel  v.  Raph,  24  Minn.  194.     Snclgrove  v.  Snelp 
4  De*.   (8.  C.)    Rq.  274. 

•Hurst  v.  McNeil,  1  Wash.  (C.  C.)  70.    Daniel  v.  Hollinpshed.,  16  Ga.  190. 


ABSTRACT  OF  TITLE.  187 

is  further  illustrated  by  the  case  of  Texas  Lumber  Manufacturing 
Company  v.  Branch.1  Rueg,  the  owner  of  a  large  real  property, 
died,  leaving  a  wife  and  a  brother  and  sister.  After  the  death 
of  Rueg,  his  wife  gave  birth  to  a  child  -by  him,  which  child  died 
very  shortly  after  birth,  leaving  its  mother  as  its  heir,  who  thus 
became  entitled  to  the  Rueg  estate.  But  the  brother  and  sister 
of  Rueg,  conceiving  themselves  to  be  his  heirs,  conveyed  his 
lands  to  a  third  person.  Meanwhile,  Rueg's  wife,  presumably 
ignorant  of  her  rights  as  heir  of  her  infant  child,  laid  no  claim 
to  the  estate,  but  married  again  and  died,  leaving  children,  who 
brought  an  action,  as  her  heirs,  to  recover  the  estate  from  one 
claiming  under  the  deed  executed  by  the  brother  and  sister  of 
Rueg.  The  defendant  pleaded  that  he  was  a  bona,  fide  purchaser  of 
the  lands,  without  notice  of  the  plaintiffs'  rights,  but  the  court  held 
that  the  doctrine  of  "  purchaser  without  notice  "  did  not  apply  in 
such  a  case,  those  under  whom  the  defendants  claimed  having 
had  no  semblance  of  title  to  the  estate.  But  while  a  purchaser 
for  value  without  notice  cannot  be  affected  by  matters  in  pais, 
which  establish  rights  in  equity  in  favor  of  third  persons  against 
the  vendor,  he  is  not  thereby  excused  from  making  inquiries  in 
pais  which  woulcf  show  the  absence  of  any  legal  title  in  the 
vendor.  The  rule  caveat  emptor  applies  as  well  where  the  want 
of  title  is  to  be  established  by  the  testimony  of  witnesses  only,  as 
where  it  appears  from  the  public  records  or  from  the  instruments 
under  which  the  vendor  claims.  Among  other  equities  which  may 
avoid  the  title  of  the  vendor,  but  which  do  not  affect  a  purchaser 
for  value  without  notice,  may  be  mentioned  the  following:  The 
right  of  a  third  person  to  impress  the  estate  with  a  resulting  trust  ;2 
a  right  to  treat  as  a  mortgage  a  deed  that  is  absolute  in  form ;  3  a 
right  to  vacate  a  deed  as  having  been  procured  from  the  grantor 
by  force,  fraud,  duress  or  mistake ; 4  the  right  to  vacate  a  deed 

1  60  Fed.  Rep.  201. 

>2  Washb.  Real  Prop.  484   (177). 

3 Hicks  v.  Hicks,    (Tex.)    26  S.  W.  Rep.  227. 

4  Wood  v.  Mann,  1  Sumn.  (C.  C.)  500.  3  Washb.  Real  Prop  (4th  ed.) 
260  (565),  339.  But  see,  as  to  duress,  Anderson  v.  .Anderson,  9  Kane.  116, 
where  it  was  held  that  a  married,  woman's  deed,  executed  under  duress,  was 
void  even  as  against  a  purchaser  for  value  without  notice.  Contra,  White 
v.  Graves,  107  Mass.  325. 


188  MAltKETABLE    TITLE    TO    REAL    ESTATE. 

executed  in  fraud  of  creditors ;  *  the  right  to  fix  a  lien  upon  the 
premises  for  the  purchase  money; 2  the  right  to  compel  a  convey- 
ance of  the  legal  title  from  the  vendor.  The  general  rule  is  that 
a  purchaser  for  value  and  without  notice,  who  has  paid  the  pur- 
chase money  in  full,  is  not  affected  by  latent  frauds  or  equities 
of  any  kind.8 

Incompetency   of  Parties  to  Deeds  or  Wills,  with   Respect   to 
Infancy,    Coverture,    Alienage,    Mental    Capacity    or    other 

Disabilities. 

A  deed  executed  by  a  person  incompetent  to  contract  or  to  convey, 
passes  no  title,  even  as  against  a  purchaser  for  value  without  notice. 
So,  also,  a  conveyance  or  devise  to  an  alien  enemy.  The  purchaser  can, 
of  course,  ascertain  the  competency  of  the  .parties  only  by  inquiries  in 
pats.  As  a  matter  of  fact  these  inquiries  are  seldom  made  in  respect  to 
remote  grantors,  the  risk  in  such  cases  being  generally  considered  slight. 

Adverse  Occupancy  of  the  Premises. 

The  purchaser  should  never  omit  to  inquire  as  to  the  occupancy  of  the 
premises.  The  record  title  may  be  apparently  perfect,  and  there  may  be 
nothing  to  indicate  a  want  of  title  in  the  vendor,  but  the  fact  that  the 
premises  are  in  the  adverse  possession  of  a  stranger.  In  such  a  case  he 
is  put  upon  inquiry,  and  charged  with  notice  of  the  rights  of  the 
occupant.  3  Washb.  Real  Prop.  (4th  ed.)  317. 

The  Non-performance  of  Conditions  Antecedent  and  Subsequent, 
and  the  Happening  or  Non-happening  of  Contingencies  upon 

which  an  Estate  Depends. 

These  should  be  shown  by  affidavits. 

The  Occurrence  of  Marriages,  Births  and  Deaths,  wherever  they 
would  Affect  the  Vendor's  Title. 

All  such  facts  must  be  ascertained  by  inquiries  dehorn  the  record,  and 
should  be  embodied  in  affidavit*  to  be  used  in  verifying  the  abstract. 

Forgeries  of  Deeds  or   Wills,   and   Fraudulent   Alterations   or 
Insertions  therein. 

The  purchaser  should  examine  the  original  of  all  deeds,  ;i~  well  as  the 
copies  of  record.  He  takes  the  risk  of  having  the  actual  state  of  the 
title  correspond  with  that  which  appears  of  record.  The  registration  of 
a  deed,  void  from  forgery,  interlineation  or  other  like  cause,  will  not 
|.mt.  ,-t  the  purchaser.  Gray  v.  Jonea,  14  Fed.  Rep.  83.  Reck  v.  Clapp, 
98  Pa.  St.  581;  Arrison  v.  Harmsted,  2  Barr  (Pa.),  191;  Wallace  v. 
Harmftted,  8  Wright  (Pa.),  404;  53  Am.  Dec.  603;  Van  Amringe  v. 
Morton,  4  Whurton  (Pa.),  382;  34  Am.  Dec.  617. 

•3  Wa«hh.  Real  Prop.    (4th.  ed.)    333. 

•Warvelle  Vend.  BOO. 

f  Cngrl  v.  Raph,  24  Minn.   104.     KlannagHn  v.  Oberthier,  50  Tex.  370. 


ABSTRACT  OF  TITLE.  189 

Dower  and  Curtesy  Rights. 

The  existence  of  these  must  be  ascertained  by  inquiries  dehors  the 
record. 

Latent  Ambiguities  in  the  Description  of  the  Thing  Granted  or 
Devised,  or  of  the  Persons  who  are  to  Take  as  Grantees  or 
Devisees. 

Where  these  occur  they  must,  of  course,  be  explained  by  evidence 
aliunde,  if,  indeed,  they  may  be  explained  at  all.  See  1  Greenl.  Ev. 
§  297. 

Insufficiency  of  the  Evidence  to  Establish  Title  by  Inheritance. 
If  the  vendor's  abstract  shows  title  in  him  as  heir  it  should  be  sus- 
tained by  the  affidavits  of  those  having  knowledge  of  the  fact  of  inherit- 
ance. 

Insufficiency    of   the   Evidence   to    Establish   Title   by   Adverse 

Possession. 

If  the  vendor  claims  by  adverse  possession  there  should  be  affidavits 
to  show  such  a  possession1  under  color  of  title  for  a  period  sufficient  to 
bar  the  rights  of  all  persons,  including  those  under  disabilities  when 
the  cause  of  action  accrued. 

The     Want     of     Jurisdiction     of     the     Person     in     Judicial 

Proceedings. 

See  ante,  "  Caveat  Emptor,"  §  49.  An  illustration  will  be  found, 
ante,  §  78. 

The  Existence  of  Physical  Incumbrances  Upon  the  Premises. 

Such,  for  example,  as  a  private  right  of  way,  a  mill  dam  or  the  like. 
Post,  ch.  31,  •§  305. 

Want  of  Possession  under  the  Several  Deeds  in  the   Vendor's 

Chain  of  Title. 

It  is  a  familiar  rule  that  an  unbroken  chain  of  conveyances  down  to 
the  plaintiff  in  ejectment  is  no  evidence  of  title  in  him  unless  possession 
under  and  in  pursuance  of  such  conveyances  appears.  Stevens  v.  Hosmer, 
39  N".  Y.  302.  As  a  matter  of  fact,  however,  in  the  examination  of  a  title 
possession  is  always  presumed  to  have  followed  the  several  conveyances 
under  which  the  vendor  claims,  and  an  inquiry  into  the  fact  of  posses- 
sion is  never  made  unless  there  is  something  in  the  case  to  excite  the 
suspicions  of  the  purchaser. 

Want  of  Delivery  of  Deeds;  Wrongful  Delivery  of  an  Escrow. 
See  Devlin  on  Deeds,  §§  264,  267,  323. 

The  Existence  of  an  Unrecorded  Deed  within  the  Period  During 
which  such  a  Deed  is  by  Statute,  in  some  States,  Allowed  to 
Relate  back  and  Bind  Subsequent  Purchasers  from  the  Time  of 
Acknowledgment. 

See  the  statutes  of  the  several   States.     Martindale's  Abst.  p.  25. 


CHAPTER  VIII. 

WAIVER  OF  OBJECTIONS  TO  TITLE. 

IN  GENERAL.     §   80. 

WAIVER  BY  TAKING  POSSESSION.      §   81. 

LACHES  OF  PURCHASER.      $    82. 

WAIVER  BY  CONTINUING  NEGOTIATIONS.     §   83. 

WAIVER  IN  CASES  OF  FRAUD.     §   84. 

WAIVER  BY  PURCHASING  WITH  NOTICE  OF  DEFECT.     $   85. 

§  SO.  IN  GENERAL.  The  expression  "waiver  of  objections  to 
title/'  as  generally  used,  means  a  waiver  of  the  right  to  recover 
damages  against  the  vendor  for  inability  to  perform  his  contract 
by  reason  of  a  defective  title,  or  of  the  right  of  the  purchaser  to 
rescind  or  abandon  the  contract  on  the  ground  of  the  insufficiency 
of  the  vendor's  title.1  In  either  case  the  principles  upon  which  the 
existence  of  the  waiver  is  determined  are  the  same ;  and  it  is,  there- 
fore, apprehended  that  no  inconvenience  can  result  from  treating 
the  subject  generally,  without  reference  to  the  particular  form  of 
relief  which  the  vendor  claims  to  have  been  waived.  The  doctrine 
of  waiver  of  objections  to  the  title  relates  chiefly  to  cases  in  which 
the  contract  remains  unexecuted  by  a  conveyance  of  the  premises. 
If  the  purchaser  accept  a  conveyance  without  covenants  for  title, 
the  rule  is  general  that  he  can  have  no  relief  at  law  or  in  equity  if 
the  title  prove  defective.  Strictly  speaking,  however,  this  is  more 
a  matter  of  contract  than  of  waiver  implied  from  the  acts  and  con- 
duet  of  the  purchaser.  Still,  there  are  rights  respecting  a  defective 
title  which  the  purchaser  may  waive  even  after  the  contract  has 

1  This  is  without  doubt  the  general  acceptation  of  the  expression  in  the 
American  practice.  More  v.  Smedburgh,  8  Paige  (N.  Y. ),  000.  But  such  a 
definition  is  perhaps  too  broad  for  the  English  practice,  for  there  it  ha«  l»een 
held  that  if  a  purchaser  have  actually  waived  his  right  to  call  for  a  title, 
and  afterwards  for  the  purpose  of  settling  a  conveyance  a  deed  is  produced 
which  shows  a  bad  title,  he  will  not  be  compelled  in  equity  to  accept  the  bad 
title.  1  Sugd.  Vend.  347.  citing  Warren  v.  Richardson,  Yo.  1 ;  Wilde  v.  Fort, 
4  Taunt.  334;  Hume  v.  Bentley.  5  De  O.  4  Sm.  520;  Geoghegan  v.  Connolly, 
8  Ir.  Ch.  Rep.  508.  Such  a  case,  however,  is  not  likely  to  ari^e  in  America, 
•11  conveyance*  AM  a  general  rule  being  there  spread  upon  the  public  record* 
•nd  open  to  the  inspection  of  the  purchaHor.  The  general  doctrines  relating 
to  waiver  of  objection)!  to  title  will  be  found  in  Mr.  Fry's  valuable  treatise 
on  Specific  Performance  (3d  Am.  ed.),  I  1305. 


WAIVER    OF    OBJECTIONS    TO    TITLE.  191 

been  executed ;  for  example,  the  right  to  rescind  the  contract  on  the 
ground  of  fraud,  assuming  that  the  conveyance  was  accepted  with- 
out knowledge  of  the  fraud.2 

It  must  be  borne  in  mind  that  a  waiver  of  objections  to  the  title 
is  not  the  equivalent  of  a  waiver  of  all  the  rights  of  the  purchaser 
in  respect  of  the  defective  title,  for  it  may  be  that  the  waiver  was 
brought  about  by  the  reliance  of  the  purchaser  upon  the  covenants 
for  title  that  he  had  a  right  to  expect.  In  other  words,  the  pur- 
chaser does  not,  by  waiving  the  right  to  rescind  the  contract,  or  to 
recover  damages  for  the  violation  thereof  while  it  remains  execu- 
tory, waive  the  right  to  a  conveyance  with  covenants  for  title  ade- 
quate for  his  protection  in  a  case  in  which  the  contract  entitles  him 
to  such  covenants.  An  act  which  amounts  to  a  waiver  of  the  right 
to  reject  a  defective  title  is  not  necessarily  a  waiver  of  the  right 
to  compensation  for  the  defect.3  Neither  is  an  agreement  by  the 

'Post,  this  chapter,  §§  82,  84. 

3 1  Dart  Vend.  437;  1  Sugd.  Vend.  343.  Cakraft  v.  Roebuck,  1  Ves.  Jr.  221. 
Roach  v.  Rutherford,  4  Desaus.  (S.  C.)  126;  6  Am.  Dec.  606.  See,  also, 
Palmer  v.  Richardson,  3  Strobh.  Eq.  (S.  C.)  16.  A  sale  of  "all  his  (the 
vendor's)  interest  in  the  devise  made  to  him  by  his  father,  F.  B.,  deceased, 
in  a  certain  tract,"  etc.,  is  not  a  contract  of  hazard,  the  reference  to  the 
devise  being  merely  descriptive  of  the  property,  and  the  purchaser  is  entitled 
to  indemnity  against  incumbrances  on  the  land.  Price  v.  Browning,  4  Grat. 
(Va,)  68.  In  the  case  of  Evans  v.  Der  Germania  Turn  Verein,  8  111.  App. 
663,  the  title  had  been  examined  and  prononuced  good  by  the  purchaser's 
attorneys.  The  purchaser  then  paid  part  of  the  purchase  money,  took  pos- 
session, made  material  alterations  in  the  premises,  collected  rents,  and 
otherwise  treated  the  contract  as  valid  and  subsisting.  Afterwards,  on  a 
second  examination  of  the  title  by  other  attorneys,  it  was  pronounced  bad, 
and  the  purchaser  sought  to  rescind  the  contract.  Rescission  was  refused, 
the  court  saying,  among  other  things,  that  the  contract,  which  was  conditioned 
on  the  purchaser's  acceptance  of  the  title,  had  been  made  absolute  by  his 
conduct  in  the  premises,  but  that  the  sellers  ^vere  not  absolved  from  their 
obligation  to  convey  to  the  purchaser  at  the  proper  time  a  good  title,  free 
from  incumbrance.  In  Goddin  v.  Vaughn,  14  Grat.  (Va.)  102,  it  was 
intimated  that  a  purchaser  buying  and  taking  possession  with  notice  of 
defect  of  title  waives  his  right  to  insist  upon  covenants  of  general  warranty 
from  the  vendor.  Perhaps  such  a  decision  was  unnecessary,  as  the  sale  was 
by  an  executrix,  from  whom  no  general  covenants  for  title  could  be  required. 
But  the  authorities  cited  by  the  court  sustain  a  materially  different  propo- 
sition, namely,  that  in  such  a  case  the  purchaser  waives  his  right  to  rescind 
the  contract  or  reject  the  title.  It  can  hardly  be  denied  that  a  purchaser, 
after  being  informed  of  an  objection  to  the  title,  may,  and  in  fact  does  in 
many  cases,  proceed  with  the  bargain  and  look  to  the  covenants  which  he 


192  MARKETABLE    TITLE    TO    REAL   ESTATE. 

purchaser  to  accept  a  deed  without  warranty  to  be  construed  as 
of  itself  a  waiver  of  the  right  to  require  the  production  of  a  clear 
title.  On  the  contrary,  the  presumption  is  that  the  purchaser 
intends  to  insist  upon  that  right,  inasmuch  as  he  will  have  no 
warranty  to  protect  him  if  the  title  should  prove  defective.4 

Obviously  a  waiver  of  objection  to  the  title  must  be  the  relin- 
quishment  or  abandonment  of  some  right  with  respect  to  the  title 
to  which  the  purchaser  under  the  contract  is  entitled,  and  contem- 
plates objections  which  were  either  unknown  to  the  purchaser  at 
the  time  of  the  contract  or  without  reference  to  which  the  contract 
was  concluded.  If  the  purchaser  bought  only  such  right,  title  or 
interest  as  the  vendor  had,  expressly  taking  the  risk  of  the  title, 
there  can  be,  in  the  nature  of  things,  no  opportunity  for  any  ques- 
tion of  waiver.  Hence,  it  follows  that  the  waiver  may  be  implied, 
(1)  from  the  acts  and  conduct  of  the  purchaser  with  respect  to 
defects  of  title  coming  to  his  knowledge  after  the  conclusion  of 
the  contract,  and  (2)  from  the  mere  fact  that  the  contract  was 
made  by  the  purchaser  with  knowledge  that  a  clear  and  unin- 
f-u  inhered  title  could  not  be  had.  It  should  be  observed  here  that 
waiver  of  objections  to  title  in  the  sense  in  which  the  term  is 
commonly  employed  is  not  an  element  of  the  contract  between 
the  parties,  but  rather  an  implication  of  law  from  the  acts  of 
the  purchaser.5  Where,  in  a  contract  for  the  sale  of  land,  a  day 
is  fixed  for  the  conveyance  of  the  property,  if  the  vendee  wishes 
to  object  to  the  title  he  must  give  notice  of  his  objections  a  reason- 
able time  previous  to  the  day  fixed  for  making  the  conveyance  to 
enable  the  vendor  to  remove  the  objections  to  the  title  and  to 
make  the  conveyance  at  the  time  sj>eeified,  or  a  court  of  equity 
may  consider  a  strict  ]>erformance  of  the  contract  by  a  conveyance 
on  the  specified  day  as  waived.'  -But  a  purchaser  may  in  some 
eases  be  deemed  to  have  waived  his  right  to  a  strict  performance 

•  receive  for  hi*  protection.  True,  a  purchaser  may  expressly  agree  to 
take  the  title,  such  as  it  K  without  warranty,  hut  it  seems  scarcely  fair 
to  him  to  iin/»fi/  mirh  an  agreement  from  the  mere  fact  of  his  taking  pos- 
•avion  with  knowledge  of  the  oVfc.  tivr  titTe, 

•Learh  v.  Johnnon,  114  N.  C.  87.  Gallimoro  v.  Grubb,  150  X.  C.  576;  72 
&  1  BJ& 

•1  Sugd.  Vend.   (8th  Am.  ed.)  617   (343). 

•More  T.  Smedhurgh.  8  Paige  (N*.  Y.).  (500.  Allen  v.  Adam*.  1««  Iowa 
300;  143  X.  W.  10"  :i  v.  Lenox  (Mo.  App.)  "201  S.  V.  Ofli. 


WAIVER   OF   OBJECTIONS   TO   TITLE.  193 

of  the  contract  on  a  specified  day  without  being  held  to  have 
waived  his  right  to  rescind  in  case  the  vendor  be  unable  eventually 
to  remove  the  objections  to  the  title.7 

If  the  vendor  can  establish  a  case  of  waiver  of  objections,  he 
should  not  ask  to  have  the  title  referred  to  a  master  or  take  any 
other  step  showing  that  he  does  not  rely  on  the  waiver.8 

A  purchaser  may  waive  or  lose  his  right  to  rescission  by  an 
express  confirmation  of  the  contract,9  or  by  dealing  with  the  prop- 
erty as  his  own  after  knowledge  of  the  circumstances  which  entitle 
him  to  rescission,10  or  by  a  presumed  acquiescence  in  the  title  dis- 
closed by  the  vendor,  even  though  possession  has  not  been  taken.11 


J.,  in  Jackson  v.  Ligon,  3  Leigh   (Va.),  194   (179). 

8  1  Sugd.  Vend.  347,  .citing  Harwood  v.  Bland,  1  Fla.  &  Ke.  540. 

'  1  Sugd.  Vend.  252,  citing  Chesterfield  v.  Janssen,  2  Ves.  146;  Roche  v. 
O'Brien,  1  Bal.  &  Beat.  355;  Cole  v.  Gibbons,  3  P.  Wms.  290;  Morse  v.  Royal, 
12  Ves.  355;  Sandeman  v.  Mackensie,  1  J.  &  H.  613.  The  fact  that  the  pur- 
chaser's counsel  approves  the  abstract  of  title  submitted  by  the  vendor  does 
not  amount  to  a  waiver  of  all  reasonable  objections  to  the  title.  Deverell  v. 
Bolton,  Ii8  Ves.  605.  An  objection  to  the  title  on  the  ground  of  incumbrances 
is  waived  where,  upon  an  offer  to  procure  releases,  the  vendor's  attorney 
says  that  it  is  unnecessary,  as  he  proposes  to  rely  upon  a  deficiency  in  the 
area  of  the  premises.  Cogswell  v.  Boehm,  5  N.  Y.  Supp.  67. 

"Campbell  v.  Fleming,  1  Ad.  &  El.  40.  2  Sugd.  Vend.  (8th  Am.  edO  22 
(423).  An  agreement  by  the  purchasers  that  judgment  might  go  against 
them  for  the  purchase  money  in  consideration  of  the  dissolution  of  an 
injunction  against  them  for  cutting  down  timber,  has  been  held  a  waiver 
of  objections  to  the  title.  McDaniel  v.  Evans,  (Ky.)  14  S.  W.  Rep.  541. 
So,  also,  the  execution  of  a  new  note  for  the  purchase  money  to  an  assignee 
of  the  original  note,  in  consideration  of  further  indulgence.  Wills  v.  Porter, 
5  B.  Mon.  (Ky.  )  416.  Three  months'  delay  by  the  purchaser  in  giving  notice 
of  rescission  after  judgment  in  favor  of  an  adverse  claimant  has  been  held 
no  waiver  of  the  right  to  rescind.  Wilcox  v.  Lattin,  93  Cal.  588;  29  Pac. 
Rep.  226. 

"Fordyce  v.  Ford,  4  Bro.  C.  C.  494.  Forsyth  v.  Leslie,  77  N".  Y.  Supp. 
826;  74  App.  Div.  517.  A  common  provision  in  the  English  conditions  of 
sale,  with  respect  to  waiver  of  objections  to  the  title  may  be  found  in  the 
case  of  Soper  v.  Arnold,  L.  R.,  14  App.  Cas.  429,  and  is  as  follows:  "All 
objections  and  requisitions  (if  any)  in  respect  to  the  title  or  the  abstract, 
or  anything  appearing  therein,  respectively,  shall  be  stated  in  writing  and 
sent  to  the  vendor's  solicitor  within  seven  days  from  the  delivery  of  the 
abstract,  and  'all  objections  and  requisitions  not  sent  within  that  time  shall 
be  considered  to  be  waived,  and  in  this  respect  shall  be  deemed  the  essence 
of  the  contract."  This  time  may  be  enlarged  by  acts  of  the  vendor  amount- 
ing to  a  waiver.  1  Sugd.  267.  Cutts  v.  Thodey,  13  Sim.  206. 

25 


194  MAKKKTAHLK    T1TI.K    TO    KKAL    KSTATE. 

Hut  the  purchaser  must  have  boon  fully  apprised  of  the  facts  "  and 
of  his  legal  rights,11  and  the  effect  of  his  acts,14  and  must  have 
acted  of  his  own  frw  will  K  before  he  will  he  deemed  to  have 
waived  his  right  to  rescission. 

The  purchaser  may,  of  course,  waive  objections  to  the  title  in 
express  terms,  but  in  most  instances  the  waiver  is  implied  from 
his  acts  and  conduct."  In  the  English  practice  a  waiver  of 
objections  to  the  title  means  a  waiver  of  the  right  to  examine  the 
title,  that  is,  to  require  the  vendor  to  produce  a  title  and  support 
it  by  proper  evidence.  In  each  case  the  question  is  whether  the 
purchaser  intended  to  waive  this  right ; 17  but  such  an  intention 
may  be  inferred  from  his  acts  without  having  been  directly 
expressed,  and  this,  though  he  swear  that  he  did  not  mean  to 
waive  the  objections.18  Taking  possession  with  notice  of  the 
objections,  failure  to  insist  on  objections  disclosed  by  an  abstract 
furnished,  granting  a  lease  of  the  premises,  have  each  been  held 
a  waiver  of  objections.1' 

"Life  Amon.  v.  Siddall,  7  Jur.  (N.  S.)  785.  See,  also,  cases  cited  1 
Sugd.  Vend.  (8th  Am.  ed.)  384.  It  seems  that  if  the  vendor  was  guilty 
of  fraud  in  respect  to  the  title,  the  purchaser  will  be  presumed  not  to  have 
been  apprised  of  his  rights.  Baugh  v.  Price,  1  Wil.  320. 

"Cockerell  v.  Cholmeley,  1  Rus.  &  My.  425. 

"  Duntmr  v.  Tredennick,  2  Bal.  &  Beat.  317;  Waters  v.  Thorn,  22  Beav.  547. 

u  1  Sugd.  Vend.  253,  citing  Crowe  v.  Ballard,  3  Bro.  C.  C.  117;  Scott  v. 
Davi*.  4  My.  &  Cr.  91 ;  Wtiod  v.  Downes,  18  Yes.  120;  King  v.  Savery,  5  H.  L. 
Ca«.  027;  Brereton  v.  Barry,  11  Ir.  Ch,  109. 

"  I  Sugd.  Vend.  343.  Dorsch  v.  Andrus,  111  Minn.  287,  126  N.  W.  1071. 
Dunn  v.  Mill*,  (Kan*.)  79  I'ac.  14<J,  n  case  in  which  the  purchaser  made  no 
objection  to  the  abntract  i'uriii-li<-,i  l»y  the  vendor,  and  took  possession  of 
the  premise*.  In  Kreibich  v.  Mart/.,  119  Mich.  343;  78  N.  W.  124,  a  case 
in  which  the  vendor  had  tubaequently  conveyed  the  premises  to  a  stranger, 
it  WEN  held  that  the  purchaser  waived  his  right  to  rescind  by  requiring  the 
•trangvr  in  furnish  him  with  an  abstract  of  title,  and  negotiating  with  him 
re»perting  the  payment*.  The  purchaser  by  specifying  an  objection  to  the 
title  waive*  objection)*  not  specified.  Ante,  fi  ""».  Condit  v.  Johnson,  15S 
Iowa  209.  139  N.  W.  477.  He  waives  an  objection  to  the  title  also  by  request- 
ing the  vendor  to  execute  and  forward  a  'teed  to  the  property.  Krantz  v. 
Vincent.  152  Iowa  080,  133  N.  W.  121.  Specific  objection  to  a  clause  in  a 
deed  in  th*»  vendor'*  chain  of  title  i-  not  waived  by  giving  a  wrong  reason 
for  the  objection.  Koch  v.  Strcuter,  232  III.  594,  83  N.  E.  1072. 

"  Dowaon  v.  Solomon,  I   Drew.  &  Sm.   1. 

"  K\  purte  Sidrtxithain.  1  Mon.  ft  Ay.  666. 

*  Infra,  thin  chapter. 


WAIVER   OF   OBJECTIONS   TO   TITLE.  195 

The  purchaser  does  not  waive  his  right  to  rescission  for  defect  of 
title  by  reselling  the  premises,  since  it  must  be  presumed  that  he 
intends  to  obtain  a  good  title  himself  in  order  to  perform  his  con- 
tract with  his  vendee.20  An  approval  of  the  title  by  the  purchaser's 
counsel  will  not  bind  the  purchaser  as  a  waiver  of  objections.21 
Nor  will  the  purchaser's  acceptance  of  an  abstract  as  satisfactory 
amount  to  a  waiver  of  objections  not  appearing  on  the  abstract, 
and  if  he  can  prove  the  title  bad  aliunde,  he  will  be  entitled  to 
rescind.22  Nor  do  acts  of  ownership,  where  possession  has  been 
authorized,  amount  to  a  waiver.23  The  general  rule  is  that  the 
purchaser,  by  retaining  the  abstract,  waives  objections  to  the 
title ; 24  but  the  acceptance  of  the  abstract  as  satisfactory  does 
not  deprive  the  purchaser  of  the  right  to  require  that  it  shall  be 
supported  by  proper  evidence  when  necessary.25  Nor  does  the 
purchaser  waive  objections  to  the  title  by  retaining  the  abstract 
a  reasonable  length  of  time  to  enable  him  to  make  necessary 
searches  of  the  record  for  the  purpose  of  verifying  the  abstract.26 
But  having  accepted-  the  abstract  'as  satisfactory,  and  being  in 
default  in  the  payment  of  the  purchase  money,  he  thereby  waived 
the  objection  that  the  abstract  did  not  show  title  in  the  vendor.27 

The  purchaser,  by  receiving  the  abstract  after  -the  time  in  which 
by  the  contract  it  was  to  be  furnished,  waives  his  right  to  rescind 
for  non-compliance  with  the  contract  in  that  respect,  but  does  not 
waive  his  right  to  rescind  for  want  of  good  title  shown  by  the 
abstract.28 

20  Knatchbull  v.  Grueber,  1  Mad.  170.  McCracken  v.  San  Franciso,  16  Cal. 
591.  Moore  v.  Price,  46  Tex.  Civ.- App.  304,  103  S.  W.  234.  But  see,  Pierce 
v.  Pettit,  46  Wash.  668,  91  Pac.  190  and  Joyce  v.  Hagelstein,  (Tex.  Civ.  App.) 
163  S.  W.  356. 

"Deverell  v.  Bolton,  18  Ves.  505;  Harwood  v.  Bland,  1  Fla.  &  Ke.  540. 

22  1  Sugd.  Vend.  347;    1  Yo.  &  Coll.  570. 

23  Duncan  v.   Cafe,  2  M.  &  W.   244.      See  post,   "  Waiver  by  Taking  Pos- 
session."    §  81. 

24  Ky.  Distilleries  Co.  v.  Blanton,  149  Fed.  31,  80  C.  C.  A.  343;  Kane  v. 
Jones,  46  Wash.  631,  91  Pac.  2;  Lang  v.  Hedenberg,  277  111.  368,  115  N.  E. 
566. 

25  Southby  v.  Hutt,  2  My.  &  Cra.  207. 
'•Lessenich  v.  Sellers,  119  Iowa,  314;  93  N.  W.  348. 
27  Lang  v.  Hedenberg,  277  111.  368,  115  N.  E.  566. 
"Bragg  v.  Chik-ote,   177  111.  App.  371. 


190  MARKETABLE    T1TI.K    TO    HEAL    ESTATE. 

§  81.  WAIVER  BY  TAKING  POSSESSION.  The  general  rule  is 
that  if  the  purchaser  takes  possession  of  the  estate  with  knowledge 
of  incunibrunces  ami  defects  of  title,  he  thereby  waives  his  right 
to  rescind  the  contract,  or  to  recover  damages  against  the  vendor.29 
Hut  this  rule  docs  not  apply  when  the  purchaser  was  not  aware  of 
the  objections  to  the  title  when  he  took  possession ;  *°  nor  where 
the  contract  authorizes  him  to  take  possession  before  a  title  is 
made ;  "  nor  where  under  the  contract  he  is  entitled  to  call  for 

*  1  Sugd.  Vend.  (8th  Am.  cd.)  11,  517.  See  post,  "Waiver  by  Purchasing 
with  Xotice  of  Defect."  §  85.  Vancouver  v.  Bliss,  11  Ves.  464;  Ex  parte 
Sidebotham.  1  M«.n.  &  Ayr.  655;  2  Mon.  &  Ayr.  146:  Calcraft  v.  Roebuck,  1 
Ve*.  Jr.  220.  Tom  pk  ins  v.  Hyatt,  28  N.  Y.  347;  Caswell  v.  Black  River 
Mfg.  Co.,  14  Joluia.  (X.  Y.  >  453.  Christian  v.  Cabell,  22  Grat.  (Va.)  99. 
Harm-it  v.  Gamin,  8  Ala.  373.  Mitchell  v.  Pinckney,  13  So.  Car.  203;  Roach 
v.  Rutherford,  4  Desaus.  (S.  C.)  126;  6  Am.  Dec.  606;  Palmer  v.  Richardson, 
3  Strobh.  Eq.  (S.  C.)  16.  Craddock  v.  Shirley,  3  A.  K.  Marsh.  (Ky.)  1139. 
Richmond  v.  Gray.  3  Allen  (Mass.),  25.  McCauley  v.  Moses,  43  Ga.  577. 
Allen  v.  Adams,  162  Iowa,  300,  143  X.  W.  1092.  Zempel  v.  Hughes,  235  111. 
424.  85  X.  E.  641.  In  Beck  v.  Simmons,  7  Ala.  76.  it  was  said  by  ORMOXD, 
J. :  "  It  would  be  contrary  to  equity  and  good  conscience  to  permit  one  who 
proceeds  HO  far  in  a  purchase  as  <o  obtain  possession  with  knowledge  of  a 
defect  in  the  title  to  object  afterwards  the  want  of  a  title  as  a  reason  for 
not  complying  with  his  contract.  If  he  knows  that  a  defect  can  only  be 
obviated  by  a  judicial  proceeding  it  is  impossible  to  suppose  that  the  time 
stipulated  for  the  completion  of  the  contract  was  considered  by  him  an 
essential  ingredient  of  the  contract,  as  it  could  not  be  known  what  length 
of  time  it  might  take  to  obtain  the  title.  The  question,  therefore,  in  such 
cau-H  in  not  whether  the  party  was  able  to  make  the  title  on  the  day  stipu- 
lated, but  whether  there  was  unreasonable  delay  in  obtaining  it."  Citing 
S*ton  v.  Slade.  7  Veil.  265;  Colton  v.  Wilson.  3  P.  Wms.  190. 

"1  Sugtl.  Vend.  (Sth  Am.  ed.l  12.  Stevens  v.  Guppy.  3  Rus.  171;  Kirtland 
v.  l'..un-4-M.  2  Taunt.  145;  Dowson  v.  Solomon,  1  Drew.  &  Sm.  1;  Hearne  v. 
Ti.mlin.  Peake  (a.  192.  Gaus  v.  Renshaw,  2  Pa.  St.  34;  44  Am.  Dec.  152. 
Siinp«on  v.  Kli|.-t«-in.  89  X.  J.  Eq.  543,  105  Atl.  218.  But  see  Briggs  v. 
Gilhun.  cited  in  1  Rich.  Eq.  (S.  C.)  407,  408,  where  it  was  held  that  a  party 
who  goes  into  poaeeMnon  without  knowledge  of  the  title,  and  who  afterwards, 
nuning  to  the  knowledge,  continues  in  possession  for  a  considerable  time, 
u«ing  the  property  as  hi*  own,  will  be  compelled  to  accept  such  title  as  the 
vendor  can  make. 

w  I  Sugd.  Vend.  343,  citing  Dixon  v.  Astley,  1  Mer.  ch.  4,  |  4;  Wright  v. 
Griffith.  I  Ir.  Ch.  G9.r»;  Sibbald  v.  Lourie,  18  Jur.  141;  Thompson  v.  Dulles, 
>  Rich  Eq.  (S.  C.)  370);  Steven*  v.  Guppy,  3  Rus.  171;  Hendricka  v. 
Gillrnpir.  2ft  Grat.  (Va.)  181.  Thin  exception  renders  the  rule  comparatively 
of  little  importance  in  America,  for  in  the  vast  majority  of  oases,  especially 
tho**  in  which  the  payment  of  the  purchase  money  and  the  execution  of 
th*  conveyance  are  deferred,  the  contract  provides  that  the  purchaser  shall 


WAIVER   OF   OBJECTIONS   TO   TITLE.  197 

a  good  title  and  takes  possession  with  the  concurrence  of  the 
vendor ;  32  nor  where  the  vendor  had  agreed  to  remove  the  objec- 
tion to  the  title.33  There  must  also  be  circumstances  to  show 
that  the  purchaser  intended  to  accept  such  title  as  could  be  made, 
and  to  rely  for  his  redress  upon  the  covenants  for  title  which  he 
was  to  receive  from  the  vendor. Z4f  It  is  oflbvious  that  great 
injustice  may  be  done  the  purchaser  by  a  too  liberal  interpreta- 
tion of  his  acts  as  a  waiver  of  objections  to  the  title,  and  there 
are  decisions  which  restrict  such  conclusions  to  cases  in  which 
an.  intention  to  waive  the  objections  by  taking  possession  clearly 
appears.35  The  mere  act  of  taking  possession  of  real  estate  and 
exercising  acts  of  ownership  over  it  will  not  preclude  the  pur- 
chaser from  his  right  to  examine  the  title,  unless  the  court  is 
satisfied  that  he  intended  to  wTaive  and  has  actually  waived  such 
right.  The  waiver  is  a  question  of  intention  and  one  of  fact  from 
all  the  circumstances,  and  not  an  arbitrary  presumption  of  law 

have  possession.  In  England  it  is  the  common  practice  to  provide  in  the 
conditions  of  sale  that  the  purchaser  may  take  possession  without  prejudice 
to  his  right  to  object  to  the  title.  See  Adaris  v.  Heathcote,  10  Jur.  301. 

"Dart  Vend.  (5th  ed.)  434;  1  Sugd.  Vend.  (8th  Am.  ed.)  337.  Magaw 
v.  Lothrop,  4  Watts  &  S.  (Pa.)  321.  Burroughs  v.  Oakley,  3  Swan,  159. 
Burnett  v.  Wheeler,  7  M.  &  W.  364.  In  this  case  it  was  held  that  an  express 
agreement  to  make  a  good  title  hound  the  vendor  at  law  to  remove  defects 
in  the  title  known  to  the  parties  at  the  date  of  the  contract,  and  which  were 
capable  of  being  removed.  The  right  to  rescind  is  not  lost  by  a  verbal  waiver 
of  such  agreement.  Goss  v.  Nugent.  2  Nev.  &  Man.  35. 

"  Burnett  v.  Wheeler,  7  M.  &  W.  364,  supra ;  Duncan  v.  Cafe,  2  M.  &  W. 
244.  In  Barton  v.  Rector,  7  Mo.  524,  where  by  the  contract  the  purchaser 
was  to  have  a  conveyance  with  general  warranty,  he  was  allowed  to  rescind 
though  he  bought  with  notice  of  incumbrances  on  the  land. 

14  Jones  v.  Taylor,  7  Tex.  240;  56  Am.  Dec.  40;  Hurt  v.  McReynolds,  20 
Tex.  595 ;  Hurt  v.  Blackstone,  20  Tex.  601  ;  Littlefield  v.  Tinsley,  22  Tex. 
259. 

35  In  Corey  v.  Matheson,  7  Lans.  (N.  Y.)  80,  it  was  said  by  MUIXIN,  P.  J. : 
"It  has  been  repeatedly  said  that  a  purchaser  who  takes  and  retains  posses- 
sion of  lands  under  a  contract  of  purchase  is  estopped  from  alleging  a  defect 
in  the  vendor's  title.  1  Hilliardi  on  Vend.  4,  223;  Viele  v.  R.  Co.,  20  N.  Y. 
184.  But  the  proposition  thus  broadly  stated  is  not  supported  by  any 
adjudged  case  that  I  have  been  able  to  find.  *  *  *  When  the  defect  in  the 
title  is  such  as  necessarily  to  lessen  the  value  of  the  property,  it  will  not  be 
held  waived  except  upon  the  most  conclusive  evidence  that  it  was  his  inten- 
tion so  to  do,"  citing  King  v.  King,  1  Myl.  &  K.  442;  Burroughs  v.  Oakley, 
3  Swanst.  159;  Minor  v.  Edwards,  12  Mo.  137;  49  Am.  Dec.  121.  See,  also, 
to  the  same  effect,  Bank  of  Columbia  v.  Hagner,  1  Pet.  (U.  S.)  455.  Jonea 
v.  Taylor,  7  Tex.  240;  56  Am.  Dec.  48. 


198  MAKKETAI1LK    TITLE    TO    KEAL    ESTATE. 

from  the  mere  fact  of  taking  possession.38  But  if  he  exercises 
acts  of  ownership  after  notice  or  information  of  defects  in  the 
title,  he  will,  as  a  general  rule,  be  deemed  to  have  waived  his 
objections  to  the  title.37  It  has  been  held  that  a  purchaser  taking 
possession  with  knowledge  that  the  vendor  has  made  fraudulent 
representations  as  to  the  title,  though  he  may  thereby  waive  his 
right  to  rescind  the  contract,  does  not  waive  his  right  to  recover 
damages  for  the  fraud  by  action  of  deceit.88 

When  the  purchaser  becomes  aware  of  facts  respecting  the  title 
whica  give  him  a  right  to  rescind  the  contract  he  must  exercise 
that  right  promptly.  It  is  an  evidence  of  bad  faith  that  he  raises 
no  objection  to  the  title  on  account  of  known  defects  or  incum- 
branees,  until  he  is  sued  for  the  purchase  money.89  The  question 
whether  or  not  the  purchaser  waived  his  right  to  rescind  the  con- 
tract by  taking  possession  when  he  knew  the  title  to  be  defective,  is 
not  a  question  of  law,  but  a  question  of  fact  to  be  determined  by 
all  the  circumstances  surrounding  the  transaction.40  If  the  pur- 
chaser makes  no  objection  to  the  title  shown  by  the  vendor,  and 
takes  possession  but  refuses  to  complete  the  contract  afterwards  on 
the  sole  ground  that  the  vendor  failed  to  tender  a  conveyance  of 
the  premises  in  due  time,  he  will  be  deemed  to  have  waived 
objections  to  the  title.41 

"Page  v.  Greeley,  75  111.  400.  Lilienthtil  v.  Bierkamp,  133  Iowa  42,  110 
X.  W.  152. 

"  Canton  Co.  v.  Balto.  &  Ohio  R,  Co.,  (Md.)  29  Atl.  Rep.  821.  Keeper 
T.  Yocum,  84  Kan.  554,  114  Par.  1063;  Ann.  Cas.  1912  A,  748;  Nicholson  v. 
Lieher.  (Tex.  Civ.  App. )  153  S.  \V.  (541.  Where  the  purchaser  sold  certain 
fixture**  on  the  premises  lo  the  vendor's  husband,  hut  when  the  fixtures  were 
being  taken  down  Hiijrne*tc<l  that  their  removal  he  deferred  until  the  examina- 
tion of  the  title  fthould  Ix*  completed  and  found  satisfactory,  it  was  held 
that  the  actn  of  the  purchaser  in  the  premises  did  not  constitute  a  waiver 
of  the  right  to  object  to  the  title.  Kountze  v.  Hellmuth,  f»7  Hun  (X.  Y.). 
343;  22  X.  Y.  Supp.  201.  Kt»pe«-ially  does  the  rule  stated  in  the  text  apply 
where,  after  the  purchaser  took  possession,  the  vendor,  who  had  originally 
only  a  life  e»tat«  in  the  premiaea,  acquired  the  fe«.  Brown  v.  Pinniger,  81 
N.  J.  Kq.  229,  86  Atl.  541. 

"Whitney  v.  Allaire.  1  Conwt.   (X.  Y.)   305. 

"Hart  v.  Iluiullin,  43  Mo.  171.     Dunn  v.  Mills,   (Kans.)   79  Pac.  146,  502. 

•M  Sugtl.  Vend.  (8th  Am.  ed.)  517  (343).  Drnvson  v.  Solomon,  1  Drew. 
&  8m.  I.  Bitrrotifihft  v.  Oakley,  3  Swan,  159. 

"  Hun  v.  Bourdon,  08  X.  Y.  Supp.  112;  57  App.  Div.  351. 


WAIVER   OF    OBJECTIONS   TO   TITLE.  199 

§  82.  CACHES  OF  PURCHASER.  The  right  to  rescind  may  also 
be  lost  by  lapse  of  time,  even  though  the  time  elapsed  be  short  of 
the  statute  of  limitations.42  Especially  does  this  rule  apply  when 
the  conditions  of  the  parties  have  so  changed  that  the  vendor  can- 
not be  put  in  statu  quo.45  The  purchaser  must  exercise  his  right 
to  rescind  within  a  reasonable  time ;  there  is  no  precise  rule  by 
which  to  determine  what  will  constitute  a  reasonable  time,  each 
case  being  left  to  the  sound  discretion  of  the  court,  having  in 
view  the  nature  of  the  property  affected,  changes  in  its  character 
and  value,  and  the  rights  of  persons  interested.44  Time  will  begin 
to  run  from  the  period  when  the  right  to  relief  was,  or,  with 

42 1  Sugd.  Vend.  253.  Medlicot  v.  O'Donel,  1  Bal.  &  Beat.  156;  Morse  v. 
Royal,  12  Ves.  374.  Corbett  v.  Shulte,  119  Mich.  249;  77  N.  W.  947.  Lanitz 
v.  King.  93  Mo.  513;  6  S.  W.  Rep.  263,  where  the  plaintiff  delayed  twenty 
months  in  tendering  performance  and  demanding  a  deed.  Coleman  v.  Bank, 
115  Ala.  307;  22  So.  84;  seven  years. 

43  Hunt  v.  Silk,  5  East,  449.  Caswell  v.  Black  River  Mfg.  Co.,  14  Johns. 
(X.  Y.)  453.  Smith  v.  Detroit  Min.  Co.,  17  S.  Dak.  413;  97  N.  W.  17. 

44 1  Sugd.  Vend.  (8th  Am.  ed.)  389,  n.,  where  a  large  number  of  decisions 
illustrating  the  doctrines  of  equity  in  relation  to  the  enforcement  of  stale 
demands  and  laches  in  the  assertion  of  rights  are  collected,  but  many  of 
which  have  no  bearing  upon  the  subject  of  rescission  for  defect  of  title  other 
than  by  way  of  analogy.  It  would  seem  that  the  rules  respecting  waiver  of 
objections  to  title  presumed  from  laches  apply  only  in  cases  where  the  pur- 
chaser had  possession;  otherwise,  it  would  appear  that  there  is  as  much 
reason  to  charge  the  vendor  with  laches  in  the  enforcement  of  his  rights 
as  to  fix  that  responsibility  upon  the  purchaser.  In  Roach  v.  Rutherford, 
4  Desaus.  (S.  C.)  126;  6  Am.  Dec.  606,  long  possession  by  the  purchaser 
and  a  confession  of  judgment  for  the  purchase  money  were  held  a  waiver 
of  the  right  to  rescind.  In  Guttschlick  v.  Bank  of  the  Metropolis,  5  Cr. 
(C.  C.  U.  S. )  435,  the  purchaser  having  rejected  an  insufficiently  executed 
deed,  judgment  was  given  in  his  favor  for  restitution  of  the  purchase  money, 
though  he  had  been  in  possession  seven  or  eight  years.  No  question  of  waiver 
of  the  right  to  rescind  appears  to  have  been  raised.  In  the  following  cases5 
a  waiver  of  that  right  was  presumed  from  long-continued  possession 
and  laches  on  the  part  of  the  purchaser:  Adams  v.  Heathcote,  10  Jur.  301. 
Tompkins  v.  Hyatt,  28  X.  Y.  347;  Ballard  v.  Walker,  3  Johns.  Cas.  (N.  Y.) 
60;  Watt  v.  Rogers,  2  Abb.  Pr.  (N.  Y.)  261;  Taylor  v.  Fleet,  1  Barb.  (N.  Y.) 
471.  Bell  v.  Vance,  6  Litt.  (Ky.)  108;  Hart  v.  Bleight,  3  T.  B.  Mon.  (Ky.) 
273;  Lacey  v.  McMillan,  9  B.  Mon.  (Ky.)  523.  So  Pac.  R.  Co.  v.  Choate, 
132  Cal.  278;  64  Pac.  1;  Latimer  v.  Capay  Valley  L.  Co.,  137  Cal.  286;  70 
Pac.  82.  Vendees  who  have  been  in  possession  more  than  thirty  years,  making 
no  effort  to  perfect  their  title  or  to  rescind  the  contract,  will,  if  reasonably 
secure  in  their  title,  be  compelled  to  take  it  and  pay  the  purchase  money. 
Edwards  v.  Van  Bibber,  1  Leigh  (Va.),  183.  As  the  vendor  cannot  perfect 
his  title  where  time  is  material,  so  neither  can  the  purchaser,  buying  with 


200  MAKKETABLK    TITLE    TO    REAL    ESTATE. 

reasonable  diligence,  might  have  been  discovered.45  The  pur- 
chaser is  not  chargeable  with  laches  where  both  parties  knew  the 
title  to  be  defective,  and  that  it  would  take  considerable  time 
to  remove  the  defect.4*  Nor  where  the  delay  is  caused  by  the 
vendor's  promises  to  make  the  title  good.47  But  nothing  can  be 
clearer  than  the  equity  which  compels  him  to  complete  the  con- 
tract in  a  case  in  which,  with  knowledge  of  the  objection  to  the 
title,  he  continues  in  the  uninterrupted  possession  and  enjoyment 
of  the  premises,  without  having  paid  any  part  of  the  purchase 
money,44  and  without  offering  to  restore  the  premises  to  the 
vendor.4' 

§  82-u.  Failure  to  object  on  "  law  day."  It  has  been  held 
that  a  purchaser  who  makes  specific  objections  to  the  title  on  the 
"  law  day,"  that  is,  the  day  fixed  for  the  performance  of  the  con- 
tract, cannot  subsequently  raise  a  new  objection,  even  if  it  is  valid, 
whore  it  is  one  which  might  have  been  removed  by  the  vendor. 
He  must  proceed  with  the  contract  and  rely  for  his  protection 

ii|M>n  the  covenants  for  title  which  he  is  to  receive.50 

§  83     WAIVER  BY  CONTINUING  NEGOTIATIONS   WITH  THE 

VENDOR.  If  the  purchaser  proceeds  with  his  negotiations  after  he 
has  been  informed  of  defects  in  the  title  and  knows  that  a  good 
title  cannot  be  made  until  those  defects  are  cured,  he  will  be  held 
to  his  bargain51  notwithstanding  the  expiration  of  the  time 


that  the  title  is  defective,  withhold  the  purchase  money  for  an 
time  and  then  demand  specific  performance,  the  property  having 
in  the  meanwhile  greatly  increased  in  value.  Taylor  v.  Williams,  45  Mo.  80. 
In  Taylor  v.  William*,  (Colo.)  31  Par.  Rep.  504,  it  was  held  that  a  delay 
of  a  month  by  the  pun  ha-or  in  electing  to  rewind  the  contract  on  the  ground 
of  dcfrctn  of  title  nhown  by  the  abstract  did  not  deprive  him  of  the  right 
to  recover  back  bin  deponit  and  expense*. 

•  1  Sugd.  Vend.  254. 

•Vail  v.  Xel*on.  4   Rand.   (Va.)    478. 

*  Sniffer  v.  Diet*.  53  Hmv.  Pr.   (X.  Y.)  372. 
•Kennedy  v.  Woolfolk.  3  Hayw.   (Tenn.)    10/5. 

•So.  Par.  R,  Co.  v.  (  h«*te.  132  Cal.  278;  64  Pac.  292. 

"Iliffjrin*  v.  KaRlrt  <in.  1.1ft  X.  Y.  466.  50  X.  E.  287.     Benson  V.  Cromwell. 
fl  At*.  Pr.  Cane*,  «3.  R5.     Garibaldi   Realty  Co.  v.  Santangelo,   149  N.  Y. 
Supp.  669;    164  App,  Div.  513.     Wnlfnrd  v.  Jacknon,   123  Va.  280,  96  S.   E. 
237.     Ante,  I  75. 

Tiriffjr*  v-  Woodruff.  14  Ala,  9.  Rader  v.  Xeale.  13  W.  Va.  373.  Grigg 
v.  UndU.  6  C.  E.  Or.  (X.  J.  Kq.)  494.  Vail  v.  Nelson,  4  Rand.  (Va.)  478. 
H..rnr  v.  llnffm.  110  Ga,  362;  35  S.  K.  715.  Freeman  v.  Duncan,  (Tex.  Civ. 


WAIVEK    OF    OBJECTIONS    TO    TITLE.  201 

appointed  for  the  completion  of  the  contract,  and  though  it  will 
require  a  considerable  further  time  in  which  to  perfect  the 
title.52  But  this  rule  does  not  apply  if  he  continues  in  his  sub- 
sequent negotiations  to  insist  upon  the  objections  to  the  title.53 
As  has  been  tersely  said :  "A  treaty  cannot  waive  that  about  which 
the  purchaser  treats."  54  Payment  of  any  part  of  the  purchase 
money,  after  notice  of  a  defect  in  the  title,  will,  as  a  general 
rule,  be  treated  as  a  waiver  of  the  right  to  rescind.55 

§  84.  WAIVER  IN  CASES  OF  FRAUD.  The  rule  that  the  pur- 
chaser must  promptly  inform  the  vendor  of  his  intention  to 
rescind  the  contract  on  discovery  of  a  defect  in  the  title,  especially 
applies  in  cases  where  the  vendor  was  guilty  of  fraudulent  rep- 
resentations in  respect  to  the  title.56  If  the  purchaser  continues 

App.)  138  S.  W.  1060.  In  Flint  v.  Woodin,  9  Hare,  618,  it  was  said  by 
Sir  J.  WIGBAM,  V.  C. :  "A  purchaser  wh'o  finds  there  is  an  objection,  if  he 
intends  to  rely  upon  it,  must  take  his  stand  upon  it  at  once;  he  cannot 
go  on  treating  as  if  he  had  waived  the  objection  and  then  turn  round  after- 
wards and  attempt  to  avail  himself  of  it."  See,  also,  McMurray  v.  Spicer, 
L.  R.,  5  Eq.  527.  A  purchaser  at  an  auction  sale  not  informed  of  an  out- 
standing interest  in  infant  heirs  may  abandon  his  purchase  and  refuse  to 
proceed;  but,  if  he  go  on  with  -the  purchase,  content  to  take  such  conveyance 
as  can  then  be  made  and  look  to  chancery  for  title  to  the  infants'  interests, 
he  thereby  waives  his  right  to  rescind.  Goddin  v.  Vaughn,  14  Grat.  (Va.) 
102.  The  offer  to  rescind  should  be  made  as  soon  as  the  defect  is  discovered. 
Newell  v.  Turner,  9  Port.  (Ala.)  420.  An  offer  made  by  the  purchaser,  after 
examining  the  title,  to  take  the  land  if  he  might  pay  for  it  in  notes  of  third 
persons,  which  offer  the  vendor  refused,  is  no  waiver  of  the  right  to  reject 
the  title  if  bad.  Mead  v.  Fox,  6  Gush.  (Mass.)  199. 

32 1  Sugd.  Vend.  265.  Seton  v.  Slade,  7  Ves.  265 ;  Pincke  v.  Curtiss,  4  Bro. 
C.  C.  329;  Webb  v.  Hughes,  L.  R.,  10  Eq.  281.  Riggs  v.  Pursell,  66  N.  Y. 
193,  198.  Vail  v.  Nelson,  4  Rand.  (Va.)  478;  Goddin  v  Vaughn,  14  Grat. 
(Va.)  126.  Owen  v.  Pomona  L.  &  W.  Co.,  131  Cal.  530;  03  Pac.  850;  Hawes 
v.  Swanzey,  123  Iowa,  51;  98  N.  W.  586.  Hazzard  v.  Morrison  (Tex.  Civ. 
App.)  130  S.  W.  244.  Rader  v.  Neal,  13  W.  Va.  373,  where  the  vendor 
contracted  to  convey  when  he  should  have  procured  title  from  a  designated 
person. 

MKnatchbull  v.   Grueber,    1   Madd.   170. 

"Id.  1  Sugd.  Vend.    (8th  Am.  ed.)   347. 

S5Caswell  v.  Black  River  Mfg.  Co.,  14  Johns.  (N.  Y.)  453.  Ayres  v. 
Mitchell,  3  Sm.  &  M.  (Miss.)  683.  Webb  v.  Stephenson,  (Wash.)  39  Pac. 
Rep.  952.  Tripp  v.  Sieler,  38  S.  D.  321,  161  1ST.  W.  337;  Lewis  v.  Woodbine 
Sav.  Bank,  1-82  Iowa,  190,  174  N.  W.  19. 

58  Alexander  v.  Utley,  7  Ired.  Eq.  (N.  C.)  242;  McDowell  v.  McKesson, 
6  Ired.  Eq.  (N.  C.)  278.  Magennis  v.  Fallon,  2  Mol.  591.  Flight  v.  Booth, 
1  Bing.  N.  C.  370.  Houston  v.  Henley,  2  Del.  Ch.  247,  where  the  purchaser 

26 


202  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

to  deal  with  the  property,57  or  pays  part  of  the  purchase  money,58 
or  accepts  a  conveyance 5*  after  knowledge  of  the  fraud,  he  waives 
his  right  to  rescind,  and  must  look  to  his  remedy  upon  the  cove- 
nants. The  same  rule  prevails  where  fraudulent  misrepresenta- 
tions have  been  made  in  respect  to  the  value,  quality  and  situation 
of  the  purchased  estate.*0 

It  has  been  held  that  declarations  of  the  purchaser  prior  to  the 
tender  of  a  conveyance  by  the  vendor,  that  he  would  not  insist  on 

remained  in  possession  four  years  after  discovering  the  fraud.  Colyer  v. 
Thompson,  2  T.  B.  Mon.  (Ky.)  16.  Patten  v.  Stewart,  24  Ind.  332.  Negley 
v.  Lindsay,  67  Pa.  St.  226;  5  Am.  Rep.  427.  Cunningham  v.  Fithian,  2  Gilm. 
(111.)  660.  Lawrence  v.  Dale,  3  Johns.  Ch.  (N.  Y.)  23;  Masson  v.  Bovet, 
r  Den.  (N*.  Y.  i  60:  43  Am.  Dec.  651.  In  Booth  v.  Ryan,  31  Wh.  45,  the  pur- 
chaser, four  months  after  discovery  of  the  fraud,  paid  a  part  of  the  purchase 
money,  and  seven  months  later  paid  another  part  of  the  purchase  money, 
without  objecting  to  the  fraud  in  respect  to  the  title,  and  did  not  ask  for  a 
rr-.-i-.-ion  of  the  contract  until  a  suit  had  been  commenced  to  foreclose  the 
purchase  money  mortgage  eighteen  months  after  the  fraud  had  been  dis- 
covered. It  was  held  that  these  facts  constituted  a  waiver  of  the  right  to 
rescind.  Where  a  purchaser  died  eight  months  after  the  sale  without  .!i-- 
covering  the  vendor's  fraud  as  to  the  title,  and  his  heir,  within  a  year  after 
discovery  of  the  fraud',  and  four  years  after  the  sale,  filed  a  bill  to  rescind 
the  contract,  it  was  held  that  the  right  to  rescind  had  not  been  lost  or 
waived  by  delay.  Foster  v.  Gressetl,  29  Ala.  393.  In  Smith  v.  Babcock,  2 
Woodb.  &  M.  (U.  S!)  246,  a  delay  of  one  year  after  discovery  of  the  fraud 
was  held  no  waiver. 

'-''  1  Sugd.  Vend.  (14th  ed.)  252,  where  it  is  said:  "  If  a  purchaser,  instead 
of  repudiating  the  transaction,  deal  with  the  property  as  his  own,  he  i- 
Itound,  although  he  afterwards  discovers  a  new  circumstance  of  fraud,  for 
that  cau  be  considered  only  as  strengthening  the  evidence  of  the  original 
fraud,  an«I  it  cannot  revive  the  right  of  repudiation  which  has  been  OIK  e 
waived."  Campbell  v.  Finning.  1  Ad.  &  Kl.  40.  Gordon-Tiger  &  Co.  v. 
Brown,  66  Colo.  301,  138  Par.  ">]. 

14  Pollard  v.  Roger*,  4  Call  (Va.)  -r.W.  Haldane  v.  Sweet,  55  Mich.  1%. 
Lockridg.  r.  4  Scam.  (111.)  569.  Glasscock  v.  Minor,  11  Mo.  655. 

Davis  v.  Kvans,  02  Ala.  Ml  .  Cam-it  v.  Lynch,  45  Ala.  204.  A  sul.-pun-ha-er 
Nvli'i  aniline*  the  payment  of  the  original  purchase  money,  and  pays  part  of 
it  aft«-r  di-covi-ring  ot.je.  t  inns  to  the  original  vendor's  title,  has  no  remedy 
againxt  hi*  immediate  vendor,  though  the  latter  may  have  fraudulently  rep- 
mtnttd  the  title  to  be  good.  Blanchard  v.  Stone.  15  Vt.  271. 

*\>rnol  v.  Vi-riuil.  fi.T  N'.  Y.  45.  In  Patto.i  v.  Kngland,  15  Ala.  71,  it  wan 
hold  that  if  the  purchaser  accept*  a  deed  with  warranty,  lie  cannot,  sot  up 
fraud  an  a  defense  to  an  action  for  the  purchase  money.  The  inference,  how- 
ever, from  the  fact*  dated  in  the  ea*e  in  that  the  purchaser  accepted  the  con- 
veyance after  knowledge  of  the  fraud. 

"Marshall  v.  Oilman.    J7  Minn.  131;  49  N.  W.  Rep.  688. 


WAIVER  OF    OBJECTIONS    TO    TITLE.  203 

the  removal  of  an  incumbrance,  which  had  come  to  his  knowledge, 
as  a  condition  upon  which  he  would  accept  the  conveyance,  did 
not  necessarily  amount  to  a  waiver  of  his  right  to  require  that 
the  incumbrance  be  removed,  unless  it  should  appear  that  the 
situation  of  the  vendor  had  been  changed  for  the  worse  by  reason 
of  such  declarations.'1 

|  85.  WAIVER  BY  PURCHASING  WITH  NOTICE  OF  DEFECT. 
It  has  been  seen  that  if  the  purchaser  take  possession  with  notice 
of  an  incumbrance  or  defect  in  the  title,  he  will,  as  a  general  rule, 
be  deemed  to  have  waived  his  right  to  rescind  the  contract  for 
either  of  those  causes.62  A  fortiori,  if  he  purchase  knowing  the 
title  to  be  defective  or  the  property  incumbered,  will  he  be  denied 
the  right  to  rescind,63  unless  the  defect  or  incumbrance  was  con- 

w  Swan  v.  Drury,  22  Pick.    (Mass.)   485. 

"Ante,  §  81,  post,  §   246. 

89  2  Sugd.  Vend.  549;  1  id.  265;  2  Warvelle  Vend.  843.  See  cases  cited  ante, 
"Waiver  by  Taking  Possession,"  §  81  and  post,  §  247;  Anderson  v.  Lincoln, 
5  How.  (Miss.)  284;  Wiggins  v.  McGimpsey,  13  Sm.  &  M.  (Miss.)  532.  Mayo 
v.  Purcell,  3  Munf.  (Va.)  243;  Jackson  v.  Ligon,  3  Leigh  (Va,),  161;  Goddin 
v.  Vaughn,  14  Grat.  (Va.)  102.  Mills  v.  Van  Voorhis,  23  Barb.  (N.  Y.)  125; 
Keating  v.  Gunther,  10  N".  Y.  Supp.  734.  Alexander  v.  Kerr,  2  Rawle  (Pa.), 
80;  19  Am.  Dec.  616;  Walker  v.  Quigg,  6  Watts  (Pa.),  90;  31  Am.  Dec.  452. 
Rader  v.  Neal,  13  W.  Va.  373.  Bryan  v.  Osborne,  61  Ga.  51.  Home  v. 
Rogers,  110  Ga.  362;  35  S.  E.  715.  Gooding  v.  Decker,  (Colo.)  32  Pac.  Rep. 
832.  Craddock  v.  Shirley,  3  A.  K.  Marsh.  (Ky.)  288.  Turner  v.  Howell, 
21  Ky.  Law  R.  979;  53  S.  W.  643.  Davenport  v.  Latimer,  53  S.  C.  563;  31 
S.  E.  630.  Marcus  v.  Clark,  185  Mass.  409;  70  N.  E.  433.  Canton  Co.  v. 
Balto.  &  Ohio  R.  Co.,  (Md.)  29  Atl.  Rep.  821.  Wilson  v.  Riddick,  100  Iowa 
697;  69  N.  W.  1039;  Ditchey  v.  Lee,  167  Ind.  267,  78  X.  E.  972;  Behr  v. 
Hurwitz,  90  N.  J.  Eq.  110,  105  Atl.  486.  Younie  v.  Walrod,  104  Iowa,  475; 
73  N".  W.  1021,  where  the  objection  to  the  title  was  that  no  patent  for  the 
land  had  issued.  But  as  it  appeared  that  the  purchaser  knew  that  fact 
when  he  signed  the  contract,  he  was  required  to  take  the  title.  A  purchaser 
at  a  judicial  sale  who  allows  the  sale  to  be  confirmed  without  objection  for 
defects  of  title  of  which  he  had  knowledge,  must  pay  the  purchase  money, 
and  cannot  be  allowed  to  rescind,  though  he  acquires  no  valid  title.  Young 
v.  MfClung,  9  Grat.  (Va. )  336.  Where  an  auctioneer  told  a  prospective 
bidder  that  the  purchase  money  would  be  applied  to  the  discharge  of  incum- 
brances  on  the  property,  but  offered  the  property  for  sale  without  an 
announcement  to  that  effect,  it  was  held  that  a  jury  was  warranted  in  finding 
that  the  property  was  sold  free  of  incumbrances,  and  that  such  bidder  pur- 
chased with  that  understanding.  Mayer  v.  Adrian,  77  N.  C.  83.  In  Louisiana 
it  is  held  that  a  purchaser  buying  with  knowledge  of  defect  of  title  does  not 
waive  his  right  to  rescind,  unle&s  there  was  a  stipulation  in  the  contract 


•>04  MARKETABLE    TITLE    TO    REAL    ESTATE. 

templated  by  both  parties  at  the  time  of  the  purchase,  and  the 
vendor's  agreement  that  they  should  be  cured  or  removed  remain 
unperformed."  If  the  purchaser  enter  into  the  contract  with 
notice  that  he  cannot  get  a  title  beyond  a  limited  period,  he  will 
be  held  to  have  waived  any  objection  to  completion  of  the  con- 
tract on  that  account.66  And  the  implication  of  law,  in  the 
alienee  of  any  express  contract,  that  a  clear  title  was  to  be  con- 
veyed to  the  purchaser,  may  be  rebutted  by  showing  that  he  was 
aware  of  the  existence  of  incumbrances  on  the  estate  when  he 
purchased." 

No  waiver  of  a  right  to  object  to  the  title  will  be  presumed  from 

that  the  vendor  would  not  warrant  the  title,  or  that  the  purchaser  bought  at 
his  peril.  Boycr  v.  Amet,  47  La.  Ann.  721;  Hall  v.  Nevill,  3  L*.  Ann.  326. 
See  also  to  the  same  effect,  Wallach  v.  Riverside  Bank,  206  N.  Y.  434,  100 
N.  E.  50;  McCulloch  v.  Bauer,  24  N.  D.  109,  139  X.  W.  318.  It  has  been 
held  also  that  if  the"  vendor  agreed  to  convey  a  fee  simple  title  clear  of 
all  incumbrances,  it  is  no  defense  to  an  action  against  him  for  non- 
pt-rfurmance  that  the  purchaser  was  aware  of  defects  in  the  title  at  the  tame 
of  the  contract.  Godwin  v.  Maxwell,  106  Ga.  104,  32  S.  E.  114;  Foute  v. 
Klclcr,  100  Ga.  713,  35  S.  E.  1W;  Junk  v.  Barnard,  90  Ind.  137;  Jenkins  v. 
Hamilton,  153  Ky.  163;  154  S.  W.  937. 

••Ante,  "Waiver  by  Taking  Possession,"  §  81.  Jackson  v.  Ligon,  supra, 
was  a  suit  by  the  vendor  to  compel  8peciflc  performance,  and  the  defense  was 
that  the  title  was  bad..  The  vendor  replied  thfc.t  the  defendant  purchased 
with  knowledge  of  the  defective  title,  hnd  the  purchaser  admitting  that  fact, 
averred  that  by  the  contract  the  vendor  was  expressly  bound  to  make  a  good 
and  lawful  right.  Several  opinions  were  rendered  by  the  judges,  all  in  favor 
of  the  defendant  on  this  point.  The  contract  was  executory,  but  the  case 
wa#  treated  by  two  of  the  judges,  BKOOKK,  J.,  and  TUCKER,  P.,  as  if  there 
had  been  a  conveyance  with  covenant H  against  the  defects  alleged,  the  latter 
judge  saying:  "  The  case  of  Stockton  v.  Cook,  3  Munf.  (Va.)  68;  5  Am. 
Dec.  504,  very  clearly  shows  the  understanding  of  this  court  that  a  covenant 
against  ini-innbrajHfs  comprehends  known  as  well  as  unknown  incumbrancea, 
and  that  the  vendee  is  not  precluded  by  his  previous  knowledge  from  claim- 
ing the  fulfillment  of  the  covenant.  Were  it  otherwise  it  would  be  impotwible 
for  him  to  provide  for  his  security."  In  Newbold  v.  Pcalnxly  Heights  Co., 
70  M-l.  413;  17  All.  Rep.  372,  it  was  held  that  a  purchase  with  notice  of 
•n  easement  in  or  restriction  on  the  use  of  the  premises  would  not  amount 
to  &  waiver  if,  by  the  express  terms  of  the  contract,  the  purchaser  was 
entitled  to  an  estate  clear  of  all  restrictions  and  incumbrances.  See  also 
Snowden  v.  Derrick,  14  Cal.  App.  309,  111  Pac.  757. 

m  1  Sugd.  Vend.  346.    Godmn  v.  Turner,  15  Beav.  46;  3  Mcr.  64. 

"Newark  Sav.  In»t.  v.  Jones,  37  N.  J.  Eq.  449. 


WAIVER   OF    OBJECTIONS    TO    TITLB.  205 

the  fact  that  the  contract  of  sale  contains  no  provision  that  the  con- 
veyance to  be  executed  shall  contain  covenants  for  title." 

If  the  purchaser,  with  full  knowledge  of  the  imperfection  of  the 
title,  takes  a  bond  to  protect  himself  against  possible  loss,  i.  e.,  a 
title  bond,  he  of  course  waives  all  right  to  rescission.  His 
remedy  in  such  case  is  by  action  on  the  bond.68 

As  a  general  rule,  the  existence  of  an  open,  notorious  and 
visible  physical  incumbrance  upon  the  estate,  such  as  a  public 
highway,  forms  no  objection  to  the  title,  because  it  is  presumed 
that  the  purchaser  was  to  take  subject  to  such  incumbrance. 
Neither  does  such  an  incumbrance  entitle  the  purchaser  to  com- 
pensation, nor  to  an  abatement  of  the  purchase  money,  nor  to  a 
conveyance  with  a  covenant  against  the  incumbrance,  because  it 
is  presumed  that  in  fixing  the  purchase  price  the  existence  of 
the  incumbrance  was  taken  into  consideration.  A  recent  decision 
of  the  Supreme  Court  of  Judicature  in  England  thus  states  the 
rule:  "Where  it  is  obvious  that  there  is  a  right  of  way  enjoyed 
by  some  third  person,  or  by  the  public  in  general,  the  existence 
of  such  right  of  way  cannot  give  rise  to  any  objection  to  the  title, 
as,  for  example,  if  the  estate  sold  is  a  large  one  with  a  public 
highway  running  through  it,  then  it  is  obvious  that  it  was  not 
intended  to  sell  the  property  free  from  such  right  of  way,  but 
the  purchaser  would  take  subject  to  the  right  of  way."  69 

87  Speakman  v.  Forepaugh,  44  Pa.  St.  363,  the  court  saying  that  the  Penn- 
sylvania rule  that  it  is  presumed  that  a  purchaser  who,  with  knowledge  of 
a  defect  of  title,  takes  a  conveyance  without  covenants,  intends  to  run  the 
risk  of  the  defect,  has  no  application  "  to  a  mere  executory  contract  of  sale, 
a  contract  which  is  only  preparatory.  Articles  of  agreement  for  the  «ale 
of  land  are  not  intended  to  describe  minutely  the  extent  of  the  rights  to  be 
assured  to  the  purchaser.  They  rarely  undertake  to  declare  what  covenants 
the  vendor  shall  give.  They  refer  not  to  the  title  of  the  vendor  when  they 
are  executedi,  but  to  an  -assurance  afterwards  to  be  made,  it  may  be,  of  a 
right  which  the  vendor  is  expected  to  acquire  after  he  has  engaged  to  con- 
vey. There  is,  therefore,  no  presumption  that  a  vendee  by  articles  has  agreed 
to  waive  any  right  which  the  articles,  standing  alone,  would  give  him." 

68  See  post,  §  248.  Green  v.  Finucane,  5  How.  (Miss.)  542.  Baldridge  v. 
Cook,  27  Tex.  566.  Hbrne  v.  Rogers,  110  Ga.  362;  35  S.  E.  715.  Eussell  v. 
Handy,  22  Ky.  Law  R.  933;  59  S.  W.  320. 

"•  Ashburn  v.  Sewell,  L.  R.,  3  Ch.  Div.  ( 1891 )  105.  The  same  case  decides 
that  the  mere  delineation  of  a  road  on  a  map  of  the  premises  sold  will  not 
raise  a  presumption  that  the  purchaser  was  to  take  subject  to  an  easement 


206  MARKETABLE    TITLE    TO    REAL    ESTATE. 

A  species  of  rescission  of  an  executed  contract  for  the  sale  of 
lands  exists  in  those  cases  in  which  the  purchaser,  to  avoid  a  cir- 
cuity  of  actions,  is  permitted  to  detain  the  unpaid  purchase 
money  wherever  he  has  a  present  right  of  action  against  the  vendor 
on  the  covenants  in  the  conveyance;  that  is,  to  sot  up  the  defense 
of  failure  of  title  by  way  of  recoupment  in  an  action  for  the  pur- 
chase money.70  It  has  been  held  that  the  purchaser  waive-;  this 
right  by  purchasing  with  notice  of  the  defect  or  incumbrance.71 
There  would  seem  to  be  no  reasonable  objection  to  «uch  a  rule  in 
eases  where  the  purchaser  could  apply  the  purchase  money  to 
the  removal  of  the  defect  or  discharge  of  the  incumbrance,  or 
those  in  which  the  objections  to  -the  title  were  not  recognized  and 
provided  for  in  the  contract;  but  if  the  vendor  expressly  agreed 
to  remove  the  defect  or  discharge  the  incumbrance,  it  is  not  easy 
to  perceive  why  the  purchaser  should  not  be  allowed  to  detain  the 
unpaid  purchase  money,  as  he  is  permitted  to  do  in  the  case  of  an 

in  the  road  enjoyed  by  third  persons,  there  being  nothing  to  warn  the  pur- 
dttcer  that  strangers  had  a  right  to  use  the  road.  See  also,  post,  §  1-J7-. 
Hornbeck  v.  Smith,  87  Ore.  78;  168  Pac.  633.  A  railroad  is  not  a  pulilir 
highway  within  the  rule  stated  in  the  text.  Pryor  v.  Buffalo,  107  N.  V.  123. 
!«•  \.  E.  423. 

"  Post,  ch.  26. 

".Greenleaf  v.  Cook,  2  Wh.  (U.  S.)  13.  Bradford  v.  Potts,  9  Pa.  St.  37. 
Findley  v.  Homer,  9  Neb.  537;  4  N.  W.  Rep.  86.  Busby  v.  Treadwell.  24 
Ark.  457;  Worthington  v.  Curd,  22  Ark.  284,  where  it  was  said  that 
knowledge  of  a  defect  of  title  or  an  incumbrance  was  no  objection  to  recovery 
upon  the  covenants  of  the  deed  in  a  court  of  law,  but  was  ground  for  equity 
to  refuse*  relief  out  of  the  unpaid  consideration,  because  it  appears  that 
with  Mich  knowledge  the  purcha«er  chose  to  rely  upon  tin-  covenants,  and  to 
their  legal  effect  he  will  be  remitted.  See  also  Stone  v.  Buckner,  20  Mis*.  73. 
Beck  v.  Simmons,  7  Ala.  76.  Twohig  v.  Brown,  (Tex.)  19  S.  \V.  Hep.  768. 
Sec  also  po»t,  f  271.  In  case  of  a  defect  of  title  as  to  part  of  the  premises, 
th«-  purchaser  waives  any  right  of  rescission  he  m«y  have  by  act-opting  a 
conveyance  «»f  the  residue.  Harrison  v.  Deramus,  33  Ala.  463.  If  a  purchaser 
accepts  a  warranty  deed  with  full  knowledge  that  an  ejectment  suit  is  pomi- 
ins/  for  a  imall  portion  of  the  land,  he  will  be  deemed  to  have  waived  tlio 
right  to  in«i»t  upon  being  put  in  possession  of  the  disputed  portion,  and 
to  have  taken  tin-  n-k  of  gaining  or  losing  the  same,  ami.  therefore,  he  can- 
in.t  detain  the  purchase  money  to  the  extent  of  the  value  of  the  land  in 
di-put,-.  .MIIIM.II  v.  Jarre*,  14  W.  Vfc.  23»i.  It  i-  dinVnlt  t..  remn.-ilo  t  In- 
decision with  the  rule  that  the  purchaser'*  km>\\  ledge  ..f  the  e\i-ti-nn-  of 
defects  in  the  title  to  the  premises  will  not  affect  his  right  to  recover  for  a 
breach  of  the  covenants  for  title,  or  to  detain  the  purchase  money  whore  he 


WAIVER   OF    OBJECTIONS    TO    TITLE.  207 

unexecuted  contract ; 72  especially  when  it  is  remembered  that 
knowledge  of  the  defect  or  incumbrance  does  not  affect  the  pur- 
chaser's right  to  recover  on  the  vendor's  covenants,73  and  that  the 
detention  of  the  purchase  money  is  no  more  than  the  assertion  of 
this  right  in  another  form. 

It  has  been  held  that  the  purchaser  will  be  charged  with  notice 
of  the  defective  title  wherever,  with  common  or  ordinary  diligence, 
he  might  have  informed  himself  of  the  objection,74  as  where  it 
consists  of  an  incumbrance  of  record  75  or  of  a  fact  appearing  from 
the  instruments  under  which  the  title  is  derived  and  which  the 
purchaser  is  presumed  to  have  examined.76  The  better  opinion, 
however,  seems  to  be  that  the  doctrine  of  constructive  notice  from 
the  public  records  has  no  application  to  questions  which  arise 
between  vendor  and  purchaser.77 

§  85-a.  Contract  to  convey  free  of  incumbrances.  If  the  writ- 
ten contract  between  the  parties  expressly  provide  that  the  vendor 
shall  convey  the  premises  free  from  incumbrances,  it  is  of  course 
immaterial  that  the  purchaser  had  notice  at  the  time  of  the  con- 
tract that  there  was  an  incumbrance  on  the  property.  He  has  a 
right  to  insist  upon  the  terms  of  his  contract.78  It  is  conceived, 

is  entitled  to  substantial  damages  for  such  breach.  The  very  object  of 
covenants  for  title  is  to  protect  him  as  much  against  known  as  unknown 
defects  of  title. 

"Post,  ch.  24. 

"Stockton  v.  Cook,  3  Munf.   (Va.)   68;  5  Am.  Dec.  504. 

74Steele  v.  Kinkle,  3  Ala.  (X.  S.)   352. 

75Steele  v.  Kinkle,  supra.  Wiggins  v.  McGimpsey,  13  Sm.  &  M.  (Miss.) 
532. 

78  In  Wagner  v.  Perry,  47  Hun.  (N.  Y.),  516,  it  was  held  that  the  vendor 
was  not  in  fault  in  failing  to  mention  the  fact  that  a  map  had  been  filed  by 
the  public  officials  increasing  the  width  of  a  street  which  bounded  the  prop- 
erty. 

"Post,  ch.  11,  §  104.    Nichol  v.  Nichol,  4  Baxt.   (Tenn.)    145. 

7S  Weiss  v,  Binnian,  178  111.  241,  52  N.  E.  969.  The  incumbrance  in  this 
case  was  an  easement  —  an  ice  cutting  privilege  previously  conveyed  by  the 
vendor  to  a  third  person.  The  decision  would  be  more  satisfactory  if  the 
incumbrance  had  been  one  of  a  kind  which  the  vendor  could  have  removed,  as 
a  matter  of  right.  It  might  then  have  been  plausibly  contended  that  notice 
of  the  incumbrance  did  not  affect  the  purchaser's  right  to  recind,  because 
it  was  the  intent  of  the  parties  that  the  incumbrance  should  be  removed. 


208  MARKETABLE    TITLE    TO    REAL    ESTATE. 

however,  that  such  an  agreement  should  be  limited  to  those 
incumbrances  which  the  vendor  has  the  right  to  remove,  such  as  a 
mortgage,  judgment,  or  other  pecuniary  lien.  If  the  incumbrance 
be  of  a  kind  which  the  vendor  cannot  remove  as  a  matter  of 
right,  such  as  an  easement,  it  is  not  to  be  presumed  that  the  pur- 
chaser, knowing  the  existence  of  the  easement,  intended  the 
insertion  of  a  vain  provision  in  the  contract.79 

"Pryor  v.  Buffalo,  197  N.  Y.  123,  90  N.  E.  423;  Bacot  v.  Fessenden,  119 
N.  Y.  Supp.  464,  64  Misc.  422;  Goodman  v.  Schwab,  121  N.  Y.  Supp.  69,  136 
App.  Div.  492. 


CHAPTER  IX. 

TENDER  OF  PERFORMANCE  AND  DEMAND  FOR  DEED. 

TENDER  BY  PURCHASER.     §   86. 
EXCEPTIONS.      §   87. 
TENDER  BY  VENDOR.     §   88. 
PLEADINGS.     §   89. 

|  8,6.  GENERAL,  RULE.  Few  contracts  for  the  sale  of  lands  are 
completed  at  the  time  the  vendor  agrees  to  sell  and  the  purchaser 
agrees  to  buy.  Ordinarily  the  final  execution  of  the  contract  is 
postponed,  at  the  instance  of  the  purchaser,  until  some  day  in  the 
future,  either  that  he  may  have  time  in  which  to  examine  the  title 
or  for  his  convenience  and  accommodation  in  respect  to  the  pay- 
ment of  the  purchase  money.  And  sometimes  performance  is  post- 
poned at  the  instance  of  the  vendor,  either  because  he  is  not  ready 
to  deliver  possession  or  because  he  desires  time  in  which  to  remove 
an  objection  to  the  title.  Under  these  circumstances  the  respective 
covenants  of  the  parties  to  pay  the  purchase  money  and  to  execute 
a  conveyance  are  either  mutual,  concurrent  and  dependent,  that  is, 
to  be  performed  at  one  and  the  same  time ;  or,  independent,  in 
which  case  full  performance  by  one  of  the  parties  may  be  exacted 
as  a  condition  precedent  to  performance  by  the  other.  Hence, 
it  follows  that  whenever,  by  the  terms  of  the  contract,  the  payment 
of  the  purchase  money  and  the  conveyance  of  a  good  title,  are 
dependent  and  concurrent  acts,  the  purchaser  must  pay,  or  offer  to 
pay,  the  purchase  money  in  full,  demanding  at  the  same  time  that 
the  vendor  shall  execute  and  deliver  to  him  a  deed  conveying  an 
indefeasible  estate  in  the  premises.1  The  vendor  must  be  given  an 

'Post,  §  253.  Chitty  Cont.  (10th  Am.  ed.)  332;  1  Sugd.  Vend.  (8th  Am. 
ed.)  241;  2  Dart  Vend.  (4th  ed.)  877.  Poole  v.  Hill,  6  M.  &  W.  835;  Baxter 
v.  Lewis,  For.  Ex.  61;  Mattock  v.  Kinglake,  10  Ad.  &  El.  50.  Clemens  v. 
Loggins,  1  Ala.  622.  Smith  v.  Henry,  2  Eng.  (Ark.)  207;  44  Am.  Dec.  540; 
Byers  v.  Aikin,  5  Ark.  419;  Drennere  v.  Boyer,  Ark.  497.  Dennis  v.  Stras- 
burger,  89  Cal.  583;  26  Pac.  Rep.  1070.  Poheim  v.  Myers,  9  Cal.  App.  81, 
98  Pac.  65;  Griesemer  v.  Hammond,  18  Cal.  App.  535;  123  Pac.  818;  Ishmael 
v.  Parker,  13  111.  324;  Headley  v.  Shaw,  39  111.  384;  Warren  v.  Richmond, 
53  111.  52;  Cronk  v.  Trumble,  66  111.  428.  Sheets  v.  Andrews,  2  Bl.  (Ind.) 
274;  Browning  v.  Clymer,  1  Ind.  579;  Axtel  v.  Chase,  77  Ind.  74.  Stockton 
v.  George,  5  How.  (Miss.)  L.  172;  Johnston  v.  Beard,  7  Sm.  &  M.  (Miss.) 

27  F2091 


1>1U  MAKKKTABLK    TITI.K    TO    KK.VI,    KSTATE. 

opportunity  to  perform  his  contract  before  be  can  be  put  in 
default,  and  in  an  action  maintained  against  bim  for  breach  of 
tbe  contract,  or  to  recover  back  tbe  purcbase  money,  or  to  com- 
ix;! specific  ]>erforiiiunce  of  the  contract.  The  covenants  being 
dependent  tbe  purchaser  must,  as  a  general  rule,  tender  the  pur- 
chase money,  whether  he  wishes  to  rescind  the  contract,  or  to 
aftirrn  it  by  action  to  recover  damages  for  the  breach.2  Gen- 
erally these  agreements  will  be  construed  to  be  dependent,  unless 
a  contrary  intention  apj>ears.  The  question  whether  they  are  or 
are  not  dependent  will  be  determined  by  the  manifest  intention 
of  the  parties  and  not  from  any  particular  word  or  phrase  which 
the  contract  may  contain.*  Parol  evidence  of  the  surrounding 
circumstances  will  be  admitted  to  show  whether,  at  the  time  of 
the  execution  of  a  written  contract  for  the  sale  of  lands,  it  was  the 
intention  of  the  parties  that  the  payment  of  the  purchase  money 
on  the  one  part  and  the  execution  of  a  conveyance  on  the  other 

217;  SUndifer  v.  David,  12  Sm.  &  Ml  (Miss.)  48;  Hudson  v.  Watson,  26  Miss. 
357;  Hill  v.  Samuel.  31  Miss.  307.  Hudson  v.  Swift,  20  Johns.  (N.  Y.)  23; 
Raudabaugh  v.  Hart,  fll  Ohio  St.  73;  55  N.  E.  214.  Guthrie  v.  Thompson. 
1  Oreg.  353.  Baura  v.  Dubois,  43  Pa.  St.  260;  Poul^on  v.  Elli»,  60  Pa.  St. 
134;  Irvin  v.  Bleakley,  67  Pa.  St.  24.  Shouse  v.  Doane,  39  Fla.  95;  21  So. 
807.  A  purchaser  neeking  to  enjoin  the  collection  of  the  purchase  money 
on  the  ground  of  defect  of  title  and  non-execution  of  a  conveyance,  must 
aver  a  tender  of  the  purchase  money.  Harris  v.  Bolton,  8  Miss.  167.  An 
abandonment  of  the  possession  by  the  purchaser,  without  a  tender  of  the 
purchase  money,  in  no  defense  to  an  action  for  the  purchase  money,  demons 
V.  Logging  1  Ala.  622.  A  purchaser  rescinding  the  contract  for  defect  of 
title  should  tender  payment  and  demand  a  conveyance,  or  take  some  other 
step  *ho\vinjr  an  intention  to  give  up  his  bargain.  Hunter  v.  Goudy,  1  Ohio, 
449.  Where  a  vendor  has  received  the,  purchase  money,  and  no  time  has  Ix-en 
specified  in  which  the  deed  is  to  be  made,  there  should  !><•  a  demand  for  a 
deed  and  a  refusal  to  execute  it,  before  a  suit  to  recover  back  the  purchase 
money  can  be  maintained.  McNamara  v.  Pengilly,  64  Minn.  543;  59  N.  W. 
Rep.  1055.  Kime  v.  Kime,  41  111.  397.  Walters  v.  Miller,  10  Iowa,  427. 
Where  the  deed  in  to  be  made  by  executors,  no  such  action  van  be  maintained 
before  tlie  exci  utors  have  qualified.  Hyde  v.  Keller,  10  Wash.  5#6;  39  Pac. 
Rep.  249.  The  failure  of  the  vendor  to  tender  an  abstract  of  title  provided 
for  in  the  contract,  doe*  not  excuse  the  vendee,  seeking  specific  performance 
of  the  contract,  from  the  duty  of  making  a  tender  of  the  purchase  money. 
KeWy  v.  Crowther,  162  f.  S.  404;  16  Sup.  Ct.  Rep.  808. 

•Inrin  v.  Bleaklry,  67  Pa.  St.  24,  28.  Thoroa*  v.  Walden,  57  Fla.  234, 
48  Ho.  746. 

'I  Hugd.  Vend.  (8th  ed.)  362  (239);  Dart's  Vend.  (Waterman's  Notes) 
449.  Noyen  v.  Brown,  (Minn.)  171  N.  W.  802. 


TENDER   OF   PERFORMANCE   AND   DEMAND   FOR   DEED.  211 

were  to  be  mutual  and  concurrent  acts.4  Where  neither  the  con- 
tract nor  the  circumstances  of  the  case  show  the  intention  of 
the  parties  in  this  respect,  the  law  implies  that  payment  of  the 
purchase  money  and  delivery  of  the  conveyance  shall  be  concurrent 
acts.5  In  cases  of  doubt  the  agreements  will  be  construed  to  be 
dependent.6  The  covenants  are  not  dependent  and  concurrent 
where  the  vendor  is  not  to  convey  until  after  the  purchase  money 
has  been  paid.7  As  a  general  rule,  where  the  contract  provides 
that  the  vendor  will  furnish  an  abstract  of  title  on  payment  of 
the  balance  of  the  contract  price,  the  tender  of  the  abstract  and 
of  the  purchase  money  are  dependent  and  concurrent  acts,  and 
both  must  transpire  before  either  party  can  be  put  in  default.8 
The  mere  failure  of  the  vendor  to  tender  a  conveyance  and 
demand  payment  of  the  purchase  money  on  the  day  fixed  for  com- 
pleting the  contract  will  not  excuse  a  failure  of  the  purchaser  to 
tender  performance  on  his  part,  unless  it  also  appear  that  the  ven- 
dor had  no  title  and  was  unable  to  convey.  The  mere  neglect  of 
the  parties  to  perform  the  contract  at  the  appointed  time  cannot, 
without  anything  more,  amount  to  a  rescission.9  If  the  vendor  be 
absent  from  his  residence  or  usual  place  of  abode  when  the  pur- 
phase  money  becomes  due,  a  tender  to  some  person  left  in  charge 
there  will  be  sufficient ;  a  personal  tender  to  the  vendor  is  not  abso- 
lutely necessary.10  It  has  also  been  held  that  the  expression 
"  tender  of  the  purchase  money,"  as  used  in  this  connection,  does 

4Sewall  v.  Wilkins,  14  Me.  168.  This  was  an  action  by  the  purchaser  on 
a  title  bond  executed  by  the  vendor.  Testimony  was  admitted,  over  the 
objection  of  the  plaintiff,  to  show  that  he  (the  plaintiff,  purchaser)  knew  at 
the  time  of  the  purchase  that  there  was  a  technical  objection  to  the  title 
which  could  probably  not  be  removed  precisely  at  the  time  fixed  for  com- 
pleting the  contract.  "  The  law,"  said  WESTON,  C.  J.,  "  is  well  settled  that 
whether  the  acts  to  be  performed  by  the  parties  respectively  in  a  covenant 
or  agreement  are  to  be  regarded  as  mutual,  dependent,  concurrent  or  otherwise, 
is  to  be  determined  by  their  intention,  apparent  from  the  written  evidence  of 
what  has  been  agreed,  in  connection  with  the  subject-matter  to  which  it  is 
to  be  applied." 

5  Rushton  v.  Campbell,  94  Neb.  141,  142  N.  W.  902. 

•Ink  v.  Rohrig,  23  S.  D.  548;  122  N.  W.  594. 

TWard  v.  James,  84  Oreg.  375,  164  Pac.  370. 

"Kessler  v.  Pruitt,  14  Idaho  175,  93  Pac.  965. 

•Townsend  v.  Tufts,  95  Cal.  257;  30  Pac.  Rep.  528. 

"Smith  v.  Smith,  25  Wend.  (N.  Y.)  404.  Here  a  tender  to  the  son  of  the 
vendor  at  her  home,  she  being  absent,  was  held  sufficient. 


21li  MAKKKTABI.F.    TITLK    TO    UKAL    KSTATK. 

not  mean  such  a  tender  as  is  required  to  stop  interest  on  a  debt; 
it  means  a  readiness,  willingness  and  ability  to  pay,  accompanied 
bv  notice  thereof  to  the  other  party.11  So,  also,  tender  of  perform- 
ance by  the  vendor  does  not  mean  in  every  case  the  actual  produc- 
tion and  tender  of  a  deed  ;  if  the  purchaser  himself  does  not  tender 
jK'rformanee,  it  is  sufficient  for  the  preservation  of  the  rights  of 
the  vendor  that  he  be  able  and  willing  to  execute,  and  offers  to 
execute  and  deliver,  such  a  conveyance  as  the  contract  requires.12 
If  the  pun-baser  tenders  the  purchase  money  there  is  no  obligation 
on  him  to  keep  the  tender  good,  where  the  vendor  has  failed  to 
furnish  an  abstract  of  title  showing  the  property  free  of  incum- 
brances,  required  by  the  contract.11 

Tender  of  the  purchase  money  is  not  invalidated  by  being 
coupled  with  a  demand  for  performance  on  the  part  of  the 
vendor." 

§  87  EXCEPTIONS.  The  rule  which  requires  a  tender  of  the 
purchase  money  and  demand  of  a  deed  on  the  part  of  the  pur- 
chaser docs  not  apply  where  the  vendor's  abstract  shows  a  bad 
title,15  or  where  the  inability  of  the  vendor  to  make  a  good  title 

"  Smith  v.  Lewi*.  20  Conn.  110.  Clark  v.  Weis,  87  Til.  438;  29  Am.  Rep. 
60.  Hi wtli  v.  SafFold.  46  Ga.  278.  Ludiitti  v.  Frost,  (Cal.)  65  Pao.  969.  It 
-.•.•in-  that  an  averment  of  ability  and  willingness  to  pay  on  tender  of  n 
pood  title  is  HiimVient.  Smith  v.  Holier t MOD.  11  Ala.  840.  But  see  Knplander 
v.  Rofjer*,  41  Cal.  420,  where  it  wan  said  that  the  purchaser  must  prodii^r 
and  ufTer  to  jmy  the  purchase  money. 

*  Well*  v.  Day,  124  Mas*.  138.     Teal  v.  I.anpdale,  78  Ind.  330. 

"HiitrhiiiHon  v.  Coonley,  209  111.  437;  70  X.  E.  680. 

MAl,»ern  v.  Karrell,  117  N".  Y.  Supp.  706;   133  App.  Div.  278. 

"Pout,  f  194.  1  Supl.  Vend.  (8th  ed.)  367;  2  id.  212;  Dart  Vend. 
(Gould1*  Am.  «!.»  504.  510.  Seward  v.  \V ilk-ode,  5  East,  198;  Knight  v. 
Crocked.  1  K*p.  1S9-.  Wilmot  v.  Wilkinson,  6  B.  &  C.  506.  Johnson  v. 
U.llin..,  17  Ala.  318;  GarnHt  v.  Y«>.  17  Ala.  74;  Bed«?ll  v.  Smith,  37  Ala. 
610.  Lawranrr  v.  Taylor,  "i  Hill  (X.  Y.)  107:  Holmes  v.  Holmes,  12  Barb. 
(X.  Y.)  137;  K.mter  v.  Herkimer  Mfp.  Co.,  12  Barb.  (N.  Y.)  352;  Spauldinjr 
v.  Fieri*.  86  Hun  (X.  Y.)  17;  Glenn  v.  Konsler,  88  Hun,  (X.  Y.)  74;  34 
N.  Y.  Sup]).  608:  HiggitM  v.  Englrton,  155  X.  Y.  466;  50  N.  K.  287; 
Hrokaw  v.  Duffy,  165  X.  Y.  391;  59  X.  E.  196;  Washington  v.  Mining  Co.. 
(Trx.  Civ.  App.)  67  S.  \V.  459.  Omaha  v.  Omaha  Water  Co.,  192  Fed. 
246.  112  C.  C.  A.  504.  English  v.  Plaster  Co.,  192  Fed.  717;  Lathrop  v. 
Colllrrir*  Co..  70  W.  Va.  58.  73  S.  K.  299;  Wheeling  Cr.  Gas  Co.  v.  Elder, 
54  W.  Va.  335,  45  8.  E.  3fi7. 


TENDER  OF  PERFORMANCE  AND  DEMAND  FOR  DEED.     213 

is  so  apparent  that  a  tender  and  demand  would  be  superfluous;16 
as  where  the  premises  have  been  recovered  from  the  purchaser 
by  one  claiming  under  a  paramount  title,17  or  under  an  incum- 
brance  created  by  the  vendor,18  or  where  the  vendor  has  conveyed 
away  the  premises  to  a  third  person ; 19  or  where  he  has  executed 
a  declaration  that  he  holds  the  premises  in  trust;20  or  where  the 
sale  was  by  agent  and  the  principal  has  repudiated  the  contract.21 
If  the  contract  provide  that  the  vendor  shall  show  a  good  title  as 
a  condition  precedent  to  the  payment  of  the  purchase  money,  the 
purchaser  need  not  tender  the  purchase  money  and  demand  a 
conveyance  before  maintaining  his  action,  unless  the  good  title 

4'Magee  v.  McMillan,  30  Ala.  421;  Griggs  v.  Woodruff,  14  Ala.  9;  Smith  v. 
Robertson,  23  Ala.  324.  Holmes  v.  Holmes,  12  Barb.  (N.  Y.)  137.  Blann  v. 
Smith,  4  Bl.  (Ind.)  517;  Bowen  v.  Jackson,  8  Bl.  (Ind.)  203;  Carpenter  v. 
Lockhart,  1  Ind.  434.  Edmonds  v.  Cochran,  12  Iowa,  488;  Primm  v.  Wise 
(Iowa),  102  N".  W.  427.  Baynes  v.  Bernhard,  12  Ga.  150.  Reed  v.  Witcher, 
23  Cal.  App.  136,  137  Pac.  294;  Janulewycz  v.  Quagliano,  88  Conn.  60,  89 
Atl.  897;  Sutheff  v.  Marusca,  57  Wash.  102,  106  Pac.  632;  Sachs  v.  Owings, 
121  Va.  162,  92  S.  E.  997;  Russell  v.  Crowley,  132  N.  Y.  Supp.  185,  147  App. 
Div.  361. 

"Kerst  v.  Cinder,   1   Pittsb.    (Pa.)    314. 

^Buchanan  v.  Lorman,  3  Gill  (Md.),  51.  Delavan  v.  Duncan,  49  N.  Y. 
485.  So,  where  the  premises  have  been  sold  under  an  incumbrance  which 
the  vendor  engaged  to  remove.  Way  v.  Raymond,  16  Vt.  371. 

19  2   Sugd.  Vend.    (8th  Am.   ed.)    212    (516).     Post,   §   253.     Sir  Anthony 
Main's  Case,  5  Coke's  Rep.  211.     Wilhelm  v.  Fimple,  31   Iowa,  131;   7  Am. 
Rep.   117.     Nesbitt  v.   Miller,   125   Ind.    106;    25  N.   E.   Rep.   148.     Smith  v. 
Rogers,   42   Hun    (N.   Y.),   110.     Baun   v.   Dubois,  43  Pa.   St.   260;    Irvin   v. 
Bleakley,  67  Pa.  St.  24;   Cash  v.  Meisenheimer,  53  Wash.  576,  102  Pac.  429. 
In  Sons  of  Temp.  v.  Brown,  9  Minn.   157,  it  was  held  that  a  tender  of  the 
purchase   money   might  be   made   to   the  grantee   of   the   vendor,   he   having 
notice  of  the  purchaser's  rights.     In  California  it  has  been  held  in  several 
cases  that  a  conveyance  by  the  vendor  to  a  third  person  before  the  day  fixed 
for  performance   of  the  contract  of   sale,   does  not   entitle   the  purchaser   to 
treat  the  contract  as  abandoned  or  rescinded  before  the  time  of  performance 
arrives,  the  court  saying  that  one  may  sell  land  which  he  does  not  own,  and 
yet  l>e  able,  when  the  time  of  performance  arrives  to  convey  a  good  title. 
Joyce  v.  Shafer,  97  Cal.  335;  Shively  v.  Land  Co.,  99  Cal.  259;  33  Pac.  848; 
Garberino  v.  Roberts,   109  Cal.   125;   41  Pac.  857. 

20  Seiberling  v.  Lewis,  93  111.  App.  549. 

21  Where  the  sale  Is  by  an  agent  the  purchaser  is  entitled  to  a  conveyance 
from  the  principal,  and  if  the  principal  refuse  to  convey  the  purchaser  may 
recover  back  the  purchase  money  without  making  a  tender  or  showing  readi- 
ness to  perform  the  contract.     Bell  v.  Kennedy,  100  Pa.  St.  215. 


214  MAKKETAHLK    TITLE    TO    HEAL    ESTATE. 

be  shown."  An  apparent  contradiction  is  involved  in  the  two 
propositions  that  the  purchaser  need  not  tender  the  purchase 
money  and  demand  a  tleed  when  the  vendor's  abstract  shows  a  bad 
title,  and  that  the  vendor  is  entitled  to  a  reasonable  time  in  which 
to  remove  incumbrances  and  objections  to  the  title,  unless  the 
first  proposition  is  strictly  limited  to  those  cases  in  which  the 
defect  or  incumbrance  is  incapable  of  removal,  so  that  a  tender 
would  be  utterly  vain  and  nugatory.21  If  the  purchaser  seeks 
to  rescind  the  contract,  or  to  recover  damages  against  the  vendor 
for  non-performance,  it  seems  to  be  the  better  opinion  that  the 
mere  existence  of  an  incumbrance  upon  the  property  will  not 
excuse  him  from  performing  or  tendering  ]>erformanee  on  his 
part,  if  the  incumbrance  can  be  discharged  out  of  the  purchase 
money.  The  vendor  should  be  given  an  opportunity  to  remove 
the  incumbrance.24  Hut  there  are  cases  in  which  the  contrary  view 
has  lieen  taken.*5  If,  however,  in  a  case  in  which  the  estate  is 

"1  Sugd.  Vend.  (8th  Am.  ed.)  363  (239).  In  Davis  v.  Real  Estate  Co., 
103  Mo.  App.  328,  143  S.  W.  1108,  it  was  held  that  an  offer  by  the  pur- 
chaMT  to  perform,  without  tendering  the  purchase  money,  is  sufficient  where 
the  vendor  is  unable  to  convey  a  clear  title. 

n  Read  v.  Walker,  18  Ala.  323,  whore  it  was  said  that  if  the  vendor  has  no 
title,  and  cannot  procure  or  auute  one  to  be  made,  the  law  does  not  impose 
on  the-  purchaser  the  useless  ceremony  of  preparing  and  tendering  a  deed 
before  he  can  apply  4o  a  court  of  equity  for  a  rescission  of  the  contract,  since 
he  would  not  be  bound  under  such  circumstances  to  accept  the  deed,  although 
the  vendor  should  lie  willing  to  execute  it. 

"Post.  I  308.  2  Sup!.  Vend.  (Sth  Am.  ed.)  25  (425),  where  it  is  said  that 
an  incumbrance  is  no  objection  to  the  title  if  the  incumbrancer  can  be  com- 
pelled to  join  in  the  conveyance.  In  Snyder  v.  Betker,  159  Mo.  App.  325.  140 
S.  W.  321,  it  was  held  thnt  an  incumbrance  of  $1,000  and  tax-bills  on  the 
property,  did  not  relieve  the  purchaser  from  the  obligation  to  tender  the 
purcha»c  money. 

"Morange  v.  Morris,  34  Barb.  (X.  V.I  311;  affd.,  32  How.  TV.  (X.  Y.)  178, 
where  it  was  MI  id  to  be  the  duty  of  the  vendor  to  remove  incumbrances  Itefore 
the  time  fixed  for  completing  the  contract.  The  purchaser  was  permitted 
to  recover  In-  depoait  and  the  costs  of  examining  the  title.  Ilewison  v. 
Hoffman,  4  N*.  Y.  Supp.  621.  It  has  wince  been  held  in  thin  Stat<>  that  tho 
exintcnce  of  an  incumbrance  does  not  relieve  the  purchaser  from  the  obliga- 
tion to  tender  the  purchase  money.  Ziehen  v.  Smith,  148  N.  Y.  558;  42 
N*.  E.  1080;  Higj-ins  v.  Knglrton,  155  N'.  Y.  466;  50  X.  E.  287:  Campbell  v. 
I'ruym-,  30  X.  Y.  Supp.  5.18;  fi  App.  Div.  554;  Keitel  v.  Zimmerman,  43  X.  Y. 
Supp.  070;  10  Misc.  5K1;  Marshall  v.  Weninger,  46  X.  Y.  Supp.  670;  20 
Mi«w.  527;  Minor  v.  Hilton.  44  X.  Y.  Supp.  155;  15  App.  Div.  56;  Daly  v. 
llruen.  S|  X.  Y.  Supp.  071:  *»S  App.  Div.  263. 


TENDER  OF  PERFORMANCE  AND  DEMAND  FOR  DEED.    215 

incumbered,  the  purchaser  seeks  not  a  rescission,  but  specific 
performance  of  the  contract,26  or  if  he  sues  to  recover  liquidated 
damages  for  a  breach  of  the  contract,  it  seems  that  the  purchaser 
loses  no  rights  by  failing  to  tender  performance.27  No  duty 
devolves  upon  the  purchaser  to  tender  the  purchase  money  and 
demand  a  conveyance  in  a  case  in  which  the  acts  and  conduct 
of  the  vendor  himself  show  an  intent  to  rescind  the  contract,28 
e.  g.,  where  the  vendor  has  expressly  notified  the  purchaser  that 
he  will  not  execute  a  conveyance,29  or  receive  the  purchase  money,30 
or  has  expressly  repudiated  the  contract.31  But,  obviously,  this 
principle  does  not  apply  where  the  vendor,  acting  in  good  faith, 
has  declared  a  forfeiture  of  the  contract  by  reason  of  the  failure 
of  the  purchaser  to  perform  at  the  appointed  time.32 

26Kerr  v.  Purdy,  50  Barb.   (N.  Y.)  24. 

"Karker  v.  Haverley,  50  Barb.  (N.  Y.)  79.  In  this  case  the  purchaser 
tendered  the  cash  payment,  but  refused  to  execute  a  bond  and  purchase- 
money  mortgage  for  the  deferred'  payments  upon  the  ground  that  the  prop- 
erty was  incumbered.  The  vendor  then  .brought  an  action  to  recover  $600 
liquidated  damages.  Judgment  was  rendered  for  the  defendant.  See  also 
N.  Wyo.  Land  Co.  v.  Butler,  252  Fed.  971,  164  C.  C.  A.  479. 

28Mathison  v.  Wilsorr,  87  111.  51.  Sims  v.  Boaz,  19  Miss.  318..  Drew  v. 
Pedlar,  87  Cal.  443;  25  Pac.  Rep.  749.  Buchanan  v.  Lorman,  3  Gill.  (Md.), 
51.  Thus,  where  the  purchaser  had  paid  part  of  Ahe  purchase  money,  and 
a  conveyance  had  been  executed  in  escrow,  and  afterwards  the  vendor 
reclaimed  the  escrow  from  the  holder  and  denied  the  validity  of  the  contract 
with  intent  to  rescind  the  same,  it  was  held  that  the  purchaser  might  recover 
back  the  purchase  money  paid  without  showing  a  tender  of  that  which 
remained  unpaid,  and  demand  of  the  deed.  Merrill  v.  Merrill,  95  Cal.  334; 
30  Pac.  Rep.  542. 

29  Traver  v.  Halstead,  23  Wend.  (N.  Y.)  66;  Foot  v.  West,  1  Den.  (N.  Y.) 
544.     Remy  v.   Olds,  88  Cal.   537.     Comstock  v.   Lager,  78  Mo.  App.   390; 
Alpern  v.  Farrell,  117  N.  Y.   Supp.   706,   133  App.  Div.   278.     It  has  been 
said  that  if  the  vendor  denies  the  obligation  of  the  contract,  or  places  him- 
self  in  such  a  position  that  it  appears  that  if  a  tender  of  the  price  were 
made  it  would  be  refused,  the  purchaser  need  make  no  tender  of  payment  or 
demand  of  a  conveyance  in  order  to  preserve  his  rights-.     2  Warvelle  Vend. 
774,  citing,  for  the  first  proposition,  Brock  v.  Hidy,  13  Ohio  St.  306,  and  for 
the  second,  Deichman  v.  Deichman,  49  Mo.  107.     Brown  v.  Eaton,  21  Minn. 
409.    See,  also,  Quimby  v.  Lyon,  63  Cal.  394.    So,  no  tender  is  necessary  when 
the  vendor  is  proceeding  on  his  legal  title  against  the  purchaser.     Irvin  v. 
Bleakley,  67  Pa.  St.  24,  28,  dictum. 

30  Stone  v.  Sprague,  20  Barb.   (N.  Y.)   509;  Maupai  v.  Jackson,  118  N.  Y. 
Supp.  513. 

31  Cabrera  v.  Payne,   10  Cal.  App.   675,   103  Pac.   176. 
3aBoger  v.  Bell,  84  Wash.  131,  146  Pac.  179. 


216  MAKKE1AHLE    TITLE    TO    KEAL    ESTATE. 

Mere  inability  of  the  vendor  to  make  a  perfect  title  will  not, 
under  all  circumstances,  relieve  the  purchaser  of  the  duty  of  ten- 
dering the  purchase  money  and  demanding  a  conveyance,  as  where 
the  objection  to  the  title  is  an  incumbrance,  lien,  or  charge,  that 
may  be  removed  by  application  of  the  purchase  money.83 

The  time  fixed  for  performance,  having  passed  without  an 
offer  by  either  party  to  perform,  becomes  indefinite,  and  neither 
party  can  thereafter  put  the  other  in  default  without  an  offer  to 

perform.14 

R  88.   DUTY    OF    THE    VENDOB    TO    TENDER    PERFORMANCE. 

If,  under  the  contract,  the  payment  of  the  purchase  money 'and  the 
conveyance  of  a  good  title  be  concurrent  and  dependent  acts,  the 
purchaser  may  detain  the  purchase  money  until  such  a  conveyance 
i«  tendered  to  him,  or  until  the  vendor  shall  show  himself  ready, 
able  -and  willing  to  execute  such  a  conveyance  as  the  purchaser 
shall  devise.  The  vendor  must  fully  perform  or  tender  per- 
formance on  his  part  before  he  can  put  the  purchaser  in  default ;  M 

"In  Hartley  v.  James,  50  N.  Y.  38,  the  court  said:  "Mere  defect  of  title 
in  the  vendor  and  a  present  inability  to  give  such  title  as  the  contract  calls 
for,  may  not,  in  all  caws,  and  under  all  circumstances,  dispense  with  a 
tender  of  payment  and  a  demand  of  a  conveyance  hy  the  vendee  in  order  to 
entitle  the  latter  to  maintain  an  action  for  the  money  already  paid,  or  to 
defend  an  action  for  the  .purchase  money,  if  the  payment  becomes  daie  before 
a  deed.  i»  to-be  given  by  the -terms  of  the  contract.  Under  some  cirmmKtances 
the  court  will  not  hold  a  contract  void  by  reason  of  the  inability  of  the, 
«»eller  to  make  a  perfe«<t  title,  but  will  put  the  purchaser  to  a  tender  of  pay- 
ment and  a  demand  of  the  deed,  to  the  end  that  the  seller  may  make  his 
title  good."  Citing  Harrington  v.  Hi-jgins,  17  W.  R.  376;  Green  v.  Green, 
0  Cow.  (X.  Y.)  46;  Greenly  v.  Cheevers,  9  Johns.  (X.  Y.)  126. 

••  Ready  v.  Investment  Co..  64  Wanh.  422,  116  Pac.  1093. 

"Pout,  f  253.  1  Sugd.  Vend.  (8th  Am.  ed.)  364  (240);  Chitty  Cont. 
(10th  Am.  ed.)  330.  Swan  v.  Drury,  22  Pick.  (Mass.)  485.  Critchett  v. 
Cooper,  65  X.  H.  167;  18  Atl.  Rep.  778.  McWilliams  v.  Ix>ng,  32  Barb. 
(X.  Y.)  194;  10  How.  Pr.  547.  Guthrie  v.  Thompson,  1  Oregan,  353.  Persh- 
ing  v.  Canfleld,  70  Mo.  140.  1'ursloy  v.  Good,  94  Mo.  App.  382.  Overly  v. 
Tlpton,  88  Ind.  410;  Soule  v.  HoldrSdge,  63  Ind.  213;  Melton  v.  Coffelt,  59 
Ind.  310;  Parker  v.  McAllister,  14  Ind.  12.  Walters  v.  Mitchell,  6  Cal.  App. 
410,  92  Pac.  315;  Lemle  v.  Barry  (Cal.)  183  Pac,  148;  Booth  v.  Millikin, 
111  X.  Y.  Supp.  791,  127  App.  Div.  522;  Kchola  v.  MiHer,  (Tex.  Civ.  App.) 
21S  S.  W.  48:  Kdwards  v.  Wat«on,  258  *fo.  631,  167  S.  W.  1119;  Ogoouhevitz 
v.  Wahija*.  203  Mich.  604,  109  N.  W.  820:  Osborne  v.  Falrley,  (Ark.)  211 
I.  \V.  917;  MIMW  v.  King,  180  Ala.  475.  05  So.  180;  Robinson  v.  Yetter,  238 
HI.  320.  «7  X.  K.  363;  Adlcr  v.  Kohn.  96  Neb.  346,  147  N.  W.  1131;  Brown 
v.  l*v,  102  Fed.  817,  113  C.  C.  A.  141. 


TENDER  OF  PERFORMANCE  AND  DEMAND  FOR  DEED.    217 

his  mere  readiness,  willingness,  or  ability  to  perform  are  insuf- 
ficient without  a  tender  of  performance  by  him.36  If  the  con- 
tract provide  that  the  purchase  money  shall  not  be  paid  until  the 
title  has  been  perfected  to  the  satisfaction  of  the  purchaser,  the 
vendor  cannot  put  the  latter  in  default  until  he  is  able  to  execute 
a  deed  conveying  a  perfect  title,  and  has  advised  him  of  the 
fact.37  Payment  by  the  purchaser  and  conveyance  by  the  vendor 
may  be  dependent  and  concurrent  acts,  though  the  contract  pro- 
vides that  "  If  the  purchaser  shall  first  make  payment,  the  vendor 
will  convey,"  etc.38  The  rule  that  the  vendor  must  tender  per- 
formance in  order  to  put  the  purchaser  in  default  does  not  apply 

In  Stingle  v.  Hawkins,  8  Blackf.  (Ind.)  435,  a  vendor  executed  a  title  bond 
conditioned  to  make  a  deed  on  the  payment  of  certain  notes  for  the  pur- 
chase money,  payable  two  years  after  date,  and  it  was  held  that  a  suit 
on  the  notes  would  not  lie  until  the  vendor  had  offered  to  make  a  deed, 
or  had  shown  a  sufficient  reason  for  not  doing  so.  Citing  Leonard  v.  Bates, 
1  Blackf.  (Ind.)  172;  Owen  v.  Norris,  5  id.  479;  Burrows  v.  Yount,  6  id. 
458;  39  Am.  Dec.  439.  It  has  been  held  in  California  that  the  vendor's 
tender  of  the  deed  of  a  third  party  conveying  a  perfect  title  to  the  purchaser, 
is  a  sufficient  performance  by  the  vendor,  unless  the  purchaser  then  and  there 
specifically  objects  that  the  conveyance  is  not  by  the  vendor  himself.  The 
purchaser  must  make  the  specific  objection  in  order  that  the  vendor  may  have 
an  opportunity  to  procure  a  conveyance  to  himself  from  the  third  party. 
Unless  specifically  made  the  objection  will  be  deemed  to  have  been  waived. 
Royal  v.  Dennison,  109  Cal.  558-;  42  Pac.  39. 

In  Southern  Pac.  R.  Co.  v.  Allen,  112  Cal.  455;  44  Pac.  796,  the  contract 
provided  that  the  purchase  money  should  be  paid  on  or  before  a  certain  day, 
and  that  the  vendor,  a  railroad  company,  should  convey  upon  its  receipt  of 
a  patent  for  the  land,  or  refund  the  purchase  money  in  case  it  should  be 
finally  determined  that  no  patent  should  issue.  It  was  held  that  the  argu- 
ments to  pay  the  purchase  money  and  to  execute  a  conveyance  were  not 
mutual  and  that  the  railroad  company  might  maintain  an  action  for  the 
balance  of  the  purchase  money  without  tendering  a  conveyance,  no  patent 
having  yet  been  issued  to  the  company. 

Vendor,  being  unable  to  furnish  insurance  of  the  title  on  the  "  law  day " 
pursuant  to  agreement,  purchaser  may  rescind.  Drake  v.  Gaffney,  171  N.  Y. 
Supp.  131 ;  183  App.  Div.  577.  An  agreement  by  the  purchaser  to  pay  the 
installments  of  the  purchase  money  at  specified  times,  provided  the  vendor 
furnishes  him  within  90  days  an  abstract  showing  a  good  merchantable  title 
to  the  premises,  is  a  condition  precedent  rather  than  a  condition  concurrent, 
and  the  purchaser  is  entitled  to  rescind  and  recover  his  deposit,  unless  the 
abstract  showing  such  title  is  furnished  in  the  specified  time.  Kennedy  v. 
Dennstadt,  31  N.  D.  422;  154  N.  W.  271. 

39Rasst  v.  Morris,   (Md.)    108  Atl.  787. 

37  Kirkland  v.  Little,  41  Tex.  456. 

38  Ink  v.  Rohrig,  23   S.   D.   548,    122  N.  W.  594. 

28 


218  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

if  the  latter  has  given  notice  that  he  will  be  unable  to  pay  the 
purchase  money,  even  though  the  abstract  furnished  by  the  vendor 
showed  an  objection  to  the  title.  The  vendor  is  under  no  obliga- 
tion to  remove  or  offer  to  remove  the  objection  when  the  pur- 
chaser declares  his  own  inability  to  complete  the  contract.39  Nor 
where  the  purchaser  declares  that  he  will  not  carry  out  the  con- 
tract.10 Xor  where  the  contract  provides  for  payment  of  an 
installment  of  the  purchase  money  before  the  time  fixed  for  the 
execution  and  delivery  of  the  deed.41  Nor  where  the  purchaser  has 
failed  to  perform  on  his  part  what  he  was  required  by  the  con- 
tract to  do  before  he  could  demand  performance  by  the  vendor.0 
The  general  rule  is  that  if  either  party  renounce  the  contract, 
tender  of  performance  by  the  other  is  unnecessary;  but  in  order 
to  recover  damages  for  the  breach  such  other  party  must  show 
his  ability  to  perform.48  If  the  purchase  money  is  payable  in 
installments,  and  the  purchaser  is  not  to  receive  a  deed  until  the 
last  installment  is  paid,  the  covenants  are  independent,  except  as 
to  the  last  installment,44  and  the  weight  of  authority  seems  to 

"Johnston  v.  Johnston.  43  Minn.  6;  44  N.  W.  Rep.  668. 

••Sweitzer  v.  Hummel.  3  Serp.  &  R.  (Pa.)  228;  Hampton  v.  Specknagle,  9 
Serg.  &  R.  (Pa.)  22;  11  Am.  Dec.  704.  Bucklen  v.  Hasterlik,  155  111.  423; 
41  N".  E,  Rep.  561.  Gray  v.  Mills,  83  Fed.  824;  Blanton  v.  Ky.  Distilleries  Co. 
120  Fed.  318.  Bowereock  v.  Beers,  82  111.  396.  Armstrong  v.  Dunn,  163 
Mo.  App.  701.  147  S.  W.  509;  Garibaldi  Realty  Co.  v.  Santangelo,  149  N.  Y. 
Supp.  669,  164  App.  Div.  513;  Wolford  v.  Jaclreon,  123  Va.  280,  96  S.  K. 
237;  Armstrong  v.  Palmer,  (Tex.  Civ.  App.)  218  S.  W.  627;  Milton  v. 
Crawford,  65  Wash.  145;  118  Pac.  32;  Boyd  v.  Hoffman,  241  Pa.  421;  88 
All.  675. 

•  Strauwi  v.  Yeager,  48  Ind.  App.  448,  93  N.  E.  877. 

•Lang  v.  Hetk'nberg,  277  111.  368,  115  N.  E.  566. 

«Do«eh  v.  Andus,  111  Minn.  287,  126  N.  W.  1071. 

"Port,  |  208.  Terry  v.  George,  37  Mine.  539.  Kane  v.  Hood,  13  Pick. 
(Mass.)  281,  the  court  saying:  "Where  the  whole  purchase  money  is  to  be 
paid  at  once,  and  the  deed  is  to  be  then  given,  the  covenants  are  held  to  be 
dependent,  because  it  i»  unreasonable  to  presume  that  the  purchaser  intended 
to  pay  the  whole  consideration  without  having  the  equivalent  in  a  title  to 
the  land  purchased.  The  same  reason  applies  to  the  laat  installment."  Mc.Leod 
v.  Sn vder.  (Mo.)  19  S.  W.  Rep.  494.  If  suit  be  delayed  until  all  the  install- 
ment* become  due,  then  the,  covenant*  to  pay  and  to  make  title  becom* 
.!.  jx-ndent.  Johnson  v.  Wygant,  11  Wend.  (NT.  Y.)  48.  Compare  Bogi-r  v. 
H.-11,  84  Wash.  131,  146  Pac.  179,  where  held  that  the  vendor  does  not  waive 
hi*  right  to  declare  a  forfeiture  of  the  contract  by  extending,  for  a  definite 
period,  the  time  for  payment  of  an  installment  of  the  purchase  money  and 
allowing  a  fair  opportunity  thereafter  to  make  the  payment. 


TENDER  OF  PERFORMANCE  AND  DEMAND  FOR  DEED.    219 

establish  the  rule  that  the  purchaser  cannot  decline  to  pay  one 
of  the  intermediate  installments  upon  the  ground  that  the  vendor 
has  no  title,  for  non  constat,  but  that  he  may  acquire  or  perfect 
the  title  before  the  last  installment  becomes  due.45  It  has  been 
held  that  the  rule  that  the  vendor  must  tender  a  conveyance  before 
he  can  enforce  the  payment  of  the  purchase  money,  does  not  apply 
to  a  proceeding  in  equity  to  collect  the  purchase  money.  The 
reason  stated  for  this  exception  is  that  the  rights  of  the  purchaser 
may  be  protected  upon  final  decree  in  the  cause.46  The  vendor  is 
not  bound  to  tender  a  deed  to  a  sub-purchaser;  it  is  sufficient  if 
he  make  tender  to  the  original  purchaser.  He  cannot  be  required 
to  hunt  up  the  assignees  of  the  purchaser.47 

Although  the  vendor  is  entitled  to  a  judgment  for  the  purchase 
money  without  tender  of  a  deed  by  him,  where,  by  the  contract, 
payment  of  the  purchase  money  is  made  a  condition  precedent  to 
performance  by  him,  the  court  should  stay  the  enforcement  of 
the  judgment  until  he  deposits  in  court  for  delivery  to  the  pur- 
chaser, the  deed  required  by  the  contract.48 

It  has  been  held  that  it  is  not  necessary  that  the  vendor  shall 
have  the  legal  title  at  the  time  fixed  for  the  performance  of  the 
contract  if  he  can  control  it  and  have  it  conveyed  to  the  purchaser 
on  payment  of  the  purchase  money.49  This  may  be  true  where  the 

45  Post,  §  253.  Kane  v.  Hood,  13  Pick.  (Mass.)  281.  Duncan  v.  Charles, 
4  Scam.  (111.)  561;  Runkle  v.  Johnson,  30  111.  328;  Monson  v.  Stevens,  56 
111.  335.  Johnson  v.  Wygant,  11  Wend.  (N.  Y.)  50,  semble;  Harrington  v. 
Higgins,  17  Wend.  (X.  Y.)  376.  Lockwoodi  v.  Hannibal  &  St.  J.  R.  Co.,  65 
Mo.  233;  Smith  v.  Busby,  15  Mo.  387;  57  Am.  Dec.  207.  Oakes  v.  Buckley, 
49  Wis.  592.  Loveridge  v.  Coles,  72  Minn.  57;  74  N.  W.  1109.  Real 
Est.  Co.  v.  Walkup,  27  Cal.  App.  441,  150  Pac.  385;  Hawkins  v.  Rogers, 
(Oreg.)  179  Pac.  563;  Shepman  Mtge.  Co.  v.  Sussman,  131  N.  Y.  Supp. 
645,  147  App.  Div.  25.  The  installment  contract  should  not  be  so  construed 
as  to  allow  the  vendor  an  unreasonable  time  in  which  to  tender  the  deed. 
Thomas  v.  Seaman,  275  111.  267,  114  N.  E.  40. 

44  Rutherford  v.  Haven,  11  Iowa,  587;  Winton  v.  Sherman,  20  Iowa,  295. 
The  same  rule  seems  to  prevail  in  Texas ;  Bridge  v.  Young,  9  Tex.  401 ; 
Lawrence  v.  Simonton,  13  Tex.  220;  Taylor  v.  Johnston,  19  Tex.  351. 

47Heidenberg  v.   Jones,   V3  111.   149. 

^Noyes  v.  Brown,    (Minn.)    171  1ST.  W.  802. 

49Hazelton  v.  Le  Due,  10  App.  D.  C.  379,  citing  Dresel  v.  Jordan,  104 
Mass.  415  and  Flannigan  v.  Fox,  23  N.  Y.  Supp.  344;  26  Id.  48;  6  Misc.  132. 
In  the  first  two  of  these  cases  the  sale  was  made  by  parties  acting  in  a 
representative  capacity. 


MAKKKTAULK    TITLE    TO    KKAL    ESTATE. 

sale  was  made  by  an  executor  or  trustee,  or  other  person  acting 
in  a  representative  character,  from  whom  covenants  of  title  cannot 
be  required,  who  tenders  a  deed  executed  by  the  party  whom  he 
represents,  containing  the  proper  covenants.  But  it  can  hardly 
IM;  contended  that  a  purchaser  from  a  solvent  and  responsible 
party  may  be  compelled  to  accept  a  conveyance  from  a  stranger, 
whose  covenants  for  title  may  be  worthless.50  Where  the  contract 
provided  that  the  vendor,  its  successors  or  assigns,  would  convey 
by  special  warranty  deed,  the  tender  of  such  a  deed  executed 
by  a  grantee  of  the  vendor  was  held  to  be  sufficient.61 

In  the  American  States,"  with  but  few  exceptions,"  it  is  the 
duty  of  the  vendor  to  prepare  and  pay  for  the  conveyance  and 
have  it  in  readiness  for  delivery  when  demanded  by  the  purchaser. 
In  the  English  practice,  the  purchaser  prepares  the  conveyance  and 
tenders  it  to  the  vendor  with  the  purchase  money.54  The  American 
rule,  as  generally  expressed,  is  that,  to  put  the  vendor  in  default, 
it  is  necessary  that  the  vendee  should  demand  a  deed,  wait  a 
reasonable  time  for  the  vendor  to  get  it  drawn,  and  then  present 
himself  to  receive  it.65  Of  course,  the  parties  may  contract  that 

"Ante.  |  18:  post,  ft  315. 

"  Herrick  Imp.  Co.  v.  Kelly,  65  Wash.  18,  117  Pac.  705,  distinguishing 
Got tw  balk  v.  Meisenheimer,  «2  Wash.  299,  113  Pac.  765. 

"Taylor  v.  Longworth.  14  Pet.  (I*.  S.)  175.  Stone  v.  Lord,  80  N.  Y.  60. 
Seeley  v.  Howard.  13  Win.  33«;  Dye  v.  Montague,  10  Wis.  16.  Hill  V. 
Iloltart.  1(5  Mr.  104.  Kspecially  if  the  contract  provide*  that  the  vendor 
shall  "make  and  execute  a  deed."  Walling  v.  Kinnaird,  10  Tex.  508;  60 
Am.  Dec.  210.  Fairfax  v.  Ix«wis,  2  Rand.  (Va.)  20.  Standifer  v.  Davis,  13 
Sm.  &  M.  (Mis*.)  549  Son*  of  Temp.  v.  Brown,  9  Minn.  157.  Baston  v. 
Clifford,  08  III.  07;  18  Am.  Rep.  547.  The  purchaser  is  not  obliged  to  pre- 
pare ami  tender  a  deed,  mile-*  such  an  obligation  can  l>e  fairly  inferred  from 
the  oontraot.  IliickmaHter  v.  Crunch.  1  Scam.  (111.)  310;  Headley  v.  Shaw, 
30  III.  354.  It  in  only  necessary  that  the  purchaser  shall  allege  that  he 
demanded  a  deed ;  he  need  not  allege  that  he  prepared  it  and  presented  it 
fi»r  execution.  Standifer  v.  Davis,  13  Sm.  4  M.  (Miss.)  548. 

"Ilyern  v.  Aiken,  5  Pike  (Ark.).  419,  49".  But  sec  Arledgc  v.  Brooks,  22 
Ark.  427.  In  Alabama,  the  Ktifilinh  rule  that  the  purchaser  must  prepare 
the  conveyance  and  tender  it  to  the  vendor  to  be  executed,  has  l>een  held  to 
prevail.  Wade  v.  Killough,  5  Stew.  &  P.  (Ala.)  450;  Chapman  v.  Lee,  M 
Ala.  618. 

"I   Sugtl.  Vend.    (8th  Am.  ed.)    366    (241). 

"Fuller  v.  Ilubburd.  0  Cow.  (N.  Y.)  13;  16  Am.  Dec.  423;  Hackett  v. 
Hiiftun.  3  Wend.  (N.  Y.)  250.  Dye  v.  Montague,  10  Wis.  15. 


TENDER  OF  PERFORMANCE  AND  DEMAND  FOR  DEED.     221 

the  purchaser  shall  prepare  and  tender  the  deed  for  execution.56 
It  has  been  held  that  a  personal  representative  of  an  assignee  of 
the  vendor,  having  no  connection  with  the  contract  and  no  act  to 
perform  in  respect  to  it,  need  not  tender  a  conveyance  as  a  condi- 
tion precedent  to  the  enforcement  of  a  vendor's  lien  on  the  prop- 
erty.57 But  it  was  held  in  the  same  case  that  the  court  would  not 
direct  a  sale  of  the  land,  unless  the  purchaser  put  himself  in 
default  by  declining  to  pay  the  purchase  money. 

There  are  cases  which  hold  that  to  put  the  vendor  in  default,  the 
purchaser  must  demand  the  deed,  wait  a  reasonable  time  for  the 
vendor  to  have  it  drawn,  and  again  present  himself  and  make  a 
second  demand ; 58  the  purchaser  being  at  liberty,  however,  to  obvU 
ate  the  necessity  of  a  second  demand,  by  himself  preparing  and 
tendering  the  deed.59  'But  the  better  opinion  seems  to  be  that  it  is 
the  duty  of  the  vendor  to  prepare  the  deed  and  have  it  in  readi- 
ness for  delivery  at  the  time  appointed  for  the  completion  of  the 
contract,  and  that  a  demand  for  the  deed  at  that  time  is  sufficient 
to  put  him  in  default.60 

Where  the  contract  fixes  no  time  for  performance,  the  vendor 
is  not  bound  to  convey  the  instant  the  purchase  money  is  paid ; 
he  is  entitled  to  a  reasonable  time  in  which  to  perform.61 

The  purchaser,  by  demanding  execution  of  a  full  covenant  war- 
ranty deed  and  the  production  of  evidence  that  the  property  is 
free  from  incumbrances,  when  he  is  not  entitled  by  the  contract 
to  make  such  demands,  thereby  waives  the  tender  of  such  deed 
as  he  is  entitled  to  under  the  contract.62 

58Tinney  v.  Ashley,  14  Pick.  (Mass.)  546;  26  Am.  Dec.  620.  As  where 
the  contract  provides  that  the  vendor  shall  execute  such  conveyances  as  the 
purchaser  shall  devise.  Sweitzer  v.  Hummel,  3  Serg.  &  R.  (Pa.)  228. 

57Mhoon  v.  Wilkinson,  47  Miss.  633. 

cs  Fuller  v.  Hubbard,  6  Cow.  (X.  Y.)  13;  16  Am.  Dec.  423;  Fuller  v.  Wil- 
liams, 7  Cow.  (X.  Y.)  53;  17  Am.  Dec.  498;  Hackett  v.  Huson,  3  Wend. 
(X.  Y.)  250;  Connelly  v.  Pierce,  7  Wend.  (X.  Y.)  129;  Lutweller  v.  Linnell, 
12  Barb.  (X.  Y.)  512;  Pearsoll  v.  Frazer,  14  Barb.  (X.  Y.)  564.  Johnston 
v.  Beard,  7  Sm.  &  M.  (Miss.)  214;  Hudson  v.  Watson,  26  Miss.  357. 

59  Connolly  v.  Pierce,  7  Wend.    (X.  Y.)    129,   132;  Wells  v.  Smith,  2  Edw. 
(X.  Y.)    7'S;   Foote  v.  West,  1   Den.    (X.  Y.)    544;    Camp  v.  Morse,  5  Den. 
(X.  Y.)    164. 

60  Carpenter  v.  Brown,  6  Barb.    (X.  Y.)    147. 

"MeCloat  v.  Floral  Park  Co.,  165  X.  Y.  Supp.  55,  177  App.  Div.  865. 

62  Palmer  v.  Hudson  Val.  R.  R.  Co.,  118  X.  Y.  Supp.  710;   134  App.  Div.  42. 


2*22  MAUKKTAULK    TITLK    TO    KKAL    ESTATE. 

The  tender  must  In1  made  at  the  residence  of  the  vendee,  or 
other  place  socially  agreed  upon.  A  tender  made  to  the  vendee's 
attorney  is  insufficient." 

§  89.  PLEADINGS.  As  a  general  rule,  in  any  case  in  which  the 
purchaser  seeks  to  avail  himself  of  his  right  of  action  against  the 
vendor  for  non-performance  of  the  contract,  when  the  payment  of 
the  purchase  money  on  the  one  part,  and  the  conveyance  of  a  good 
title  on  the  other,  are  dependent  and  concurrent  acts,  he  must,  ill 
his  pleadings,  aver  an  actual  performance  or  tender  of  perform- 
ance on  his  own  part,*4  or  aver  a  present  willingness  and  ability 
to  perform,*5  or  set  out  facts  which  excuse  his  own  non-perform- 
ance, such  as  absolute  want  of  title  in  the  vendor,  or  that  the 
vendor  had  notified  him  that  he  would  not  or  could  not  complete 
the  contract."  Wherever  it  is  necessary  that  the  purchaser  shall 
have  tendered  a  conveyance  and  the  purchase  money  as  a  condition 
precedent  to  his  right  to  rescind  the  contract,  or  to  recover  dam- 
ages for  the  breach  thereof,  he  must,  in  any  pleading  in  which  he 
asserts  those  rights,  aver  the  performance  of  such  condition,  or 
the  pleading  will  be  fatally  defective.17 

••  Harrow  v.  Cornell,  51  N.  Y.  Supp.  828.  The  vendor  does  not  tender 
performance  by  depositing  the  deed  with  a  bank  not  designated  in  the  con- 
tract. Tucker  v.  Thraves.  50  Okl.  091,  151  Pac.  598. 

••Clark  v.  Locke,  11  Hump.  (Tenn.)  300.  Grace  v.  Regal,  11  S.  &  R. 
(Pa.)  351. 

•  Smith  v.  Robertson,  1 1  Ala.  840. 

"Son*  of  Temp,  v.  Brown,  9  Minn.  157. 

"Jnhnwton  v.  Beard,  15  Miss.  214.  In  Goodwin  v.  Morey,  111  Ind,  69,  it 
wa*  hrld  that  the  vendor,  Keeking  to  enforce  the  contract,  must  aver  the 
tender  of  a  *ufficient  warranty  deed,  and  must  keep  the  tender  good  by  bring- 
ing the  deed  into  court,  or  by  an  averment  of  readiness  and  willingness  to 
execute  a  deed  that  will  vest  a  perfect  title  in  the  purchaser.  He  must  allege 
and  prove  that  he  wa*  able  to  convey  a  good  title  to  the  purchaser  at  the 
time  fixed  for  performance  of  the  contract.  Armstrong  v.  Dunn,  103  Mo. 
App.  701,  147  S.  W.  509. 


CHAPTER  X. 

MEASURE  OF  DAMAGES  FOR  INABILITY  TO  CONVEY  A  GOOD 

TITLE. 

GENERAL    OBSERVATIONS.     §   90. 

WHEBE  THE  VENDOR  ACTS  IN  GOOD  FAITH. 

Flureau  v.  Thornhill.     Hopkins  v.  Lee.     §   91. 

Barter  contracts.     §   92. 

Expenses   of   examining  the  title.     §   93. 

Interest.     §   94. 

Rents  and  profits.     §   95. 

Improvements.     §   96. 

WHERE  THE  VENDOR  ACTS  IN  BAD  FAITH.     §   97. 
WHERE  THE  VENDOR  EXPECTS  TO  OBTAIN  THE    TITLE     §   98. 
WHERE  THE  VENDOR  REFUSES  TO  PERFECT  THE  TITLE.     §   99. 
LIQUIDATED  DAMAGES     §    100. 

g  90.  GENERAL  OBSERVATIONS.  Damages  for  breach  of  a  con- 
tract for  the  sale  of  lands  by  the  vendor  are  either,  (1)  reim- 
bursement for  such  part  of  the  purchase  money  as  has  been 
paid,  with  interest,  costs,  expenses  of  examining  the  title,  etc., 
or  (2),  reimbursement  in  these  particulars,  and,  in  addition,  the 
difference  between  the  value  of  the  land  at  the  time  the  contract 
was  made  measured  by  the  purchase  price,  and  the  fair  market 
value  of  the  land  at  the  time  of  the  breach;  in  other  words, 
damages  to  the  purchaser  for  the  loss  of  his  bargain.1  Profits 
which  the  purchaser  might  have  made  by  a  resale  of  the  land  under 
a  contract  existing  at  the  time  of  his  purchase  cannot  be  allowed  as 
damages,  unless,  perhaps,  the  vendor  had  notice  of  such  contract  at 
the  time  of  the  sale.2  Nor  can  the  purchaser  include  in  his  esti- 
mate of  damages  profits  anticipated  from  the  prosecution  of  his 

lThe  purchaser's  measure  of  damages  for  the  loss  of  his  bargain  will  gen- 
erally be  the  difference  between  the  contract  price  and  the  enhanced  value 
of  the  land  when  the  conveyance  should  have  been  made.  2  Dart.  V.  &  P. 
(4th  Eng.  ed.)  872;  3  Sedg.  Dam.  (8th  ed.)  §  1018.  Engel  v.  Fitch,  L.  R., 
3  Q.  B.  314.  Hopkins  v.  Lee,  6  Wh.  (U.  S.)  109.  Baldwin  v.  Munn,  2  Wend. 
(N.  Y.)  399;  20  Am.  Dec.  627;  Driggs  v.  Dwight,  17  Wend.  (N.  Y.)  71; 
31  Am.  Dec.  283;  Fletcher  v.  Button,  6  Barb.  (N.  Y.)  647;  Brinckerhoff  v. 
Phelps,  43  Barb.  (N.  Y.)  469;  Pr ingle  v.  Spaulding,  53  Barb.  (N.  Y.)  17. 
Bitner  v.  Brough,  11  Pa.  St.  127;  Meason  v.  Kaine,  67  Pa.  St.  132. 

"Sanderlin  v.  Willis,  94  Ga.  171;  21  S.  E.  Rep.  291. 

[223] 


'2'24  MAKKKTAHI.K    TIT1.K    TO     KKAI.     ESTATE. 

business  on  the  premises  which  should  have  been  conveyed  to  him. 
Such  damages  are  too  remote,  and  are,  besides,  speculative  and 
incapable  of  ascertainment.8 

The  question  whether  the  purchaser  is  entitled  to  nominal  or 
substantial  damages  for  breach  of  the  contract  usually  arises  under 
the  one  or  the  other  of  the  following  circumstances: 

(1) Where  the  vendor  acts  in  good  faith,  believing  that  his 
title  is  free  from  objection. 

(2)  Where  the  vendor  acts  in  bad  faith  knowing  that  he  has  no 
title  and  no  prosjKTt.  of  acquiring  it. 

(3)  Where,  having  no  title,  the  vendor  expects  to  acquire  it  in 
time  to  complete  the  contract. 

(4)  Where  the  title  is  defective  or  the  estate  incumbered,  and 
the  vendor  has  the  jxnver  to  cure  the  defect  or  remove  the  incum- 
brance,  but  neglects  or  refuses  to  do  so. 

It  need  hardly  be  said  that  the  purchaser  may  always  recover  for 
the  loss  of  his  bargain  wherever  the  vendor,  having  a  good  title, 
[MTversely  and  wrongfully  refuses  to  convey,4  or  puts  it  out  of  his 
power  to  perform  the  contract  by  conveying  to  a  stranger  without 
notice  of  the  purchaser's  rights.6  Were  the  rule  otherwise,  the 
vendor  might  in  ever}'  case  in  which  the  land  had  enhanced  in 
value  before  the  time  fixed  for  making  the  conveyance  sell  to  a 
third  jxTson,  return  the  purchase  price  to  the  first  purchaser, 
and  jmt  in  his  own  pockets  the  difference  between  the  two  values. 
I'ut  if  the  vendor  abandon  the  contract  and  the  purchaser 
acquiesces  in  the  vendor's  attempt  to  rescind,  instead  of  demand- 

•  Greene  v.  Williams,  45  111.  206;  Hines  v.  Richtcr,  51  111.  299.  These  were 
both  ca*e*  in  which  the  vendor  refused,  without  sufficient  cause,  to  perform 
hit*  contract.  A  fortiori  would  the  rule  apply  where  he  was  prevented  from 
performing  the  contract  hy  an  unimpeded  defect  of  title. 

4  3  Sedg.  I>am.  («th  ed.)  5  1006.  Baldwin  v.  Munn,  2  Wend.  (N.  Y.)  399; 
80  Am.  Dec.  627;  Brinckerhoff  v.  Phelps,  24  Barb.  (NT.  Y.)  100;  S.  C.,  43 
Barb.  (X.  Y.)  469.  Rowland  v.  Dowe,  2  Murph.  (N.  C.)  347;  Lee  v.  Rutwell, 
8  Irwl.  Kq.  526.  Mullen  v.  Cook,  09  W.  Va.  456,  71  S.  E.  566.  But  if  the 
contract  were  not  in  writing,  the  purchaser  can  recover  only  what  he  ha* 
ili-l.iii  »•  •!.  He  can  have  nothing  under  the  contract,  that  being  void.  Welch 
r.  Lawmin,  32  MUm.  170.  Rineer  v.  Colling  156  Pa.  St.  342. 

•3  Sedg.  Dmm.  1*3.  Dunlin  v.  Newcomer,  8  Ohio,  49.  Wilson  v.  Spenser, 
II  Leigh  (Va.),  261.  (lerault  v.  Anderson,  2  Bibb  (Ky.),  643.  Sweem  v. 
Steele.  5  Iowa.  352.  Case  v.  Wolcott,  33  Ind.  5.  Phillips  v.  Ilcrndon,  78 
Tex.  378. 


MEASURE  OF  DAMAGES  ;  INABILITY  TO  CONVEY  GOOD  TITLE.       225 

ing  a  deed  and  standing  upon  the  contract,  lie  can  recover  only 

the  purchase  money  and  interest.6 

|  91.  WHERE   THE    VENDOR   ACTS  IN  GOOD   FAITH.     Flureau 

v.  Thornhill.  Hopkins  v.  Lee.  As  a  general  rule  a  vendor  of 
property,  whether  real  or  personal,  who,  from  whatever  cause, 
fails  to  perform  his  contract,  is  bound  to  place  the  purchaser, 
so  far  as  money  will  do  it,  in  the  position  he  would  have  been 
in  if  the  contract  had  been  performed.  Ordinarily  the  motives 
and  purposes  of  either  party  in  entering  into  the  contract,  or  the 
intent  of  either  to  abandon  or  to  perform  it,  are  irrelevant  to  the 
question  of  what  measure  of  damages  shall  be  awarded  in  case  of  a 
breach.7  An  exception  to  this  rule  has  been  held  to  exist  wherever 
the  vendor  of  real  property  is  unable  to  convey  a  good  title,  if  he 
in  good  faith  entered  into  the  contract  believing  that  his  title  was 
good.8  The  leading  case  upon  this  point  in  England  is  Flureau  v. 
Thornhill,9  Sir  William  Blackstoiie  being  one  of  the  judges  who 

6  Fowler  v.  Johnson,  19  Ind.  207. 

7  CocKBUBisr,  L.  C.  J.,  in  Engel  v.  Fitch,  L.  B..,  4  Q.  B.  659.     3  Sedg.  Dam. 
180,  181. 

81  Sugd.  Vend.  (8th  Am.  ed.)  537;  Chitty  Cont.  (10th  Am.  ed.)  338;  2 
Dart  V.  &  P.  (4th  Eng.  ed.)  873;  2  Sutherland  Dam.  207,  208;  2  Add.  Cont. 
(8th  ed.)  401  (901).  Flureau  v.  Thornhill,  2  W.  Bl.  1078  (1776)  ;  Clare  v. 
Maynard,  6  Ad.  &  El.  519;  Buckley  v.  Dawson,  5  Ir.  C.  L.  R.  211;  Simons  v. 
Patchett,  7  E.  &  B.  568.  Pounsett  v.  Fuller,  17  C.  B.  660;  Lock  v.  Furze, 
L.  R,  1  C.  P.  453,  obiter.  Walker  v.  Moore,  10  Barn.  &  C.  416;  S.  C.,  21 
E.  C.  L.  R.  179,  was  a  strong  case.  The  vendor  acting  bona  fide  delivered  an 
abstract  showing  a  good  title,  and  the  purchaser,  before  verifying  the  abstract, 
resold  the  property  in  several  portions-  to  sub-purchasers  at  a  large  profit 
(  £1,500).  Afterwards,  on  comparing  the  abstract  with  the  original  deeds, 
the  title  was  found  to  be  defective,  in  consequence  of  which  the  sub-pur- 
chasers refused  to  complete  the  contract.  The  purchaser  claimed  damages 
for  the  profits  which  he  would  have  realized  from  the  resale,  but  it  was 
held  that  he  could  recover  only  the  expenses  incurred  by  him  in  examining 
the  title,  and  nominal  damages  for  the  -breach  of  contract. 

9  2  W.  Bl.  1078.  Flureau  bought  at  auction  a  rent  of  £26,  1,  0.  per  annum 
for  a  term  of  thirty-two  years.  It  was  knocked  down  to  him  at  £270  and  lie 
paid  £54  as  a  deposit.  On  looking  into  the  title  it  was  found  to  be  bad, 
and  the  vendor  proposed  to  the  purchaser  to  take*  the  title,  such  as  it  was, 
or  receive  back  his  deposit,  with  interest  and  costs ;  but  the  purchaser  insisted 
on  a  further  sum  for  damages  in  the  loss  of  so  good  a  bargain.  The  jury, 
contrary  to  the  direction  of  the  judge,  gave  a  verdict  for  the  deposit  and 
£20  damages.  On  a  motion  for  a  new  trial  DEGREY,  C.  J.,  said:  "I  think 
the  verdict  wrong  in  point  of  law.  Upon  a  contract  for  a  purchase,  if  the 

29 


22(5  MAHKKTAlll.K    TIT1.K    To    KM  A  I.    KSTATE. 

delivered  opinions  in  that  case.  Some  dissatisfaction  with  this 
decision  has  been  expressed  in  several  English  eases,10  but  it  is  now 
regarded  there  as  settled  law."  In  the  American  States  it  is 
believed  that  the  weight  of  authority  inclines  to  the  same  rule, 
namely,  that  the  purchaser  can  have  no  damages  for  the  loss  of 
his  bargain  if  the  vendor  sold  in  good  faith,  believing  that  his 
title  was  good,12  but  in  many  of  the  States  the  opposite  rule  pre- 

title  proves  bad,  and  the  vendor  is  (without  fraud)  incapable  of  making  a 
good  one,  I  do  not  think  that  the  purchaser  can  be  entitled  to  any  damages 
for  the  fancied  goodness  of  the  bargain  which  he  supposes  he  lost."  The  new 
trial  was  granted. 

"Engel  v.  Fitch,  10  B.  &  S.  738;  S.  C.,  L.  R.,  4  Q.  B.  659. 

"Sikw  v.  Wild,  1  B.  &  S.  587;  Bain  v.  Fothergill,  L.  R.,  7  H.  L.  158;  Row* 
V.  School  Board,  36  Ch.  D.  619. 

*  Sutherland  Dam.  217.  Letcher  v.  Woodeon,  1  Brook.  (U.  S.)  212,  per 
MARSHALL,  C.  .1.  Blackwell  v.  Lawrence  County,  2  Bl.  (Ind.)  143;  Sheets  v. 
Andrews,  2  Bl.  (Ind.)  274;  Adamson  v.  Rose,  30  Ind.  380;  Junk  v.  Barnard, 
99  Ind.  137;  Puterbaugh  v.  Futerhaiigh,  7  Ind.  App.  280,  obiter;  S.  C.,  34 
X.  E.  Rep.  611.  SVeem  v.  Steele,  5  Iowa,  352;  Foley  v.  Keegan,  4  Iowa,  1: 
66  Am.  Dec.  107.  Cornell  v.  Rodabaugh,  117  Iowa,  287;  90  N.  W.  599.  Lister 
v.  Batson,  6  Kan*.  412.  scmble.  Rutledge  v.  Lawrence,  1  A.  K.  Marsh.  (Ky.) 
397;  Allen  v.  Anderson,  2  Bibb  (Ky.)  415;  Cox  v.  Strode,  2  Bibb  (Ky.),  275; 
5  Am.  Dec.  603;  Herndon  v.  Venablc.  7  Dana  (Ky.)  371;  Combs  v.  Tarlton. 
2  Dana  (Ky.)  464;  Goff  v.  Hawkes,  5  J.  J.  Marsh.  (Ky.)  341.  (But  see 
Jenkins  v.  Hamilton,  153  Ky.  163,  154  S.  W.  937.)  Baltimore  P.  B.  &  L. 
Soo.  v.  Smith,  54  Md.  IS";  30  Am.  Hep.  374,  distinguishing  the  early  cases  of 
C<mnell  v.  McLean,  6  Harr.  &  J.  297,  and  Marshall  v.  Haney,  9  Gill,  251 : 
59  Am.  Dec.  92.  The  question  was  loft  undecided  in  Rawlings  v.  Adams, 
7  Md.  26,  51.  Hammond  v.  Hannin,  21  Mich.  374;  4  Am.  Rep.  490,  per 
COOLEY,  J.  Dunnica  v.  Sharp,  7  Mo.  71.  But  see  Missouri  cases  cited 
row  fro,  post,  next  note.  Drake  v.  Barker,  34  X.  J.  L.  358.  Baldwin  v.  Munn, 
2  Wend.  (N.  Y.)  299;  20  Am.  Dec.  627,  leading  case;  Peter  v.  McKoon,  4 
Den.  (X.  Y.)  546;  Fletcher  v.  Button,  0  Barb.  (X.  Y.)  646;  Conger  v. 
Weaver,  20  N.  Y.  140;  Ox-kroft  v.  X.  Y.  ft  H.  R.  R.  Co.,  69  X.  Y.  204; 
KARL,  J.,  in  Mack  v.  Patchin,  40  N.  Y.  171,  obiter;  1  Am.  Rep.  506.  McLowry 
v.  Croghan,  1  Grant  (Pa.)  307;  Bitner  v.  Brough,  11  Pa.  St.  139;  Dunmars 
v.  Miller,  34  Pa.  St.  319;  Hertzog  v.  HertJtog.  34  Pa.  St.  418,  overruling 
Jack  v.  McKio,  9  Barr  (Pa.)  235;  Graham  v.  Graham,  34  Pa.  St.  475; 
M«\air  v.  Compton,  35  Pa.  Si.  23;  Ewing  v.  Thompson,  66  Pa.  St.  382; 
Burk  v.  Serrill,  80  Pa.  St.  413;  21  Amu  Rep.  105;  Tyson  v.  Kyrioh.  141  Pa. 
St.  296;  21  Atl.  Rep.  635.  See,  also,  Rineer  v.  Collins,  156  Pa.  St.  342. 
Sutton  v.  Pagr.  4  Tex.  142;  Wheeler  v.  Styles,  28  Tex.  240;  Hall  v.  York, 
22  Tex.  643.  Jackson  v.  Turner.  5  Leigh  (Va.),  119,  obiter;  Wilson  v. 
Spencer.  11  Leigh  (Va.),  261;  Thompson  v.  Guthrie.  9  Leigh  (Va,)  101;  33 
Am.  iVo.  22.1;  Click  v.  Green,  77  Va.  827,  obiter;  Abernathy  v.  Phillips,  82 
Va.  769;  1  S.  K.  R*p.  113.  Saulters  v.  Victory.  35  Vt.  361.  In  this  case. 


MEASUKE  OF  DAMAGES  ;  INABILITY  TO  CONVEY  GOOD  TITLE.        227 

vails,13  and  in  others  it  is  said  that  the  English  rule  must  be 
strictly  limited  to  cases  in  which  the  vendor  sold  in  entire  ignor- 

however,  it  was  said  that  upon  a  breach  of  the  covenant  of  warranty  the 
covenantee  would  be  entitled  to  damages  for  the  value  of  the  land  at  the 
time  of  the  breach.  Hall  v.  Delaplaine,  5  Wis.  206 ;  68  Am.  Dec.  57 ;  Combs 
v.  Scott,  76  Wis.  662,  670,  obiter.  In  Cox  v.  Henry,  32  Pa.  St.  18,  the  pur- 
chaser took  a  bond  conditioned  to  indemnify  himself  for  all  costs,  charges  and 
damages  which  he  might  sustain  if  the  land  should  be  recovered  from  him 
under  a  paramount  title,  and  afterwards  took  a  conveyance  of  the  land  with 
warranty.  It  was  held  that  the  bond  was  not  merged  in  the  conveyance, 
and  that  under  the  former  the  purchaser  was  entitled  to  recover,  in  addi- 
tion to  the  purchase  money  and  interest,  court  fees,  reasonable  fees  of  counsel, 
and  his  own  expenses  and  loss  of  time  in  defending  a  suit  by  an  adverse 
claimant  to  recover  the  land.  In  Texas,  the  purchaser  is  allowed  to  recover, 
in  addition  to  the  .paid  purchase  price  with  interest,  any  special  damages 
which  he  may  have  incurred  by  having  been  induced  to  enter  into  the  con- 
tract. Yzaguirre  v.  Garcia,  (Tex.  Civ.  App.)  172  S.  W.  139. 

Recent  cases.  Homer  v.  Beaseley,  105  Md.  193,  65  Atl.  820;  Smith  v. 
Bangham,  156  Cah  359,  104  Pac.  689,  28  L.  R.  A.  (X.  S.)  522;  Haney  v. 
Hatfield-;  241  Pa.  413,  88  Atl.  680;  Mulfen  v.  Cook,  69  W.  Va.  456,  71  S.  E. 
566;  Babcock  v.  Urquhart,  53  Wash.  168,  101  Pac.  713;  Crosby  v.  Wynkoop, 
56  Wash.  475,  106  Pac.  175;  Seymour  v.  Jaffe,  78  Wash.  1,  138  Pac.  276; 
Rosenberg  v.  Haggerty,  125  1ST.  Y.  Supp.  979,  141  App.  Div.  73;  Willard  v. 
Smith,  34  Mont.  494,  87  Pac.  613-;  Hahl  &  Co.  v.  Weat,  (Tex.  Civ.  App.)  129 
S.  W.  876;  Vaughn  v.  Bank,  59  Tex.  Civ.  App.  380,  126  S.  W.  690;  Garcia 
v.  Yzaguirre,  (Tex.  Civ.  App.)  213  S.  W.  236.  Compare  Runnells  v.  Pruitt, 
(Tex.  Civ.  App.)  204  S.  W.  1017. 

13  Mr.  Sedgwick  takes  this  view.  3  Sedg.  Dam.  196.  Hopkins  v.  Lee,  6  Wh. 
(U.  S.)  109,  seirible.  Whitesides  v.  Jennings,  19  Ala.  784,  dictum.  Kempner 
V.  Cohn,  47  Ark.  519;  58  Am.  Rep.  775.  Wells  v.  Abernathy,  5  Conn.  222. 
Bryant  v.  Hambrick,  9  Ga.  133;  Newsom  v.  Harris,  Dudley  (Ga. ),  180; 
Gibson  v.  Caweker,  82-  Ga.  46 ;  Ga.  Code,  §  2949 ;  Irvin  v.  Askew,  74  Ga. 
581.  Buckmaster  v.  Grundy,  1  Scam.  (111.)  310;  McKee  v.  Brandon,  2 
Scam.  (111.)  339;  Gale  v.  Dean-,  20  111.  320;  Plummer  v.  Rigdon,  78  111.  222; 

20  Am.  Rep.  261.     Lewis  v.  Lee,   15  Ind.  499.     But  see  the  Indiana  cases, 
supra,   following  Flureau  v.   Thornhill.      Sutton  v.   Page,    13   La.  Ann.    143, 
where,  however,  it  was  held  that  the  purchaser  could  recover  only  for  such 
increase  in  value  as  the  parties  may  have  had  in  contemplation  at  the  time 
of  the  sale,  and  not  for  any  enormous  increase  produced  by  unforeseen  or 
fortuitous  circumstances.     Dorincourt  v.  La  Croix,  29  La  Ann.  286.     Robin- 
son v.  Heard,  15  Me.  296;  Hill  v.  Hobart,  16  Me.  164;  Warren  v.  Wheeler, 

21  Me.  484;    Lawrence  v.   Chase,   54  Me.   196;   Russell  v.   Copeland,   30  Me. 
332;   Doherty  v.  Dol-an,  65  Me.  87;   20  Am.  Rep.  677.     Trask  v.  Vinson,  20 
Pick.    (Mass.)    110,   obiter.     The  rule   could   scarely  be  otherwise  in  Massa- 
chusetts, for  in  that  State  it  is  settled  that  the  measure  of  damages  for  a 
breach  of  the  covenant  of  warranty  is  the  value  of  the  land  at  the  time  of  the 
breach.     So,  also,  in  Maine.     Post,  §   165.     Loomis  v.  Wadhams,   8  Gray 


H28  MAItKETAliLK    TITI.K    TO    KKAL    ESTATE. 

ance  of  his  inability  to  perform  the  contract.14  The  reasons  for 
the  rule  established  in  Flureau  v.  Thornhill,  and  the  cases  which 
follow  that  decision,  are  principally  and  briefly  these: 

1.  A  perfect  title  depends  for  its  existence  upon  such  an  infinite 
variety  of  circumstances,  and  the  law  of  real  property  is,  in  many 
respects,  so  artificial  and  complex,  that  few  vendors  can  be  certain 
that  there  is  no  latent  and  unsuspected  defect  in  their  titles,  hence 
a  kind  of  implied  contract  arises  that  the  vendor  shall  only  refund 
the  purchase  money,  interest  and  expenses,   if  a  defect  in  the 
title  should  be  discovered,  and  the  vendor  acting  in  good  faith  be 
unable  to  complete  the  contract15 

2.  It  frequently  happens  that,  from  unexpected  causes,  the  value 
of  the  lands  sold  greatly  increases  before  the  time  fixed  for  the 
conveyance,  sometimes  doubling  and  sometimes  quadrupling  the 
purchase  price.    In  such  a  case  it  has  been  considered  inequitable 
to  visit  upon  an  innocent  vendor  the  ruinous  consequences  of 
the  increase.    No  prudent  man  would  venture  to  sell  his  property, 


557;  Brigham  v.  Evans,  113  Mass.  538.  Skaarans  v.  Finnegan,  31 
Minn.  48,  obiter,  the  action  being  against  one  who  lu»d  falsely  assumed 
authority  to  sell.  Kirkpatric-k  v.  Downing,  58  Mo.  32;  17  Am.  Rep.  678; 
Hartrell  v.  Crumb.  90  Mo.  629.  Nichols  v.  Freeman,  11  Ired.  (N.  C.)  99. 
Barbour  v.  Nichols,  3  R.  I.  187.  Cocke  v.  Taylor,  2  Tenn.  50;  Perking  v. 
Hadley,  4  Hayw.  (Tenn.)  143;  Crittenden  v.  Posey,  1  Head  (Tenn.)  320, 
obiter;  Hopkins  v.  Yowell,  5  Yerg.  (Tenn.)  305;  Clarke  v.  Locke,  11  Humph. 
(Tenn.  I  302;  Shaw  v.  Wilkins,  8  Humph.  (Tenn.)  647:  49  Am.  Dec.  692. 
An  early  Tennessee  case  held  that  the  purchaser  was  not  entitled  to  damage* 
for  the  IOM  of  his  bargain.  Wilson  v.  Robertson,  1  Tenn.  464.  Dunghee  v. 
Geoghegan,  (Utah)  25  Pac.  Rep.  731. 

Recent  Caws.  White  v.  Harvey,  175  Iowa  213,  157  N.  W.  152;  Jenkins 
T.  Hamilton,  153  Ky.  163;  154  S.  W.  937;  Crandall  v.  Kirk,  185  111.  App. 
460;  Wilder  v.  Tatum  (Ala.)  73  So.  833;  Bugajski  v.  Sikwa,  200  Mich.  415, 
166  S.  W.  863;  Beck  v.  Staata,  80  Neb.  482;  114  N.  W.  633,  16  L.  R.  A. 
(N.  S.)  768;  Beetem  v.  Follmer,  87  Neb.  514,  127  S.  W.  858.  The  purchaser 
cannot  have  damages  for  the  loss  of  his  bargain  where  the  contract  provided 
that  the  purchase  money  should  he  refunded  if  the  title  waa  found  to  be  bad. 
Crowby  v.  Wynkoop,  56  Wanh.  475,  106  Pac.  175. 

"Pumpelly  v.  Phelpn,  40  N.  Y.  59;  100  Am.  Dec.  468. 

"Sir  WILLIAM  BLACKSTONK  in  Flureau  v.  Thornhill,  2  W.  Bl.  1078; 
CocKBt-BN,  C.  J.,  in  Sike«  v.  Wild,  1  B.  A  S.  596.  "When  a  contract  for  the 
sale  of  lands  is  made,  each  party  cannot  but  know  that  the  title  may  prove 
defective,  and  must  be  taken  to  proceed  upon  that  knowledge."  LlTTUCDAIX, 
J.,  In  Walker  v.  Moore,  10  Barn.  &  Cres.  422;  S.  C.,  21  K.  C.  181. 


MEASURE  OF  DAMAGES;  USABILITY  TO  CONVEY  GOOD  TITLE.       229 

if  \>y  law  he  might  be  bankrupted  by  his  inability,  from  unfore- 
seen causes,  to  make  title  under  such  circumstances.16 

3.  The  rule  prevails  everywhere,  except  in  several  of  the  New 
England  States,  that  upon  a  breach  of  the  covenants  of  seisin  and 
of  warranty,  the  covenantee's  damages  shall  be  measured  by  the 
consideration  money,  interest  and  expenses,  and  not  by  the  value  of 
the  premises  at  the  time  of  the  eviction  of  the  covenantee.17.  It  has 
been  held  that,  in  this  respect,  an  executory  contract  is  not  distin- 
guishable from  one  that  has  been  executed,  and  that  in  either  case 
the  measure  of  damages  is  the  same.  It  would  be  an  anomaly  if 
the  vendor  could  relieve  himself  from  liability  for  the  increased 
value  of  the  premises  by  simply  executing  a  conveyance  to  the  pur- 
chaser with  a  covenant  of  warranty.18  The  fact  that  the  land  has 

™  SUTHERLAND,  J.,  in  Baldwin  v.  Munn,  2  Wend.  (X.  Y.)  399;  20  Am.  Dec. 
627,  adopting  the  reasoning  of  KENT,  Ch.,  in  Staats  v.  TenEyck,  3  Caines  (N. 
Y. ),  115;  2  Am.  Dec.  254,  where  the  contract  had  .been  executed  by  a  con- 
veyance, with  covenants  for  title. 

17  Post,  §  164. 

"Peters  v.  McKeon,  4  Den.  (N.  Y.)  546.  Drake  v.  Baker,  34  N.  J.  L.  358, 
360.  Dumars  v.  Miller,  34  Pa,  St.  319.  Allen  v.  Anderson,  2  Bibb  (Ky.), 
415.  Blackwell  v.  Laurence  County,  2  Bl.  (Ind.)  143;  Sheets  v.  Andrews, 
2  Bl.  (Ind.)  274.  Threlkeld  v.  Fitzhugh,  3  Leigh  (Va.),  459;  44  Am.  Dec. 
384;  Stout  v.  Jackson,  2  Rand.  (Va.)  132.  Baker  v.  Corbett,  28  Iowa,  317. 
Hammond  v.  Hannin,  21  Mich.  373,  388;  4  Am.  Rep.  490,  COOLEY,  J.,  saying: 
"  One  very  strong  reason  for  limiting  the  recovery  to  the  consideration  money 
and  interest  in  cases  free  from  bad  faith  is,  that  the  measure  of  damages  is 
thus  made  to  conform  to  the  rule  where  the  party  assumes  to  convey  land 
which  he  does  not  own,  and  an  action  is  brought  against  him  on  the  covenants 
of  title  contained  in  his  deed.  This  reason  is  made  specially  prominent  in 
many  of  the  cases,  and  it  cannot  be  denied  that  it  is  an  anomaly,  if  the 
vendee  is  restricted  to  the  recovery  of  one  sum  when  an  ineffectual  deed  is 
given,  but  allowed  to  recover  a  larger  compensation  in  case  the  vendor,  when 
he  discovers  the  dfefect  in  his  title,  has  the  manliness  to  inform  the  vendee 
of  the  fact,  and  to  decline  to  execute  worthless  papers.  Had  H.  (the  vendor) 
executed  and  delivered  a  deed  when  it  was  called  for,  the  present  controversy 
could  not  have  arisen,  and  his  failure  to  do  so,  which  worked  no  additional 
wrong  to  the  vendee,  is  the  only  ground  upon  which  the  plaintiff  can  claim 
to  retain  the  large  damages  which  were  awarded  her  in  the  present  case. 
So  long  as  the  rule  stands  which  thus  limits  the  damages  in  suits  upon  the 
covenants  of  title,  so  long  ought  we,  also,  I  think,  to  adhere  to  the  decisions 
which  restrict  the  recovery,  as  above  stated,  in  actions  upon  contracts  to 
convey."  In  Connell  v.  McLean,  6  Harr.  &  J.  (Md.)  29Z,  30 1,  there  is  an 
attempt  to  show  that  the  rule  should  >be  different  where  the  contract  is 
executory.  It  will  be  found,  on  examination  of  the  American  cases  fixing 


230  MARKETABLE    TITLE    TO    REAL    ESTATE. 

greatly  depreciated  in  value  before  the  time  fixed  for  completing 
the  contract  will  not  affect  the  right  of  the  purchaser  to  recover 
back  the  purchase  money  as  damages.19  The  case  of  Hopkins  v. 
Lee  M  has  been  frequently  cited  in  support  of  the  proposition  that 
a  purchaser  of  lands  is  entitled  to  damages  for  the  loss  of  his 
bargain,  without  regard  to  the  ability  or  inability  of  the  vendor 
to  make  a  title.  But  the  facts  in  that  case  clearly  distinguish  it 
from  one  in  which  an  innocent  vendor  sells  in  the  belief  that  his 
title  is  good.  The  vendor  refused  to  convey  on  the  ground  that 
the  purchaser  had  not  discharged  an  incumbrance  on*  certain 
premises  which  had  been  taken  by  the  vendor  in  exchange  for 
those  which  he  was  to  convey  but  the  evidence  showed  that  the 
incumbrance  had  been  discharged,  so  that  the  real  question  in  the 
case  was,  what  measure  of  damages  shall  be  awarded  against  a 
vendor  who  refuses  to  convey,  leaving  untouched  the  question  of 

the  plaintiff's  measure  of  damages,  for  a  breach  of  the  covenant  of  warranty, 
that  many  of  them  are  rested  on  the  case  of  Flureau  v.  Thornhill,  2  W.  Bl. 
H>7>\  which,  as  we  have  seen,  was  an  action  for  the  breach  of  an  executory 
contract  to  convey  a  good  title,  and  on  cases  which  follow  that  decision,  thus 
assuming  that  whether  the  contract  be  executory  or  executed,  the  measure 
of  damages,  in  case  of  a  breach,  is  the  same. 

It  is  a  curious  fact  that  in  one  State,  where  the  damages  for  a  breach  of 
the  covenant  of  warranty  are  measured  by  the  value  of  the  premises  at  tin- 
time  of  the  breach,  damages  for  the  breach  of  an  executory  contract  from 
want  of  title  are  fixed  at  the  consideration  money  and  interest  (Sautters  v. 
Victory,  35  Vt.  351),  while  in  another  State,  where  the  consideration  money 
and  interest  is  the  measure  of  damages  for  the  breach  of  a  covenant  of 
warranty,  the  purchaser  is  h«ld  entitled  to  damages  for  the  loss  of  his 
bargain  on  failure  of  the  title  where  the  contract  is  executory.  Connell  v. 
McLean.  6  Harr.  &  J.  (Md.)  207.  In  either  case,  a  distinction  is  drawn 
IM-I wern  executed  ami  executory  contracts  as  respects  the  rule  of  damages, 
but  with  directly  oppoftite  results.  Apparently,  the  only  practical  diffci 
lie t wwn  the  two  species  of  contract  with  respect  to  the  rule  of  damages,  i* 
that  executory  contracts  have  usually  only  a  short  time  to  run,  while  a 
covenant  of  warranty  is  of  indefinite  duration,  and  the  vendor  might  fairly 
be  presumed  to  take  the  risk  of  an  increase  in  value  during  a  short  period, 
where  he  \\oiflil  perhaps  l»e  unwilling  to  assume  the  risk  of  a  great  increase 
in  value  during  a  |>crio<l  of  twenty  or  thirty  years  or  more.  Pumpelly  r. 
Phclp-..  40  \.  V.  .-,«),  05;  100  Am.  Dec,  468. 

"Shrvcr  v.  Morgan,  77  Ind.  470. 

"6Wh.  (U.S.)  109. 


MEASURE  OF  DAMAGES  ;  INABILITY  TO  CONVEY  GOOD  TITLE.       231 

his  bona  fides  or  innocence  of  intent  at  the  time  the  contract  was 
made,  or  that  of  his  ability  or  inability  to  perform  the  contract.21 
The  principal  objections  to  the  rule  that  the  purchaser  can  have 
no  damages  for  the  loss  of  his  bargain  where  the  vendor,  acting  in 
good  faith,  is  unable  to  make  title,  are  (1)  that  it  is  a  departure 
from  the  general  rule  that  the  seller  of  property  who  neglects, 
refuses,  or  is  unable  to  perform  his  contract,  must  place  the  pur- 
chaser in  as  good  a  condition  as  if  the  contract  had  been  performed, 
and  that  the  motives  or  purposes  of  the  parties  with  respect  to  the 
performance  of  the  contract  are  irrelevant  to  the  question  of  dam- 
ages, and  (2)  that  such  a  rule  tempts  the  seller  to  violate  his  con- 
tract and  obtain,  himself,  the  benefit  of  the  increase  in  value. 
With  respect  to  the  first  objection,  it  must  suffice  to  say  that  con- 
tracts for  the  sale  of  real  estate  would  seem  distinguishable  from 
contracts  for  the  sale  of  goods  and  merchandise  or  other  personalty, 
in  that  inability  to  perform  the  contract  in  respect  to  these  latter 
seldom  arises  from  want  of  title  in  the  vendor,  but  usually  grows 
out  of  his  want  of  skill,  diligence  or  means  of  performance,  or 
out  of  some  other  default  on  his  part,  so  that  no  ground  is  pre- 
sented for  the  implication  of  a  contract  that  only  the  purchase 
price  shall  be  returned  if  the  title  fails.  The  objection  that  the 
rule  denying  the  purchaser  damages  for  the  loss  of  his  bargain 
tempts  the  vendor  to  violate  his  contract  and  avail  himself  of 
the  increase  in  value  of  the  premises  would  seem  to  be  without 
force  for  two  reasons :  First,  because  the  purchaser  is  not 
restricted  to  nominal  damages  where  the  vendor  refuses  to  per- 
form, or  disables  himself  from  performing  the  contract,  but  may 
recover  damages  for  the  full  value  of  the  property ; 22  and,  second, 
because,  should  the  vendor  ferret  out  a  defect  in  his  title  as 
an  excuse  for  non-performance,  the  purchaser  may  always  elect  to 
take  the  title,  such  as  it  is,  and  compel  specific  performance  by  the 
vendor.23  Against  the  rule  it  has  been  further  urged  that  it  is 
inequitable,  in  that  it  holds  the  purchaser  to  a  bad  bargain  and 
deprives  him  of  the  benefits  of  a  good  one.  But  this  is  true  only 
to  a  limited  extent,  for  the  vendor,  having  a  good  title,  cannot 

21  See  the  remarks  of  the  court  in  Drake  v.  Baker,  34  N.  J.  L.  362,  and 
Baldwin  v.  Munn,  2  Wend.   (N.  Y.)  399,  407;  20  Am.  Dec.  627. 

22  Ante,  §  90. 
"Post,  §  197. 


232  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

escape  his  obligation  to  perform  the  contract,  no  matter  how 
greatly  the  property  may  have  increased  in  value.  The  purchaser 
may  go  into  a  court  of  equity  and  compel  the  vendor  to  convey. 

§  92.  Barter  contracts.  Upon  the  breach  of  a  contract  to 
exchange  lands  of  equal  value,  the  measure  of  damages  would  be, 
where  the  vendor  acts  in  good  faith,  in  those  jurisdictions  in  which 
the  rule  in  Flureau  v.  Thornhill  is  followed,  the  value  of  the  land 
to  be  given  in  exchange  at  the  time  the  contract  was  made."  But 
in  those  jurisdictions  in  which  the  purchaser  from  an  innocent 
vendor  is  allowed  damages  for  the  loss  of  his  bargain,25  or  wherever 
the  vendor  has  acted  in  bad  faith,2*  the  purchaser  will  be  entitled 
to  damages  for  the  present  value  of  the  land  which  should  have 
been  conveyed  to  him  in  exchange.  The  fact  that  the  considera- 
tion passing  from  the  purchaser  consists  of  the  conveyance  of 
land  in  exchange,  or  the  performance  of  services,  or  the  delivery 
of  a  commodity,  instead  of  the  payment  of  money,  does  not,  of 
course,  affect  the  rule  of  damages  for  breach  of  contract  in  either 
case.  If  the  parties  agree  to  exchange  one  tract  of  land  for 
another,  and  the  tract  which  the  plaintiff  agreed  to  convey  appears 
to  be  less  valuable  than  that  which  he  was  to  receive,  themeasureof 
his  damages  will  be  the  difference  in  value  between  the  two  tracts, 
with  the  expenses  of  examining  the  title.27  It  has  been  held  that  if 

14 3  Sedg.  Dam.  (8th  ed.)  §  1020;  2  Sutherland  Dam.  228.  Obviously  there 
ia  no  difference  in  principle  between  a  case  in  which  a  vendor  receives  land 
and  one  in  which  he  receives  money  in  consideration  of  the  conveyance  which 
he  is  to  make.  In  Combs  v.  Scott,  76  Wis.  i'>70,  there  ia,  however,  a  dictum 
that  in  cases  of  barter  contracts,  the  value  of  the  land  (which  should  have 
been  conveyed)  at  the  time  of  the  breach  is  from  necessity  the  measure  of 
damages.  Citing  Brigham  v.  Evans,  113  Mass.  538,  a  case  which,  it  seem-. 
decides  no  more  than  that  the  plaintiff  shall  not  lose  the  benefit  of  his  bargain 
became  the  property  he  was  -to  give  in  even  exchange  was,  at  the  time  of 
the  contract,  much  less  in  value  than  that  which  he  was  to  receive.  There 
had  been  no  appreciable  change  in  the  values  of  the  respective  pieces  of 
property  at  the  time  of  the  breach. 

"Wells  v.  Abernethy,  5  Conn.  222. 

"Devin  v.  Himcr,  29  Iowa,  297.  Biercr  v.  Fretz,  32  Kana.  329.  Greenwood 
V.  Hoyt,  41  Minn.  381. 

n  Fagen  v.  Davison,  2  Duer  (N.  Y.),  163.  It  is  to  be  observed  that  in  this 
case  the  difference  in  value  Iwtween  the  two  pieces  of  property  existed  at 
the  time  of  tin-  i-.-iitnn-t.  N'o  question  was  raised  as  to  any  increase  in  value 
at  the  time  of  the  breach  of  the  contract. 


MEASURE  OF  DAMAGES  ;  INABILITY  TO  CONVEY  GOOD  TITLE.       233 

the  consideration  of  a  contract  to  convey  land  be  the  performance 
of  a  certain  act  by  the  purchaser,  but  before  such  performance 
the  vendor  give  notice  of  his  inability  to  convey  and  his  intent 
to  rescind,  the  purchaser  cannot,  upon  full  performance  on  his 
part  thereafter,  recover  the  value  of  the  land  as  damages.  He 
can  recover  only  whatever  actual  damages  he  has  sustained.28 

§  93.  Expenses  of  examining  the  title.  Other  expenses.  As 
a  general  rule  the  purchaser,  on  failure  of  the  title,  may  recover 
as  damages,  in  addition  to  such  part  of  the  purchase  money  as  has 
been  paid,  the  expenses  incurred  by  him  in  examining  the  title.29 
If  the  vendor  is  innocently  mistaken  as  to  the  goodness  of  his  title, 
and  the  contract  contains  no  warranty  of  ownership,  express  or 
implied,  it  has  been  held  that  the  purchaser  cannot  recover  such 
expenses.30  But  the  mere  fact  that  the  parties  were  aware,  at  the 
time  of  the  contract,  that  the  vendor  did  not  have  the  title,  will 
not  deprive  the  purchaser  of  the  right  to  recover  the  expenses  of 
examining  the  title,  if  the  parties  believed  that  the  vendor 

28Rohr  v.  Kindt,  3  W.  &  S.  (Pa.)  563;  39  Am.  Dec.  53.  Here  the  con- 
sideration of  the  contract  of  sale  was  that  the  purchaser  should  withdraw  a 
caveat  against  the  probate  of  a  certain  will  in  which  the  vendor  was  the 
principal  devisee.  The  vendor  refused  to  convey  on  the  ground,  among 
others,  that  she  had  only  a  life  estate,  and  the  court  held  that  the  purchaser 
was  not  entitled  to  the  fee  simple  value  of  the  land  (ten  acres)  as  damages, 
but  only  such  damages  as  he  had  actually  sustained. 

28  Post,  §  243.  1  Sugd.  Vend.  (8th  Am.  ed.)  547;  2  Sutherland  Dam.  22; 
3  Sedg.  Dam.  (8th  ed.)  §  1017.  Canfield  v.  Gilbert,  4  Esp.  221;  Kirtland  v. 
Pounsett,  2  Taunt.  145.  (But  see  Wilder  v.  Fort,  4  Taunt.  334.)  Bigler  v. 
Morgan,  77  N.  Y.  312;  Cockroft  v.  N".  Y.  &  Hud.  R.  R.  Co.,  69  N.  Y.  201. 
Drake  v.  Gaffney,  171  N.  Y.  Supp.  131,  183  App  Div.  577.  Lee  v.  Dean, 
3  Whart.  (Pa.)  316.  Bitner  v.  Brough,  11  Pa.  St.  127.  Northridge  v.  Moore, 
118  N.  Y.  422;  23  N".  E.  Rep.  570,  where  BRADLEY,  J.,  delivering  the  opinion 
of  the  court,  said:  "The  vendee  is  not  required  to  take  anything  less  than 
a  good  marketable  title,  and  the  precautionary  means  of  ascertaining  about 
it  by  examination  before  parting  with  the  purchase  money  and  accepting 
a  conveyance,  are  properly  made  available  by  way  of  protection,  and*  unless 
an  understanding  in  some  manner  appear  to  the  contrary,  the  examination 
of  the  title  by  the  vendee  and  the  reasonable  expense  of  making  it,  may  be 
regarded  as  in  the  contemplation  of  the  parties,  and  treated  as  properly 
incidental  to  the  contractual  situation,  and,  consequently,  the  amount  of  such 
expense  may,  in  the  event  of  failure  of  the  vendor  to  convey,  be  deemed 
special  damages  resulting  from  the  breach,  and  recoverable  as  sudi. 

••Day  v.  Nason,  100  N.  Y.  166;  2  N.  E.  Rep.  382. 
30 


234  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

would  acquire  title  before  the  time  stipulated  for  the  conveyance.81 
Of  course,  if  the  purchaser  agreed  to  take  the  title,  such  as  it 
might  be,  he  could  not  recover  the  expenses  of  an  examination. 
Where  the  purchaser  resold  the  property  before  he  had  examined 
the  title,  the  court  refused  to  include  in  his  damages,  on  failure  of 
the  title,  the  sums  in  which  he  was  liable  to  his  vendees  for 
expenses  incurred  by  them  in  examining  the  title."  Nor  can  he 
recover  the  costs  of  other  litigation  between  himself  and  the 
vendor  growing  out  of  the  contract,  such  as  an  unsuccessful  suit 
by  the  latter  for  specific  performance.  By  analogy  to  the  rule 
which  prevails  in  an  action  for  breach  of  a  covenant  of  warranty, 
it  would  seem  that  the  purchaser  could  recover  costs  and  expenses 
incurred  by  him  in  defending  the  title  against  an  adverse  claimant, 
provided  the  vendor  had  notice  to  appear  and  defend  the  suit." 
§  04.  Interest  as  an  element  of  damages.  In  those  jurisdic- 
tions in  which  Flureau  v.  Thornhill  is  followed,  the  purchaser 
will,  as  a  general  rule,  be  entitled  to  recover,  as  an  element  of  his 
damages  on  failure  of  the  title,  interest  on  such  of  the  purchase 
money  as  he  may  have  paid,86  on  money  kept  idle  by  him  with 
which  to  pay  the  purchase  money,  and  also  on  money  borrowed  by 
him  for  that  purpose.8*  It  seems,  however,  that  the  purchaser  can- 
not recover  interest  if  there  is  no  liability  for  rents  and  profits 
on  his  part  to  the  true  owner.87  If  the  purchaser  sell  stocks  or 
bonds  to  raise  a  fund  with  which  to  pay  the  purchase  money,  and 
the  title  fails,  he  cannot  recover  compensation  for  loss  occasioned 
by  a  rise  in  value  of  the  stocks,  since  the  sale  would  have  pro- 

"  Northridge  v.  Moore,  US  N.  Y.  420:  23  X.  E.  Rep.  570. 

"Walker  v.  Moore,  10  B.  A  C.  416. 

"Hodge*  v.   I.it.hfM'1.1.  1  Bing.  N.  C.  492. 

**Po*t,  ft|  173,  175.  A  bond  to  indemnify  against  all  claims  and  incum- 
bramrn,  etc.,  and  to  "  pay  all  coats,  charges,  or  expenses  necessary  to  defend 
the  premise*  *'  against  adverse  claims,  embrace*  fees  paid  counsel,  and  other 
necewwry  expends  incurred  in  defending  ejectment  for  the  premises.  Robin- 
•on  v.  Brakewell.  25  Pa.  St.  424. 

"1  Sugd.  Vend.  (8th  Am.  ed.)  3(10;  2  Sugd.  Vend.  (8th  Am.  ed.)  329;  2 
Sutherland  Dam.  221.  Gates  v.  Parmly,  03  Wi«.  2fl4,  66  N.  W.  253.  Davis 
v.  J<«e.  52  Wanh.  330.  100  Pa<-.  7.V2.  132  Am.  St.  Rep.  073.  See,  generally, 
the  .  .i-r.  rited  throughout  this  chapter. 

"  I   Sugd.  Vend.    (8th  Am.  ed.)   300. 

"  Pwt,  next  iection,  "  R«nta  and  Profits." 


MEASURE  OF  DAMAGES  ;  INABILITY  TO  CONVEY  GOOD  TITLE.       235 

tected  him  from  loss  if  the  value  had  depreciated.38  In  Tennessee, 
a  State  in  which  the  purchaser  is  allowed  damages  for  the  loss  of 
his  bargain,  without  regard  to  good  faith  on  the  part  of  the  vendor, 
it  has  been  held  that  interest,  as  such,  cannot  be  allowed  on  the 
damages  awarded  from  the  time  of  the  breach,  but  that  the  jury 
might,  in  their  discretion,  under  all  the  circumstances  of  the 
case,  allow  interest  by  way  of  enhancing  the  damages,  and  that  it 
was  no  error  in  the  court  to  dived  the  jury  to  compute  interest 
from  the  time  of  the  breach.39 

§  95.  Rents  and  profits.  It  seems  that  rents  and  profits 
enjoyed  by  a  purchaser  in  possession  cannot  be  set  off  against 
damages  in  an  action  by  him  against  the  vendor  for  failing  to 
make  a  title.  If  the  vendor  neither  owned  the  premises  nor  had 
a  right  to  occupy  them  nor  to  suffer  the  purchaser  to  occupy  them, 
he  cannot  have  the  benefit  of  possession  by  the  purchaser.  The 
purchaser  is  liable  to  the  true  owner  for  the  mesne  profits.40  The 
rule  may  be  different  where  the  purchaser  seeks  to  rescind  the 
contract  and  recover  back  the  purchase  money.  Such  an  action 
cannot  be  maintained  except  upon  the  theory  that  the  premises 
have  been  restored  to  the  vendor,  who,  being  in  possession,  would 
be  bound  to  answer  to  the  real  owner  for  the  mesne  profits,  and 
who  for  that  reason  is  generally  allowed  to  set  off  the  rents  and 
profits  against  interest  on  the  purchase  money  which  he  is  called 
upon  to  restore.41  But  if  the  real  owner  acquits  the  purchaser  of 

88 1  Sugd.  Vend.   (7th  Am.  ed.)   302   (258). 

38  Shaw  v.  Wilkins,  8  Humph.   (Tenn.)    646;  49  Am.  Dec.  692. 

<°  Fletcher  v.  Button,  6  Barb.  (N.  Y.)   646.     Dunnica  v.  Sharp,  7  Mo.  71. 

41  Post,  ch.  24.  Taylor  v.  Porter,  1  Dana  (Ky.),  585;  25  Am.  Dec.  155, 
where  a  head  note,  which  is  sustained  by  the  opinion,  says :  "  So  long  as  the 
parties  abide  by  the  contract  the  vendee  in  possession  is  not  chargeable  with 
rents  nor  entitled  to  interest  on  the  purchase  money  he  has  paid;  after  dis- 
affirmance  he  is  chargeable  with  rents  until  he  surrenders  possession,  and  is 
entitled  to  interest  until  his  money  is  refunded.  If  his  payment  was  partial 
only,  there  should  be  an  equitable  adjustment  of  rent  and  interest."  See 
also  Crocker  v.  Ingersoll  Eng.  Co.,  249  Fed.  31,  161  C.  C.  A.  91.  In  Combs 
V.  Tarlton,  2  Dana  (Ky.),  464,  it  was  held  that  in  an  action  at  law  by  the 
purchaser  to  recover  damages  for  the  vendor's  failure  to  make  title,  the 
pernancy  of  the  rents  and  profits  by  the  purchaser  in  possession  could  not  go 
in  reduction  of  the  damages,  but  that  the  vendor  might  go  into  equity  anc! 
have  an  account  of  the  rents  and  profits,  and  have  them  applied  to  the 
interest  on  the  purchase  money  awarded  as  damages.  Herndon  v.  Venable, 
7  Dana  (Ky.),  371;  Lowry  v.  Cox,  2  Dana  (Ky.),  470. 


236  MARKETABLE    TITLE    TO    REAL    ESTATE. 

all  demand  for  mesrae  profits,  it  has  been  held  that  the  latter 
cannot  recover  interest  on  the  consideration  money  awarded  as 
damages."  And  as  a  general  rule  the  purchaser  can  only  recover 
interest  for  such  time  as  he  himself  is  liable  to  the  real  owner 
for  the  mesne  profits ; 43  hence,  it  has  been  held  that  for  such 
time  as  the  claims  of  the  real  owner  are  barred  by  the  statute 
of  limitations,  the  enjoyment  of  the  rents  and  profits  will  be  a 
set-off  against  the  purchaser's  demand  for  interest  on  the  con- 
sideration money.  If  the  purchaser  in  possession  has  not  been 
and  cannot  be  compelled  to  account  to  the  true  owner  for  the  mesne 
profits,  it  has  been  held  that  he  cannot  recover  interest  on  the 
purchase  money  against  the  vendor.44 

§  96.  Improvements.  If  the  title  fail  the  purchaser  cannot 
recover  against  a  vendor  acting  in  good  faith  the  value  of  improve- 
ments placed  by  him  on  the  premises.  If  he  expends  money  in 
improvements  when  he  is  uncertain  about  the  title,  he  does  so  at 
his  own  risk.45  Besides,  in  most  of  the  States  there  are  statutory 

•Post,  §  280.    White  v.  Tucker,  52  Misa.  147. 

"Thompson  v.  Guthrie,  9  Leigh  (Va.),  101;  33  Am.  Dec.  225. 

44  Post.  §  172.  Cogwell  v.  Lyons,  3  J.  J.  Marsh.  (Ky.)  41,  which,  how- 
ever, was  a  suit  in  equity  for  specific  performance  and  damages. 

*2  Sugd.  Vend.  (8th  Am.  ed.)  515  (748).  But  the  rule  is  otherwise  in 
equity.  Id.  514.  Walton  v.  Meeks,  120  N.  Y.  79;  23  N.  E.  Rep.  1115,  dis- 
tinguishing Gilbert  v.  Petelder,  38  N".  Y.  135,  where  the  contract  obliged  the 
purrha-iT-  to  expend  a  certain  amount  in  improvements  before  they  should 
be  entitled  to  a  deed.  Peters  v.  McKeon,  4  Den.  (N.  Y.)  546,  550.  Hert/og 
v.  Hertzog,  34  Pa.  St.  418,  420,  obiter.  Worthington  v.  Warrington,  8  C.  B. 
134;  65  E.  C.  L.  134,  where  it  was  said  by  COLEMAX,  J.:  "I  think  it  would 
be  extremely  hard  if  it  were  held  that  the  plaintiff  (purchaser)  was  at  liberty 
at  once  to  make  alterations  and  then  to  throw  the  expense  of  them  upon  the 
defendant  in  the  event  of  his  not  being  able  to  make  a  good  title.  Every 
one  who  purchases  land  knows  that  difficulties  may  exist  as  to  the  making 
a  title,  which  were  not  anticipated  at  the  time  of  entering  into  the  contract. 
But,  if  the  purchaser  thinks  proper  to  enter  into  possession  and  to  incur 
expenses  in  alterations  before  the  title  is  ascertained,  he  does  so  at  his  own 
ri<k.<(  In  Sedgwick  Damages  (8th  ed),  section  1017,  it  is  said:  "Where  the 
plaintiff  was  let  into  possession  under  the  contract,  he  may  recover  the 
reawmable  value  of  the  improvements,  lew  the  value  of  the  use  of  the  land 
(Bellamy  v.  Ragudale,  14  B.  Mon.  (Ky.)  293;  Sheanl  v.  Welburn,  67  Mirh. 
887),  probably  in  all  cases,  but  certainly  when  the  defendant  knew  he  had 
no  title.  Erickson  v.  Bennett,  39  Minn.  326."  The  case  first  cited  was  one 
in  which  the  vendor  refused  to  convey;  no  question  of  title  was  raised.  The 
second  caws  was  one  in  which  the  parties  mutually  agreed  to  rescind  on 


MEASURE  OF  DAMAGES  ;  INABILITY  TO  CONVEY  GOOD  TITLE.       237 

provisions  which  entitle  the  purchaser  to  an  allowance  for  such 
expenditures  in  proceedings  against  him  by  the  true  owner.46  Of 
course  the  purchaser  cannot  recover  for  improvements  made  by 
him  after  discovering  the  vendor's  inability  to  convey,47  unless,  it 
is  apprehended,  he  was  induced  to  lay  out  money  on  the  vendor's 
engagement  to  perfect  the  title.48  If  the  purchaser  has  recovered 
against  the  real  owner  the  value  of  improvements  put  on  the  land 
by  the  vendor  before  the  sale,  the  vendor,  when  sued  for  breach  of 
contract  to  make  title,  must  have  credit  for  the  amount  of  such 
recovery.49 

Where  the  vendor  fraudulently  conceals  or  misrepresents  the 
state  of  his  title,  the  purchaser  may  recover  for  improvements.50 
It  would  seem  that  if  the  purchaser,  instead  of  affirming  the  con- 
tract by  action  for  damages,  seeks  to  rescind,51  which  implies  a 
restoration  of  the  premises  with  the  improvements  thereon  to  the 
vendor,  he  would  in  an  action  to  recover  back  the  purchase  money 
be  entitled  also  to  recover  the  value  of  the  improvements  as  money 
expended  for  the  use  and  benefit  of  the  vendor.  Inasmuch  as  the 
occupant  of  the  premises  would  generally  be  entitled  to  an  allow- 
ance for  improvements  against  the  true  owner,  it  would  be  inequi- 
table to  relieve  him  from  the  purchaser's  claim. 

grounds  other  than  failure  of  title.  In  Tyson  v.  Eyrick,  141  Pa.  St.  296; 
21  Atl.  Rep.  635,  the  purchaser  was  under  the  contract  entitled  to  a  lot  fifty 
feet  wide,  but  it  was  discovered,  after  he  had  built  on  the  lot,  that  the  vendor 
had  no  title  to  a  strip  one  foot  in  width.  It  was  held  that  he  could  not 
recover  damages  for  the  misplacement  of  his  biiilding  and  the  expense  of 
contracting  his  walls.  "  It  was:  his  duty  before  expending  his  money  on 
valuable  improvements  to  ascertain  and  know  his  lines  and  to  locate  his 
buildings  accordingly." 

44  It  seems,  also,  that  without  the  aid  of  positive  enactment  the  purchaser 
will,  in  equity,  be  entitled  to  an  allowance  against  the  real  owner  for  improve- 
ments made  in  good  faith.  2  Story  Eq.  Jur.  1237.  Bright  v.  Boyd,  1  Story 
(C.  C.)  478;  Benedict  v.  Oilman,  4  Paige  (N".  Y.),  58.  Green  v.  Biddle,  8 
Wh.  (U.  S. )  1.  There  can  be  no  doubt  of  his  right  to  the  allowance  if  the 
real  owner  stood  by  and  saw  the  improvements  going  on  without  asserting 
hia  title.  Southall  v.  McKeand,  1  Wash.  (Va.)  336.  Green  v.  Biddle,  8  Wh. 
(U.  S.)  1,  77,  88. 

"Lindley  v.  Lukin,  1  Bl.   (Ind.)  266. 

*As  in  Martin  v.  Atkinson,  7  Ga.  228;   50  Am.  Dec.  403. 

49McKinney  v.  Watts,  3  A.  K.  Marsh.  (Ky.)   268. 

^Erickson  v.  Burnet,  39  Minn.  326. 

"Taylor  v.  Porter,  1  Dana  (Ky.),  421;  25  Am.  Dec.  155.  But  see  Wilhelm 
v.  Fimple,  31  Iowa,  137;  7  Am.  Rep.  117. 


238  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

The  purchaser  will  not  be  allowed  for  repairs  made  after  he  has 
been  informed  of  a  defect  in  the  title,  except  such  as  may  be 
necessary  to  keep  the  premises  in  common  condition." 

§  96a.  Failure  of  title  to  part.  The  measure  of  damages  for 
failure  of  title  to  part  only  of  the  lands  included  in  the  contract, 
is  such  proportion  of  the  whole  consideration  agreed  to  be  paid, 
as  the  value,  at  the  time  of  the  purchase,  of  the  part  to  which  the 
title  is  found  defective  bears  to  the  value  of  the  whole  quantity 
purchased.5*  The  rule  is  the  same  in  an  action  for  breach  of  a 
covenant  of  warranty.64 

§97.  WHEBE  THE  VENDOB  ACTS  IN  BAD  FAITH.  If  the 
vendor  fraudulently  misrepresent  or  conceal  the  state  of  his  title 
the  purchaser  will,  as  a  general  rule,  be  entitled  to  require  the 
vendor  to  place  him  in  as  good  a  position  as  if  the  contract  had 
been  performed ;  in  other  words,  he  may  have  damages  for  the  loss 
of  his  bargain.65  So,  also,  if  he  wilfully  misrepresents  the  state 
of  his  title.54 

In  England,  however,  it  is  held  that  such  fraud  cannot  aggravate 
the  purchaser's  damages  in  an  action  for  breach  of  the  contract; 
he  must  resort  to  his  action  for  deceit,  in  which  he  will  recover 
damages  for  all  that  he  has  lost  through  the  vendor's  non-per- 
formance of  the  contract.  The  reason  given  for  this  distinction 
is  that  the  good  or  bad  faith  with  which  a  party  enters  into  a 
contract  is  immaterial  to  the  quantum  of  damages  resulting  from 
a  non-performance.87  The  distinction  does  not  appear  to  have  been 

•M  Sugd.  Vend.  (8th  Am.  ed.)  391.  Thompson  v.  Kilcrease,  14  La.  Ann. 
340. 

"Gates  v.  Parmly,  93  Wis.  294;  68  N.  W.  253;  67  N.  W.  73fl. 

MPo*t,  |  170. 

"1  Sugd.  Vend.  ch.  9,  |  3;  3  Sedg.  Dam.  (8th.  ed.)  §  1010.  Krumm  v. 
Beach,  96  N.  Y.  398;  Peters  v.  McKeon,  4  Den.  (N.  Y.)  546;  Northridge  v. 
Moore,  118  N.  Y.  419;  23  N.  E.  Rep.  670.  In  a  case  of  fraud  by  the  vendor 
the  measure  of  damages  is  full  indemnity  to  the  purchaser.  Cross  v.  Devine, 
46  Hun  (N.  Y.),  421.  Sweem  v.  Steele,  5  Iowa,  352.  Tracy  v.  Gunn,  29 
Kann.  508.  Goff  v.  Hawks,  5  J.  J.  Marsh.  (Ky.)  342.  Erickson  v.  Bennett, 
30  MSnn.  326.  Lancoure  v.  Diipre,  (Minn.)  65  N.  W.  Rep.  121).  Homer  v. 
Beaaeley,  106  Md.  193,  65  Atl.  820;  Hahl  &.  Co.  v.  West,  (Tex.  Civ.  App.) 
129  8.  W.  876;  Clifton  v.  Charles,  53  Tex.  Civ.  App.  448.  116  S.  W.  120. 

"Bugajftki  v.  Sikwa,  200  Mich.  415,  166  X.  W.  863. 

"2  Add.  Cont.  (8th  ed.)  410  (901)  ;  3  Sedg.  Dam.  (8th  ed.)  ft  1010.  Sikw 
v.  Wild,  1  Beat  &  S.  587;  Bain  v.  Fothergill.  7  II.  L.  158. 


MEASURE  OF  DAMAGES  ;  INABILITY  TO  CONVEY  GOOD  TITLE.       239 

observed  in  America.  It  seems  that  if  the  purchaser  proceed  in 
equity  for  a  rescission  of  the  contract  on  the  ground  of  fraud, 
instead  of  at  law  for  damages,  he  can  have  a  decree  only  for 
the  purchase  money  paid,  with  interest,  and  the  value  of  his 
improvements,  after  deducting  the  mesne  profits  of  the  land  while 
in  his  possession.58  In  Pennsylvania  it  is  held  that  if  the  acts  of 
the  vendor  in  selling  without  title  amount  to  a  fraud,  the  pur- 
chaser will  be  entitled  to  damages  sufficient  to  compensate  him 
for  all  expenses  accruing  from  the  want  of  title,  but  not,  it  seems, 
to  damages  for  the  loss  of  his  bargain.59  In  Texas  the  rule  is  that 
the  purchaser  cannot,  in  a  case  of  fraudulent  representations  as 
to  the  title,  recover  for  the  loss  of  his  bargain  or  the  increased 
value  of  the  land,  unless  such  increase  is  the  result  of  his  labor 
and  expenses,  that  is,  unless  he  has  put  improvements  on  the 
premises.60  What  constitutes  fraud  by  the  vendor  in  respect  to 
the  title  will  be  elsewhere  considered  in  this  work.61  It  will 
suffice  to  say  here  that,  as  a  general  rule,  a  vendor  who  enters  into 
the  contract  knowing  that  his  title  is  not  good,  and  fails  to  dis- 
close that  fact  to  the  purchaser,  is  guilty  of  fraud.  It  has  been 
held,  however,  that  there  is  no  obligation  upon  the  vendor  to  dis- 
close defects  of  title  which  could  be  discovered  upon  such  ordinary 
investigation  as  a  prudent  man  should  make.62  But  inasmuch  as 
it  is  settled  that  a  vendor  is  liable  to  the  purchaser  in  substantial 
damages  when  he  knows  that  the  title  is  not  complete,  even  though 
he  had  a  reasonable  expectation  of  completing  it  by  the  time  fixed 
for  performing  the  contract,  there  would  seem  to  be  no  great 
hardship  in  imposing  the  same .  consequences  upon  a  vendor  who 
not  only  knows  that  his  title  is  defective,  but  fails  to  disclose  that 
fact  in  his  negotiations  with  the  purchaser.  Whether  the  vendor 
has  been  guilty  of  fraud  in  respect  to  the  title,  is  a  question  of 

58  Bryan  v.  Boothe,  30  Ala.  311. 

59  Good  v.  Good,  9  Watts    (Pa.),  567;   Lee  v.  Dean,  3  Whart.    (Pa.)    316; 
Hertzog  v.  Hertzog,  34  Pa.  St.  418;  Meason  v.  Kaine,  67  Pa.  St.  126;  Burk 
v.  Serrill,  80  Pa.  413;  21  Am.  Rep.  105.    But  see  King  v.  Pyle,  8  S.  &  R. 
(Pa.)    166;  Bitner  v.  Brough,  11  Pa.  St.  127. 

"Haddock  v.  Taylor,  74  Tex.  216;   11  S.  W.  Rep.  1093. 
61  Post,  ch.  11. 

*2McConnell  v.  Dunlop,  Hard.    (Ky.)   44;  3  Am.  Dec.  723;   Stephenson  v. 
Harrison,  3  Litt.    (Ky.)    170. 


240  MARKETABLE    TITLE    TO    REAL    ESTATE. 

fact  to  be  determined  by  the  jury.  Instructions  to  the  jury  should 
not  be  so  drawn  as  to  assume  the  existence  of  fraud  in  the  vendor.63 
Accordingly  it  has  been  held  error  in  the  court,  or  &L  inquiry  of 
damages,  to  instruct  the  jury  that  the  failurte  of  the  vendor  to 
perform  his  contract  raises  a  presumption  of  fraud,  and  authorizes 
them  to  award  the  purchaser  damages  for  the  loss  of  his  bargain." 

It  is  also  error  in  the  court  to  assume  the  non-existence  of  fraud 
on  the  part  of  the  vendor  from  his  inability  to  convey,  and,  upon  a 
motion  for  judgment  by  default,  to  assess  the  damages  at  the  con- 
sideration money  and  interest  without  directing  an  inquiry  by  a 
jury,  even  though  the  declaration  contained  no  express  averment 
of  fraud.16  It  has  been  held  that  if  the  title  has  been  made  so 
doubtful  by  reason  of  the  vendor's  unauthorized  dealings  with  the 
property  that  the  purchaser  cannot  be  compelled  to  take  it,  the 
latter  may  have  damages  for  the  loss  of  his  bargain.66 

The  purchaser  is  not  entitled  to  substantial  damages  where  the 
vendor's  fraud  is  of  a  kind,  or  is  perpetrated  under  circumstances, 
that  can  operate  him  no  injury.67 

In  New  York  it  is  held,  in  case  of  fraudulent  misrepresenta- 
tions as  to  the  title,  that  it  is  not  necessary  for  the  plaintiff  to 

allege  nor  prove  actual  damages." 

§  9g    WHERE    THE    VENDOR   SELLS   EXPECTING   TO   OBTAIN 

THE  TITLE.  It  may  happen  that  a  vendor,  without  legal  or  equi- 
table title,  sells  lands  with  the  bond  fide  intention  or  expectation 
of  acquiring  the  complete  legal  title  by  the  time  fixed  for  com- 
pleting the  contract.  And  it  frequently  happens  that,  having  the 
equitable  title,  he  sells  expecting  to  get  in  the  legal  title  and  to  be 
able  to  convey  at  the  appointed  time.  In  the  former  case,  the  con- 
tract being  a  mere  speculation  on  his  part,  it  is  apprehended  that 
the  vendor  would  be  liable  to  the  purchaser  for  the  loss  of  his 

"Darin  v.  Lewb,  4  Bibb  (Ky.),  466. 

••Rutledge  v.  Laurence,  1  A.  K.  Marsh.  (Ky.)   396. 

•Golf  v.  Hawk*.  5  J.  J.  Marsh.   (Ky.)   342. 

*WohlfarUi  v.  Chamberlain,  14  Daly  (N.  Y.),  180.  In  this  case,  Uie 
vendor  derived  title  through  a  *ale  previouwly  made  by  himself  an  an  assignee 
for  the  horn-fit  of  creditor*,  the  oircumatancefl  of  which  strongly  tended  to 
•how  fraud  on  hit  part,  and  rendered  the  title  doubtful. 

•Port,  ch.  11. 

•  Blmnenfeld  v.  Stine,  87  N.  Y.  Supp.  81;  42  Misc.  411. 


MEASURE  OF  DAMAGES  ;  INABILITY  TO  CONVEY  GOOD  TITLE.       241 

bargain.  It  has  been  so  held  in  the  latter  case  with  less  reason. 
The  leading  case  on  this  point  is  Hopkins  v.  Grazebrook.69  Here 
the  purchase^*  DI  an  estate  put  it  up  at  auction  -before  he  himself 
had  received  a  convjyance,  and  afterwards  his  vendor  refused 
to  convey,  and  it  was  held  that  the  purchaser  at  auction  was 
entitled  to  damages  for  the  loss  of  his  bargain.  This  case  has 
been  criticised  upon  the  ground  that  equitable  titles  are  as  much 
the  subject  of  valid  sale  as  other  property.70.  The  decision  seems, 
however^  to  have  proceeded  largely  upon  the  idfta  that  it  was  a 
Sraud  in  the  vendor  to  hold  out  the  estate  as  his  own,  when  he 
knew  he  had  not  the  legal  title.  Of  course,  the  sale  of  an 
equitable  'title,  as  such,  is  valid  and  enforcible.  But  the  sale  of 
an  estate  without  disclosing  the  fact  that  the  vendor's  title  is 
merely  equitable  presents  a  very  different  question.  With 
stronger  reason  it  has  been  held  that  one  who  falsely  or  wrong- 
fully assumes  authority  to  sell  as  agent  or  auctioneer,  will  -be 
liable  to  the  purchaser  for  the  loss  of  his  bargain,  if  the  owner 
refuse  to  ratify  and  perform  the  contract.71  Upon  a  principle 
similar  to  that  which  makes  the  vendor  liable  for  the  loss  of  the 
purchaser's  bargain,  where  the  title  turns  out  to  be  equitable 
only,  and  the  holder  of  the  legal  title  refuses  to  convey,  it  has 
been  held  that  if  the  vendor  enter  into  the  contract  knowing 
that  his  ability  to  convey  a  perfect  title  depends  upon  a  con- 
tingency, and  that  contingency  do  not  transpire,  the  purchaser 
will  be  entitled  to  damages  for  the  loss  of  his  bargain.72  The  lead- 
ing American  case  upon  this  point  is  Pumpelly  v.  Phelps.73  There, 
a  trustee  having  power  to  convey  only  upon  the  written  consent 
of  the  cestui  que  trust,  sold  the  estate  but  was  unable  to  obtain 

w  6  B.  &  C.  31. 

70 1  Sugd.  Vend.    (8th  Am.  ed.)    540. 

71  Bush  v.  Cole,  23  N.  Y.  261;  84  Am.  Dec.  343,  where  an  auctioneer  sold 
the  premises  for  less  than  the  •sum.  at  which  he  was  authorized  to  sell  by 
his  principal.  But  see  Key  v.  Key.  3  Head  (Tenn.),  448,  451,  where  it  was 
said :  "  Where  a  man,  without  authority,  sells  the  land  of  another  and 
enters  into  no  covenants,  but  receives  the  consideration,  the  measure  of 
damages  would  be  the  money  received,  and  interest. 

72Chitty  Cont.  (9th  Eng.  ed.)  289;  3  Sedg.  Dam.  (8th  ed.)  §  1011.  Contra, 
Dobson  v.  Zimmerman,  55  Tex.  Civ.  App.  394,  118  S.  W.  236. 

"40  N.  Y.  5<\  100  Am.  Dec.  468;  S.  C.  nom.  Brinkerhoff  v.  Phelps,  43 
Barb.  (N.  Y.)  4o9.  Kiger  v.  McCarthy  Co.,  10  Cal.  App.  308,  101  Pac.  928. 

31 


242  MARKETABLE    TITLE    TO    RKA1.    KSTATE. 

such  consent,  and  it  was  held  that  the  purchaser  might  recover 
as  damages  the  difference  between  the  contract  price  and  the 
value  of  the  land  at  the  time  of  the  breach,  though  the  vendor 
entered  into  the  contract  in  good  faith,  believing  that  the  con- 
sent of  the  cestui  que  trust  would  be  given.  But  if  the  purchaser 
knows  at  the  time  of  the  contract  that  the  ability  of  the  vendor  to 
convey  depends  upon  a  contingency,  the  better  opinion  seems  to  be 
that  he  can  recover  only  nominal  damages,  if  the  vendor  be  unable 
to  complete  the  contract,74  unless,  indeed,  having  in  view  that  con- 
tingency, the  vendor  nevertheless  undertakes  to  perfect  the  title  by 
a  specified  time.75  Of  course,  if  the  purchaser  knows  that  the 
title  of  the  vendor  is  merely  equitable,  but  agrees  to  accept  it, 
such  as  it  is,  he  cannot  recover  either  nominal  or  substantial 
damages,  if  the  vendor  be  unable  to  convey.78  For  the  same 
reasons  it  has  been  frequently  held  that  a  vendor  in  good  faith 
who  is  unable  to  procure  his  wife  to  join  in  the  conveyance,  and 
relinquish  her  contingent  right,  of  dower,  must  answer  in  damages 
to  the  purchaser  for  the  loss  of  his  bargain.77  It  cannot  be  denied 
that  this  rule  would  produce  a  hardship  in  a  case  in  which  the 
vrndor  had  been  induced  by  his  wife  to  believe  that  she  would 
relinquish  her  rights  in  the  premises.  At  the  same  time  it  must  be 
rememlxred  that  if  the  vendor  desires  to  escape  from  the  contract, 
lie  would,  if  liable  for  nominal  damages  only,  have  a  strong  tempt a- 

"Margraf  v.  Muir,  57  X.  Y.  155,  where  the  vendor  had  only  a  dower  right 
in  the  premises,  and  the  purchaser  knew  that  an  order  of  court  authori/in<,' 
a  conveyance  would  have  to  he  obtained,  the  rights  of  infants  being  involved, 
and,  also,  that  under  the  peculiar  circumstances  of  the  case,  such  an  order 
could  not  be  obtained  without  deceiving  the  court  as  to  the  true  value  of  the 
premises.  Distinguishing  Pumpelly  v.  Phelps,  40  X.  Y.  59;  100  Am.  Dec. 
468. 

"Thin,  in  Shaw  v.  Wilkins,  8  Humph.  (Tenn.)  048,  the  vendor  informed 
the  purchaser  at  the  time  of  the  contract  that  the  title  was  outstanding  in 
third  parties  and  that  he  expected  to  obtain  it  by  the  time  fixed  for  com- 
pleting tin-  contract.  The  vendor  Iieing  unable  to  get  in  the  title,  it  was  held 
that  the  purchaser  might  recover  damages  for  the  value  of  the  land  at  the 
time  of  the  breach. 

"Ante,  111.     2  Sutherland  Dam.  221. 

"Post,  ch.  19.  Drake  v.  Baker.  .!»  V.  .].  L.  35S.  Tirmbey  v.  Kinsey,  18 
Hun  (N.  Y.  >.  J .-):•:  Heiinburg  v.  IMIIHV.  .T.  X.  V.  Super.  Ct.  35.  40.  Martin 
v.  M.-rrin.  .".7  In. I.  .'VI;  Jti  Am.  I!rp.  4:, ;  Puterhaugh  v.  Puterbaugh,  7  hid. 
App.  280;  8.  C.  34  N.  E.  Rep.  611. 


MEASURE  OF  DAMAGES  ;  INABILITY  TO  CONVEY  GOOD  TITLE.       243 

tion  to  collude  with  his  wife  and  induce  her  to  withhold  her  con- 
sent. In  Pennsylvania  it  has  been  held  that  if  the  wife  refuse  to 
join  in  the  conveyance,  the  purchaser  can  recover  nominal  damages 
only,  for  the  reason  that  the  law  will  not  indirectly  coerce  specific 
performance  on  the  part  of  the  wife  by  awarding  punitive  damages 
against  the  husband.78 

If  the  vendor  contract  that  a  third  person  shall  convey  a  title  to 
the  land,  the  measure  of  damages  will  be  the  value  of  the  land  at 

the  time  of  the  breach.79 

8  99   WHERE  THE  VEUDOR  REFUSES  TO  CURE  A  DEFECT  OR 

REMOVE  INCTJMBRANCES.  Where  the  title  is  defective  or  the 
estate  incumbered,  and  the  vendor  has  the  power  to  cure  the  defect 
or  remove  the  incumbrance,  but  neglects  or  refuses  so  to  do,  the 
purchaser  may  recover  as  damages  the  value  of  the  premises  at  the* 
time  of  the  breach.80  Upon  the  same  principle  it  has  been  held  that 
if  a  vendor  expressly  agree  to  perfect  the  title,  or  to  do  some  act 
necessary  to  save  the  purchaser  harmless  from  the  claims  or 
demands  of  third  persons,  and  fails  to  perform  his  contract  in  those 
respects,  whereby  the  estate  is  lost  to  the  purchaser,  the  rule  limit- 
ing the  damages  to  the  consideration  money  does  not  apply,  and  the 
purchaser  may  recover  full  damages  for  whatever  loss  he  has  sus- 
tained.81 If  the  purchaser  himself  lay  out  money  in  removing 

7SBurk  v.  Serrill,  80  Pa.  St.  413;  21  Am.  Rep.  105.  See,  also,  Donner  v. 
Redenbaugh,  61  Iowa,  269;  16  N".  W.  Rep.  127,  and  post,  ch.  18,  §  199,  and 
notes. 

19  3  Sedg.  Dam.  (8th  ed.)  §  1007.  Pinkston  v.  Huie,  9  Ala.  252;  Gibbs 
v.  Jemison,  12  Ala.  820.  Dyer  v.  Dorsey,  1  Gill  &  J.  (Md.)  440.  In  Beard 
v.  Delaney,  35  Iowa,  16,  the  vendor  having  received  $400  for  the  land, 
executed  a  bond  in  the  penalty  of  $400,  to  procure  title  from  a  third  person, 
and  it  was  held  that  the  purchaser  might  recover  that  sum  as  "  liquidated 
damages,"  though  he  had  received  a  conveyance  of  the  land  and  had  not 
been  disturbed  in  the  possession.  In  Yokum  v.  McBride,  56  Iowa,  139,  the 
vendor  agreed  to  perfect  the  title  by  procuring  a  patent  to  the  purchaser 
from  the  State,  and  the  court  held  that  if  the  vendor  was  unable  to  procure 
the  patent  without  fault  on  his  part,  the  purchaser  could  recover  only 
nominal  damages. 

80 1  Chitty  Cont.  (9th  ed.)  289;  3  Sedg.  Dam.  182.  Williams  v.  Glenton, 
L.  R.,  1  Ch.  App.  200;  Simons  v.  Patchett,  7  El.  &  Bl.  568;  Goodwin  v. 
Francis,  L.  R.,  5  C.  P.  295;  Robinson  v.  Hardman,  1  Exch.  850;  Engel  v. 
Fitch,  4  Q.  B.  659.  Kirkpatrick  v.  Downing,  58  Mo.  32;  17  Am.  Rep.  678. 

81  Taylor  v.  Barnes,  69  N.  Y.  430.  Where  the  premises  sold  were  subject  to 
a  species  of  vendor's  lien  i*  favor  of  the  State,  against  which  lien  the  vendor 


1_'44  .MAHKKTABLK    TITLE    TO    KK.U.    KSTATE. 

incumbrances,  or  in  perfecting  the  title,  he  can  recover  as  damages 
only  the  amount  expended  for  those  purposes.82  If  he  expends  in 
perfecting  the  title  a  sum  greater  than  the  purchase  money,  it 
seems  that  he  cannot  recover  the  excess  unless  the  case  be  one 
in  which  he  would  be  entitled  to  damages  for  the  loss  of  his 
bargain.81 

§  100.  LIQUIDATED  DAMAGES.  The  parties  may  always  agree 
upon  an  amount  to  be  paid  as  liquidated  damages  in  case  the  ven- 
dor fails  to  make  title  at  the  specified  time,  and  the  purchaser  will 
be  entitled  to  recover  that  amount  as  damages,  though  it  be  equiva- 
lent to  damages  for  the  present  value  of  the  land.84  But  the  amount 
agreed  upon  must  be  reasonable;  otherwise  it  will  be  regarded  as  a 
jM-nalty.  M  in  which  case,  it  is  presumed,  the  actual  value  of  the 

agreed  to  protect  the  purchaser,  the  court,  after  observing  that  the  rule 
limiting  the  measure  of  damages  to  the  purchase  money  paid,  with  interest, 
docs  not  apply  where  the  vendor  has  sold  lands  to  which  he  has  not  a  per- 
fect title,  but  which  he  undertakes  to  complete  and  perfect,  and  neglects  so 
to  d<>.  continued:  "In  this  case  there  is  an  exj>rc>-ed  agreement  for 
indemnity,  and  a  lecovery  which  does  not  give  the  vendee  the  benefit  of  his 
lmrgaiii,  and  the  value  of  his  purchase  does  not  indemnify  him  against  loss. 
The  true  rule  of  damages  as  a  measure  of  indemnity  in  such  case  is  the 
value  of  the  land  at  the  time  of  the  eviction  or  other  breach  of  the  contract, 
with  intercut  from  that  time.  The  plaintiff  lost  the  benefit  of  her  purchase 
by  the  omission  of  the  defendants  to  perform  their  agreement  by  paying 
for  the  lands  to  perfect  her  title.  The  loss  was  occasioned  by  the  act  of  the 
defendants,  against  which  they  covenanted  to  indemnify  the  plaintiff,  not 
men-lv  l>y  restoring  the  consideration  of  the  purchase,  but  by  paying  her  the 
equivalent  of  the  lands  to  which  she  was  entitled.  This  alone  would 
adequately  indemnify  her  against  loss." 

If  the  vendor  contracts  to  convey  free  of  all  incumbrances,  and  the  prop- 
erty is  destroyed  by  fire  before  he  is  able  to  remove  an  incumbrance,  the 
low  must  fall  on  him.  Kppstein  v.  Kuhn,  225  111.  115,  80  N.  E.  80.  See 
also,  Sut ton  v.  Davis,  143  X.  C.  474,  55  S.  E.  844. 

"2  Sutherland  Dam.  22S.  The  same  rule  prevails  in  an  action  for  breach 
of  the  covenant  of  warranty  or  against  incumbrances.  Post,  $8  129,  164. 

"2  Sutherland  Dam.  228.  With  the  exception  of  Cox  v.  Henry,  32  Pa. 
M.  1«,  all  the  case-  cited  l.y  this  author  to  the  proposition  in  the  text  were 
action*  for  1. reach  of  covenant-  for  title.  S,  ,•  |,,,~t,  g  131.  In  Chartier  v. 
M.ir-liall.  ."ii;  \.  H.  478,  where  the  vendor  refused  to  convey,  damages  were 
allowed  the  purchaser  for  an  excess  over  the  consideration  money  paid  by 
him  to  get  in  the  outstanding  title. 

Ml  Sedg.  Dam.   (8th  ed.)    g  405;  Lyons  v.  Woman's  League,  124  La.  222: 

1H. 

"Gates  v.  Parmly,  93  Win.  294:  66  N.  W.  253.     Runnell*  v.  Pruitt.   (Tex. 
W.   1017. 


MEASUKE  OF  DAMAGES;  INABILITY  TO  CONVEY  GOOD  TITLE.       245 

land  at  the  time  of  the  breach  of  the  contract  would  be  allowed  as 
damages.86  The  penalty  of  a  title  bond  is  usually  double  the  pur- 
chase money,  and  when  that  is  the  case,  is,  of  course,  as  it  purports 
to  be,  merely  a  penalty  and  not  liquidated,  damages.87  But  if  a 
purchaser  bring  covenant  on  a  title  bond,  and  the  case  be  one  in 
which  he  is  entitled  to  damages  for  loss  of  his  bargain,  it  has  been 
held  that  his  recovery  cannot  be  limited  by  the  penalty  of  the 
bond.88  And,  generally,  it  may  be  said,  that  the  whole  agreement 
may  be  looked  to  for  the  purpose  of  determining  whether  the  sum 
mentioned  in  a  title  bond  as  a  "  penalty  "  is  in  fact  a  penalty  or 
liquidated  damages.89  If  the  agreement  contain  various  stipula- 
tions of  different  degrees  of  importance,  besides  the  stipulation  to 
make  a  good  title,  and  the  damages  for  the  breach  of  some  of  the 

84 1  Sedg.  Dam.  (8th  ed.)  §  405.  where  the  rule  was  thus  stated: 
"  Wherever  the  damages  were  evidently  the  subject  of  calculation  and  adjust- 
ment between  the  parties,  and  a  certain  sum  was  agreed  upon  and  intended 
as  compensation,  and  is  in  fact  reasonable  in  amount,  it  will  be  allowed  by 
the  court  as  liquidated  damages.  Holmes  v.  Holmes,  12  Barb.  (N.  Y.)  137, 
where  it  was  said  by  the  court:  "When  the  damages  to  be  recovered  are 
liquidated  in  advance  by  the  terms  of  the  contract  it  is  a  mistake  to  assume 
that  the  party  claiming  is  alone  benefited.  Such  a  stipulation  may  be  as 
beneficial  to  the  party  who  pays  as  to  him  who  receives.  Both  enter  into 
the  contract  with  a  full  knowledge  of  all  their  rights  and  liabilities.  The 
amount  to  be  paid  is  not  to  be  diminished,  neither  is  it  to  be  enlarged.  Each 
may  estimate  the  consequences  of  a  breach  with  certainty  and  precision,  and 
deport  himself  accordingly."  In  Leggett  v.  Mut.  Ins.  Co.,  53  N".  Y.  394,  it 
was  held  that  an  agreement  to  pay  $5,000  liquidated  damages  in  case  of  the 
vendor's  refusal  or  failure  to  execute  and  deliver  a  proper  deed  applied  only 
to  the  agreement  to  execute  the  deed,  and  not  to  the  warranty  of  title 
implied  from  the  agreement  to  sell. 

"Burr  v.  Todd,  41  Pa.  St.  206.  Stewart  v.  Xoble,  1  Green  (Iowa),  28. 
See,  also,  Dyer  v.  Dorsey,  1  Gill  &  J.  (MkU  440.  But  the  penalty  of  a  title 
bond  is  not  necessarily  double  the  purchase  price,  and  it  is  not  evidence 
that  one-half  of  it  was  the  value  of  the  land  or  the  amount  of  the  purchase 
price,  and  it  is  error  for  the  court  so  to  instruct  the  jury.  Duncan  v. 
Tanner,  2  J.  J.  Marsh.  (Ky.)  399. 

88  Noyes  v.  Phillips,  60  N.  Y.  408.  Sweem  v.  Steele,  5  Iowa,  352.  But  see 
Spruill  v.  Davenport,  5  Ired.  L.  (N.  C. )  145.  If  the  action  be  debt  instead 
of  covenant  the  plaintiff's  r3covery  would  of  course  be  limited  by  the  penalty. 
In  Beard  v.  Delany,  35  Iowa,  16,  where  the  vendor  entered  into  a  bond  in 
the  "  penalty  "  of  $500  to  perfect  the  title,  that  sum  having  been  paid  to  him 
as  consideration  money,  it  was  held  that  the  $500  should  be  treated  as 
liquidated  damages,  and  the  purchaser  was  permitted  to  recover  that  amount. 

""Genner  v.  Hammond,  36  Wis.  277. 


246  MA1CKETA1JLE    TITLE    TO    KEAL    ESTATE. 

stipulations  would  be  certain,  and  of  others  uncertain,  and  a  large 
sum  is  expressed  in  the  agreement  as  payable  on  the  breach  of  any 
of  the  stipulations,  such  sum  will  be  regarded  as  a  penalty,  and  not 
as  liquidated  damages.90  In  a  case  in  Illinois  the  following  rule 
was  announced :  "  Where  the  parties  to  the  agreement  have 
expressly  declared  the  sum  to  be  intended  as  a  forfeiture  or  jx'ii- 
alty,  and  no  other  intent  is  to  be  collected  from  the  instrument,  it 
will  generally  be  so  treated,  and  the  recovery  will  be  limited  to  the 
damages  sustained  by  the  breach  of  the  covenant  it  was  to  secure. 
On  the  other  hand,  it  will  be  inferred  that  the  parties  intended 
the  sum  named  as  liquidated  damages,  where  the  damages  arising 
from  the  breach  are  uncertain  and  are  not  capable  of  being  ascer- 
tained by  any  satisfactory  and  known  rule."  Accordingly,  a 
written  contract  in  that  case  for  the  exchange  of  farms  having 
provided  that  in  case  either  party  failed  to  convey  at  the  appointed 
time  such  party  would  "  forfeit  and  pay  as  damages  "  to  the  other 
the  sum  of  $1,500,  it  was  held,  in  view  of  the  difficulty  of  proving 
the  actual  damages  sustained  by  the  plaintiff,  that  the  sum  named 
should  be  treated  as  liquidated  damages.91 

•"Carpenter  v.  Lockhart,  1   Ind.  434.     Gates  v.  Parmly,  93  Wis.  294,  86 
N.  W.  253. 

"  Gobble  v.  Linden,  76  111.  157.    See,  also,  2  Greenl.  Ev.  §§  258,  259. 


CHAPTER  XI. 

ACTION  AGAINST  VENDOR  FOR  DECEIT. 

GENERAL  PRINCIPLES.     §    101. 

WHAT  CONSTITUTES  FRAUD  WITH  RESPECT  TO  THE  TITLE. 

Concealment  of  defeats.     §    102. 
Wilful  or  careless  assertions.     §    103. 
Defects  which  appear  of  record.     §   104. 
Existence  of  fraudulent  intent.     §   105. 
Statements  of  opinion.     §    106. 
Pleading.     §   107. 

§  101.  GENERAL  PRINCIPLES.  Fraud  on  the  part  of  a  vendor 
of  real  estate  in  misrepresenting  or  concealing  the  state  of  his  title 
materially  enlarges  the  scope  of  the  purchaser's  remedies  in  sev- 
eral particulars,  the  principal  of  which  may  be  thus  classified: 
(1)  It  gives  the  purchaser  the  right  to  hold  the  vendor  liable  for 
defects  of  title,  though  the  contract  has  been  executed  by  the 
acceptance  of  a  conveyance  without  covenants  for  title;1  (2)  it 
entitles  the  purchaser  to  the  rescission  of  an  executed  contract  of 
sale; 2  (3)  it  entitles  the  purchaser,  on  rescission  of  the  contract, 
whether  executed  or  executory,  to  retain  possession  of  the  premises 
until  he  is  reimbursed  for  any  loss,  injury  or  expense  he  may  have 
incurred;3  (4)  it  entitles  the  purchaser  to  recover,  in  an  action 
for  deceit,  damages  for  the  loss  of  his  bargain,  over  and  above  the 
consideration  money,  and  any  sum  expended  by  him  for  improve- 
ments;4 (5)  it  gives  the  purchaser  the  right  to  recover  back  or 
detain  the  purchase  money,  whether  the  contract  has  been  executed 
by  a  conveyance,  whether  that  conveyance  was  with  or  without 
covenants  for  title, 5  and,  if  with  covenants,  whether  they  have 

1 1  Sugd.  Vend.  7,  247. 

2  2  Sugd.  Vend.  553. 

3  Young  v.  Harris,  2  Ala.  108;  Garner  v.  Leverett,  32  Ala.  413.    Kiefer  v. 
Rogers,  19  Minn.  38. 

'  Rawle  Covt.  ch.  9 ;  1  Sugd.  Vend.  358. 

5  2  Sugd.  Vend.  553;  Rawle  Covt.  §  322.  Diggs  v.  Kirby,  40  Ark.  420. 
McDonald  v.  Beall,  55  Ga.  288.  Haight  v.  Hayt,  1?9  N.  Y.  474.  Edwards  v. 
McLeay,  Coop.  308. 

[247] 


248  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

or  have  not  been  broken; '  (6)  it  absolves  the  purchaser  from  his 
obligation  to  tender  the  purchase  money  and  demand  a  convey- 
ance as  a  condition  precedent  to  an  action  against  the  vendor ; 7 
and  (7)  it  deprives  the  vendor  of  the  right  to  cure  defects  or 
remove  incnmbrances,  and  to  require  the  purchaser  to  take  the 
perfected  title.*  Several  of  the  remedies  here  mentioned  are  con- 
current; the  right  to  rescind  the  contract  in  equity;  the  right 
to  recover  back  or  to  detain  the  purchase  money  at  law,  and  the 
right  to  recover  damages  at  law  for  the  deceit.  He  may,  of  course, 
elect  between  these  several  remedies ; 9  but  inasmuch  as  he  may 
recover  damages  in  excess  of  the  consideration  money  in  an  action 
for  the  deceit,  that  remedy  is  generally  to  be  preferred  to  assumpsit 
for  money  had  and- received  to  the  plaintiff's  use,  in  which  he  would 
only  recover  the  purchase  money  and  interest,  and  nothing  for  the 
loss  of  his  bargain.  The  purchaser  cannot  be  compelled  to  take  one 
of  those  remedies  instead  of  another;  he  can  never  be  required  to 
accept  damages  in  lieu  of  rescission;10  nor  can  the  vendor  insist 
upon  rescinding  the  contract  and  returning  the  consideration 
where  the  purchaser  is  entitled  to  damages.  The  purchaser 
may,  of  course,  waive  his  right  of  damages,  and  sue  to  recover 
so  much  of  the  purchase  money  as  he  may  have  paid.11  If  the 
purchaser  desires  to  recover  damages  at  law  against  the  vendor 
guilty  of  fraud  in  respect  to  the  title,  'his  appropriate  remedy 
at  common  law  is  an  action  on  the  case  in  the  nature  of  a  writ  of 

•  1  Sugd.  Vend.  247,  where  it  is  aaid  that  if  a  purchaser  is  entitled  to 
relief  in  a  case  of  fraud  in  respect  to  the  title,  "  it  is  not  important  that  ho 
ha  •*  not  been  evicted ;  if  the  rightful  owner  is  not  barred  by  adverse  posses- 
sion, the  purchaser  cannot  be  compelled  to  remain  during  the  time  to  run 
in  a  Mate  of  uncertainty  whether,  on  any  day  during  that  period,  he  may 
have  his  title  impeached.  A  court  of  equity  is  bound  to  relieve  a  purchaser 
from  that  state  of  hazard  into  which  tho  misrepresentation  of  the  seller  has 
brought  him."  Whitlock  v.  Donlingcr,  59  III.  96. 

'Thomax  v.  Coultafl,  76  111.  493. 

•Green  v.  Chandler,  25  Tex.  148.  Hut  see  Whitney  v.  Crouch,  172  N.  Y. 
Hupp.  729. 

•Kruinm  v.  Beach,  96  N.  Y.  398. 

"1  Supl.  Vend.  (8th  cd.)  3fT«.  ( orbett  v.  McGregor  (Tex.  Civ.  App.) 
84  S.  \V.  278. 

v.  Chapin,  44  Pa.  St.  9. 


ACTION  AGAINST  VENDOR  FOR  DECEIT.  249 

deceit.12  He  cannot,  if  his  action  be  for  breach  of  covenant, 
increase  his  damages  by  showing  fraud  on  the  part  of  the  vendor.13 
It  is  true  that  the  action  of  covenant  sounds  in  damages,  but,  as 
has  been  already  seen,  the  purchaser's  recovery  is  limited  to  the 
consideration  money  and  costs  of  eviction.14  If  the  contract  be 
under  seal,  the  purchaser  may  elect  between  the  action  of  covenant 
and  the  action  on  the  case  for  deceit ;  if  he  chooses  the  latter  rem- 
edy, the  objection  cannot  be  made  that  the  contract  is  under  seal, 
and  that  covenant  should  have  been  brought.15  The  purchaser  does 
not  waive  his  right  to  recover  damages,  in  a  case  of  fraud,  by  pay- 
ing the  purchase  money.16  He  waives  his  right  to  rescind  the  con- 
tract by  remaining  in  possession  and  paying  the  purchase  money 
after  discovering  the  fraud.17  But  the  action  to  recover  damages 
is  an  affirmance  of  the  contract,  and  it  is  always  his  privilege 
to  complete  the  contract  without  impairing  his  right  to  reimbursb- 
ment  for  any  loss  which  he  may  have  incurred  through  the  ven- 
dor's fraud.18  If  the  purchaser  should  choose  to  keep  the  premises 
and  bring  an  action  for  damages  grounded  on  the  fraud,  his  pos- 
session- of  the  premises,  if  it  .be  probable  that  he  would  never  be 
disturbed  therein,  would,  it  is  apprehended,  be  considered  in  miti- 
gation of  damages. 

The  purchaser  is  not  entitled  to  relief  in  a  case  of  fraud-  which 
cannot  operate  him  an  injury,19  as  where  the  vendor  had  previously 

1J2-B1.  Com.  166;  1  Sugrt.  Vend.  236;  Kerr  on  Fraud  (Bump's  ed.),  p.  324. 
Carvill  v.  Jacks,  43  Ark.  439. 

13  Rawle  Covt,  §  159. 

"Ante,  •§  90,  and  post,  §  164. 

13Parham  v.  Randolph,  4  How.  (Miss.)  435;  35  Am.  Dec.  403;  English  v. 
Benedict,  25  Misfe.  167.  Munroe  v.  Pritchett,  16  Ala.  785;  50  Am.  Dec.  203; 
Foster  v.  Kennedy,  38  Ala.  359;  81  Am.  Dec.  56.  Clark  v.  Baird,  5  Seld. 
(X.  Y.)  183.  See,  also,  Rawle  Covts.  (5th  ed.)  §  167;  Kerr  on  Fraud 
(Am.  ed.),  326. 

16  White  v.   Sutherland,'  64  111.   181. 

"Strong  v.  Strong,  102  X.  Y.  69;  5  N.  E.  Rep.  799;  Schiffer  v.  Dietz,  83 
X.  Y.  300. 

18  2  Kent  Com.  480.  Owens  v.  Rector,  44  Mo.  389.  Smyth  v.  Merc.  Tr. 
Co.,  18  Fed.  Rep.  486. 

"Crittenden  v.  Craig,  2  Bibb  (Ky.),  474.  Whitney  v.  Crouch,  172  X.  Y. 
Supp.  729.  Wuesthoff  v.  Seymour,  22  X.  J.  Eq.  66,  where  it  was  held  that 
falsely  representing  an  alley  to  be  a  private  right  of  way,  instead  of  a  public 
alley,  is  not  fraud  entitling  a  purchaser  to  relief,  the  loss  or  injury  result- 

32 


250  MAKKETABLK    TITLE    TO    KI.Al.    ESTATE. 

conveyed  the  premises  to  a  stranger,  and  the  conveyance  failed  to 
take  effect  as  against  the  purchaser,  for  want  of  timely  acknowledg- 
ment and  registry.20  Xor  where  the  vendor  fraudulently  acquired 
the  title,  if  it  appear  that  the  person  defrauded  made  no  objection, 
after  reasonable  opportunity  and  full  knowledge  of  the  facts."  Nor 
where  an  incuinbraiice,  not  disclosed  by  the  vendor,  is  released  by 
the  incumbrancer,  and  the  purchaser  suffers  no  actual  injury.22 
Xor  where  an  incumbrance,  fraudulently,  concealed,  has  been 
removed  by  the  vendor  before  decree  in  a  suit  by  the  purchaser  for 
rescission.0  Nor,  generally,  in  any  case  in  which  the  purchaser 
is  not  damnified  by  the  alleged  fraud.24 

The  contract  may,  of  course,  be  rescinded  if  the  fraud,  in  respect 
to  the  title,  was  perpetrated  by  an  agent.  An  agent  or  attorney 
of  the  vendor  conducting  the  negotiations  on  his  behalf,  having 
knowledge  of  an  incumbrance  on  the  estate,  must  disclose  it.25 
But  it  seems  that  the  principal  will  not  be  liable  to  an  action  for 
damages  in  a  case  of  deceit  by  the  agent,  unless  the  deceit  was 
impliedly  authorized  by  the  principal.26  An  action  in  such  case 

ing  from  the  alley  being  in  either  case  substantially  the  same.  The  same 
principle  was  declared  in  Morrison  v.  Ixxfe,  30  Cal.  38,  but  was  disapproved 
in  Kelly  v.  R.  Co.,  74  Cal.  557. 

"Meeks  v.  Garner,  93  Ala,  17;  8  So.  Rep.  378.  And  where  land  has  been 
c-onveyed  and  the  deed  recorded,  a  subsequent  contract  by  the  grantor  to 
Hell  the  same  land  to  a  stranger,  does  not  place  a  cloud  on  the  title  of  the 
grantee,  nor  furnish  a  ground  of  objection  to  the  title  by  the  vendee.  Good- 
kind  v.  Bartlett,  153  111.  410;  38  N.  E.  Rep.  1045. 

•Comstock  v.  Ames,  1  Abb.  A  pp.  Dec.   (N.  Y.)  411. 

"Campbell  v.  Whittingham,  5  J.  J.  Marsh.  (Ky.)  40;  20  Am.  Dec.  241. 
Whitney  v.  Crouch.  172  N.  Y.  Supp.  729. 

"Davidson  v.  Moss,  5  How.  (Miss.)  L.  073.  But  see  post,  as  to  right  of 
vendor  to  remove  objections  where  he  has  been  guilty  of  fraud,  s  314. 

"Halls  v.  Thompson,  1  Sm.  &  M.  (Miss.)  489.  Board  of  Commrs.  v. 
Younger,  20  Cal.  172.  Walsh  v.  Hall,  66  N.  C.  233. 

"1  Sugil.  Vend.  (8th  Am.  ed.)  9.  Evans  v.  Bickndl,  6  Vcs.  174,  193,  trmblc; 
BurroweM  v.  Lodce,  10  Ves.  470;  Bowles  v.  St. -wart.  1  Sch.  &  Lef.  227.  Gill 
v.  Corbin,  4  J.  J.  Marsh.  (Ky.)  392.  Concord  Bank  v.  Gregg,  14  NT.  H.  331. 

"K«-rr  on  Fraud  (Am.  ed.),  326;  citing  New  Brunswick  R.  Co.  v.  Conybeare. 
'.'  II.  I*  C»s.  1;  Henderson  v.  Lacon,  L.  R.,  5  Eq.  262.  In  Law  v.  Grant,  37 
U  i-.  548,  it  was  held  that  if  an  agent  effected  a  sale  of  the  priiiripal**  land 
1-v  fiilnc  representation*  or  other  fraud,  without  the  authority  or  knowledge 
of  tin-  prim-ipul,  th«  latter  is  chargeable  with  such  fraud  in  the  same  manner 
a*  if  he  had  known  or  uuthorir.ed  it.  The  rcprr«entnt inn*  in  this  ca-^e  were 
made  with  respect  to  the  value  of  the  land,  and  not  with  respect  to  the  title, 
but  there  would  seem  to  be  no  difference  in  principle  between  the  two.  The 


ACTION  AGAINST  VENDOR  FOR  DECEIT.          251 

may  be  maintained  against  the  agent  himself;  it  is  no  defense 
that  he  was  acting  for  another.27  Where  a  husiband  sold  the  lands 
of  his  wife,  and  fraudulently  misrepresented  the  title,  and  the 
wife  received  the  benefit  of  the  sale,  it  was  held  that  she  was  bound 
by  his  acts  and  liable  in  damages,  though  the  contract  was  made 
in  the  name  of  the  husband,  and  without  her  knowledge.28  An 
agent  fraudulently  misrepresenting  the  title  may,  of  course,  be 
held  personally  liable  for  damages.29  A  trustee  who  makes  false 
representations  as  to  incumbrances  on  the  property  sold  by  him, 
will  be  personally  liable  to  the  purchaser.30  In  England,  and  in 
some  of  the  American  States,  a  vendor  or  his  agent,  fraudulently 
misrepresenting  the  title,  or  fraudulently  concealing  defects  of 
title,  for  the  purpose  of  making  a  sale,  is,  by  statute,  made  liable  to 
fine  and  imprisonment,  in  addition  to  a  civil  action  for  damages.31 
The  grounds  upon  which  the  purchaser  is  entitled  to  damages  at 
law,  or  to  relief  in  equity,  where  fraud  has  been  practiced  upon 
him  respecting  the  title,  are  in  most  cases  the  same  ;32  consequently, 

purchaser  set  up  the  agent's  fraud,  by  way  of  counterclaim  for  damages, 
as  a  defense  to  a  foreclosure  proceeding.  It  may  be  doubted  whether  the 
principal  could  be  held  liable  for  his  agent's  fraud  in  an  action  for  damages, 
unles-s  the  fraud  was  authorized  by  him.  New  Brunswick  R.  Co.  v.  Cony- 
bear  e,  9  H.  L.  Cas.  1. 

"Riley  v.  Bell,  120  Iowa,  618;  95  N.  W.  170. 

^Krumm  v.  Beach,  96  N".  Y.  398.  But  where  the  vendor  did.  not  disclose 
the  fact  that  the  title  was  in  his  wife,  and  the  wife's  deed  was  tendered  to 
the  purchaser,  it  was  held  that  there  was  no  fraud,  and  that  the  purchaser 
must  take  the  title.  Crump  v.  Schneider,  246  Fed.  225,  158  C.  C.  A.  385. 

29  Norris  v.  Kipp,  (Iowa)   38  N.  W.  Rep.  152. 

30 1  Sugd.  Vend.    (8th  Am.  ed.)    12. 

31 24  Viet.  chap.  96,  §  28.  Pub.  Stat.  Mass.  1882,  p.  1147.  Gen.  Stat. 
Minn.  1881,  p.  539. 

32  Sugd.  Vend.  243,  where  it  is  said  that,  in  case  of  fraud  by  the  vendor  in 
the  sale  of  real  estate,  "  a  foundation  is  laid  for  maintaining  an  action  to 
recover  damages  for  the  deceit  so  practiced ;  and  in  a  court  of  equity,  a 
foundation  is  laid  for  setting  aside  the  contract  which  was  founded  upon  a 
fraudulent  basis."  While  the  proposition  stated  in  the  text  is  true  in  a 
general  sense,  it  will  perhaps  admit  of  some  qualification.  A  court  of  equity 
might  freely  decree  the  rescission  of  a  contract  upon  evidence  of  fraud  which 
a  court  of  law  would  deem  insufficient  to  warrant  a  judgment  against  the 
vendor  for  damages.  And,  on  the  other  hand,  in  the  case  of  an  executed  con- 
tract, the  court  might  be  influenced  in  refusing  a  rescission  by  the  considera- 
tion that  the  purchaser  still  had  his  remedy  on  the  covenants  contained  in 
his  deed. 


252  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

it  has  not  been  deemed  necessary  in  the  following  pages  to  dis- 
tinguish the  cases  in  which  damages  were  sought  or  rescission  of 
the  contract  demanded  by  the  purchaser,  or  to  consider  the  subject 
separately  with  respect  to  the  particular  form  of  relief  or  redress 
to  which  he  may  be  entitled. 

Where  the  sale  is  by  parol  and  the  terms  of  the  contract  between 
the  parties  are  afterwards  reduced  to  writing,  fraudulent  repre- 
sentations of  the  vendor  at  the  sale  will  not  be  merged  in  the 
written  contract.88 

§  1 02.  WHAT  CONSTITUTES  FRAUD  WITH  RESPECT  TO  THE 
TITLE.  Concealment  of  defects.  The  following  propositions  may 
be  stated  as  embodying  the  principal  features  of  the  decisions  as 
to  what  acts  or  conduct  of  the  vendor  amount  to  fraud  in  respect 
to  the  title  which  he  undertakes  to  convey: 

(1)  The  vendor  is  guilty  of  fraud  if  he  conceals  a  fact  material 
to  the  validity  of  the  title,  lying  peculiarly  within  his  own  knowl- 
edge, and  which  it  is  his  duty  to  disclose.84  It  is  as  much  a  fraud 

"Shanks  v.  Whitney,  66  Vt.  405. 

"Story  Eq.  §  207;  Sugd.  Vend.  271;  Sugd.  Law  of  Prop.,  etc.,  653.  Early 
v.  Garrett,  9  Barn.  &  Cres.  928.  Laidlaw  v.  Organ,  2  Wh.  (U.  S.)  195. 
Saltonstall  v.  Gordon,  33  Ala.  151.  State  v.  Holloway,  3  Blackf.  (Ind.)  47. 
F.mmons  v.  Moore,  85  111.  304;  Strong  v.  Lord,  107  111.  26.  CrutchfieM  v. 
Uanilly,  16  Ga.  434.  Young  v.  Bumpass,  1  Freem.  Ch.  (Miss.)  241.  Rose- 
man  v.  Conovan,  43  Cal.  110.  Brown  v.  Montgomery,  20  N.  Y.  287;  75  Am. 
Dec.  404.  Bank  v.  Baxter.  31  Vt.  101.  Carr  v.  Callaghan,  3  Litt.  (Ky.)  365. 
:<7.">.  Corln'tt  v.  McGregor,  (Tex.  Civ.  App.)  84.  This  is  the  auppn^io  rrri 
of  the  t«-xt  writers,  and  is  substantially  the  rule  established  by  the  leading 
cane  of  Kdward<  v.  Md.eay.  Coop.  308,  Sir  WM.  GRANT  delivering  the  opinion. 
To  this  Lord  Ki.nox  added  on  appeal,  that  if  one  party  make  a  representation 
which  lie  knows  to  be  false,  but  the  falsehood  of  which  the  other  party  has 
no  means  of  discovering,  he  is  guilty  of  fraud.  Sugd.  Vend.  246.  In  the 
case  of  Brown  v.  Manning.  3  Minn.  35;  74  Am.  Dec.  736,  it  was  held  that  tin- 
mere  execution  and  delivery  of  a  deed,  with  general  warranty  convex  in-.' 
land  which  the  grantor  had  previously  conveyed  to  a  third  pcr-on.  does  not 
of  itself  niiioiint  to  fraud,  and  that  there  must  be  some  false  representation 
of  fact,  with  intent  to  deceive,  accompanying  the  act,  in  order  to  entitle  the 
grantee  to  relief.  It  is  exceedingly  difficult  to  reconcile  thi-  decision  with 
th»-  general  rule  that  the  vendor  is  guilty  of  fraud  if  he  suppresses  any  fact 
material  to  the  validity  of  the  title.  The  court  cite*  no  authority,  and  gives 
no  reason  for  the  deci-ion  other  than  that  "there  may  have  been,  and 
frequently  dors  «\i-i.  a  condition  of  thing*  which  would  make  it  perfect  1\ 
safe  for  the  purchaser  to  take  a  deed  of  land  under  *uch  circum-tance*.  and 


ACTION  AGAINST  VENDOR  FOR  DECEIT.  253 

to  suppress  the  truth  as  it  is  to  utter  a  falsehood.35  The  question, 
what  facts  the  seller  must  disclose,  is  capable  of  much  refinement. 
Obviously  it  cannot  be  determined  by  any  precise  rule.  In  every 
case  that  arises  the  question  is  one  of  fact  to  be  solved  by  all  the 
circumstances  which  surround  the  transaction,36  among  which, 
perhaps,  the  most  important  are  the  relations  of  trust  and  con- 
fidence which  the  parties  bear  to  each  other,  and  the  inequalities 
in  their  respective  business  capacities,  or  opportunities  for 
information  respecting  the  title.  Thus,  it  has  been  held,  that  if 
the  vendor  is  a  resident  of  the  locality  where  the  sale  is  made, 
and  is  aware  that  certain  existing  facts  render  the  title  invalid 
under  the  laws  there  in  force,  he  is  bound  to  disclose  those  facts 
to  the  purchaser  if  he  is  a  stranger,  though  they  might  be  dis- 
covered by  an  examination  of  the  records.37  On  the  other  hand, 
it  has  been  held  that  the  vendor  is  under  no  obligation  to  disclose 

rely  upon  his  covenants  for  his  'security  against  the  outstanding  title,  and 
such  a  transaction  could  take  place  in  perfect  good  faith."  In  Maxfield  v. 
Bierbauer,  8  Minn.  413,  this  case  was  cited  approvingly,  but  it  appeared  that 
the  purchaser  was  aware  of  the  prior  conveyance.  A  contrary  decision  upon 
similar  facts  will  be  found  in  Banks  v.  Ammon,  27  Pa.  St.  172.  Of  course, 
the  mere  conveyance  with  covenants  of  warranty,  in  the  absence  of  conceal- 
ment or  misrepresentation  of  the  state  of  the  title,  is  not  of  itself  a  sufficient 
fraudulent  representation  to  vitiate  the  transaction.  Merriman  v.  Norman, 
9  Heisk.  (Tenn.)  270,  criticising  Gwinther  v.  Gerding,  3  Head  (Tenn.),  198. 
If  the  vendor  suppresses  the  fact  that  his  wife  is  living,  so  as  to  induce  the 
purchaser  to  accept  a  conveyance  without  a  release  of  her  contingent  right 
of  dower,  he  is  guilty  of  fraud.  Sniffer  v.  Dietz,  83  N.  Y.  300;  S.  C.,  53 
How.  Pr.  (N.  Y.)  372.  So  also,  where  he  alters  the  abstract  of  title  so  as 
to  conceal  an  incumbrance  on  the  land.  Knowlton  v.  Amy,  47  Mich.  204. 
The  fact  that  the  seller  fails  to  deny,  in  conversation  with  the  purchaser, 
the  charge  that  he  has  concealed  an  incumbrance  on  the  property,  is  not 
sufficient  evidence  of  fraud  on  his  part.  Halls  v.  Thompson,  1  Sm.  &  M. 
(Miss.)  443.  The  encroachment  of  an  adjoining  lot  upon  that  sold,  known  to 
the  vendor  but  not  mentioned  in  the  particulars  of  sale,  is  a  suppression 
of  a  material  fact  entitling  t]ie  purchaser  to  relief.  King  v.  Knapp,  59  N. 
Y.  462.  It  is  fraud  in  the  vendor  to  execute  a  title  bond  knowing  that  he 
has  no  title,  legal  or  equitable.  Mullins  v.  Jones,  1  Head  (Tenn.)  517.  It 
is  fraud  in  an  executor  to  sell  land,  belonging  to  the  estate,  if  the  will  confers 
no  authority  for  that  purpose.  Woods  v.  North,  6  Humph.  (Tenn.)  308; 
44  Am.  Dec.  312. 

"Lockridge  v.  Foster,  4  Scam.     (111.)    569. 

3«Bean  v.  Herrick,  12  Me.  262;  28  Am.  Dec.  176. 

37  Babcock  v.  Case,  61  Pa.  St.  427;  100  Am.  Dec.  654.  Moreland  v.  Atchison, 
19  Tex.  303,  311. 


254  MARKETABLE    TITLE    TO    REAL    ESTATE. 

the  existence  of  unopened  streets  and  such  like  easements  affect- 
ing the  premises  sold,  when  the  facts  respecting  them  appear 
from  the  plats  and  records  in  the  public  offices,  and  he  has  reason 
to  believe  that  the  purchaser  has  equal  knowledge  with  himself 
upon  the  subject,38  nor  to  disclose  the  fact  that  his  title  is  equit- 
able only,  the  legal  title  being  outstanding  in  another,  if  he  be 
in  a  situation  to  compel  a  conveyance  of  the  legal  title ;  or  if  the 
circumstances  of  the  case  be  such  that  he  is  entitled  to  time  in 
which  to  perfect  the  title.39  As  a  general  rule  it  may  be  said  that 
the  vendor  is  bound  to  disclose  all  facts  material  to  the  title  of 
which  he  is  informed.40  A  title  which  upon  the  face  of  the  ven- 
dors title  deeds,  or  the  public  records,  appears  complete  and  per- 
fect, may  in  fact  be  utterly  worthless,  as  where  the  estate  is  held 
pur  aiUre  vie,  and,  at  the  time  of  the  contract  between  the  vendor 
and  purchaser,  the  cestui  que  vie  is  dead,  or  in  any  case  in  which 
the  vendor's  title  is  liable  to  be  defeated  upon  the  happening  of 
a  particular  event.  In  all  such  cases  the  vendor  is  guilty  of  fraud 
if  he  conceals  from  the  purchaser  a  fact  which  defeats  or  lcs.-cn> 
the  value  of  his  title.41  It  has  been  said  that  if  the  purchaser 
accepts  the  estate  subject  to  all  faults,  and  the  vendor  knows  of 
a  latent  defect  which  the  purchaser  could  not  discover,  there  is 
a  question  as  to  whether  or  not  he  is  bound  to  disclose  the  defect. 
This  observation  was  made  in  respect  to  faults  in  the  quality  of 
the  estate,  but  it  would  apply  as  well,  it  would  seem,  to  defects 
in  the  title.41  It  seems  scarcely  fair  to  apply  to  a  case  of  alleged 
fraud  with  respect  to  the  title  the  rule  which  prevails  in  a  case 
of  fraudulent  representations  as  to  the  quality  of  the  estate, 
namely,  that  the  vendor  is  not  bound  to  disclose  defects  which  lie 
open  to  the  observation  of  the  purchaser.  It  is  true  that  all 
defects  of  title  which  would  appear  upon  a  thorough  examination 
of  the  title  may  be  said  to  be,  in  a  certain  sense,  open  to  the  ol  »«.<•!•- 
vntion  of  the  purchaser.  But  it  is  well  known  that  an  examination 

•Wanner  v.  Perry,  47  Hun   (N.  Y.)   518. 

•Provident  L.  &.  Tr.  Co.  v.  Mclntosh,   (Kans.)  75  Pac.  498. 

-  Rvans  v.  Mamli.  38  App.  D.  C.  341. 

•Mipl.  Vend.   (8th  Am.  ed.)  9.     Edwards  v.  MoLeay,  Coop.  312. 

*  1  Sugd.  Vend.  (8th  Am.  ed.)  2,  9.  Jones  v.  Keen,  2,  Moo.  &  R.  348.   Ward 
v.  Winuin.  17  Wend.  (N.  Y.)   193,  a  case  in  which  the  land  tnippoeed  to  have 

gold  did  not  exist. 


ACTION  AGAINST  VENDOR  FOR  DECEIT.  255 

of  the  title  is  a  serious  matter,  involving  much  labor  and  delay, 
and  is  frequently  dispensed  with  upon  the  assurances  of  the 
vendor  that  his  title  is  perfect.  Whether  the  estate  consists  of 
fertile  lands  or  sterile  lands,  uplands  or  meadows,  productive  or 
non-productive  mines,  can  be  determined  by  any  man  of  ordinary 
capacity;  but  whether  the  record  shows  a.  clear  title,  is  a  fact 
that  few  purchasers  can  ascertain  without  professional  assistance 
and  much  expense.  Whether  the  vendor  is  bound  to  disclose  that 
his  title  has  been  questioned  or  doubted  does  not  appear.  But 
it  has  been  held  that  if  the  validity  of  the  title  depends  upon  a 
particular  fact,  and  the  vendor  knows  that  such  fact  exists,  no 
duty  devolves  upon  him  to  disclose  to  the  purchaser  that  the 
existence  of  such  fact  had  ever  been  questioned.  Thus,  where  a 
son  placed  money  in  the  hands  of  his  father  with  which  to  buy 
lands  for  him  (the  son),  and  the  father  died  before  a  conveyance 
was  executed,  and  the  vendor  required  indemnity  against  any 
future  claim  by  the  heirs  of  the  father  before  he  would  convey 
the  land  to  the  son,  it  was  held  that  the  son  was  not  obliged  to 
disclose  to  his  vendee  the  fact  that  such  indemnity  had  been 
required  and  given.43  This  case,  however,  scarcely  goes  the  length 
of  deciding  that  the  vendor  is  under  no  obligation  to  disclose 
facts  which  render  the  title  merely  doubtful,  and  not  absolutely 
bad. 

§  103.  Willful  or  careless  assertions,  The  vendor  is  guilty  of 
fraud  if  he  makes  an  assertion  of  fact  in  regard  to  the  title  which 
he  knows  to  be  false,  or  which  he  has  no  reason  to  believe  to  be 
true,  and  which  is  in  fact  untrue.44  It  is  a  sufficient  proof  of 
fraud,  as  a  general  rule,  to  show  that  the  vendor's  representations 
are  false,  and  that  he  had  knowledge  of  facts,  contrary  to  his 

43  Farrell  v.  Lloyd,  69  Pa.  St.  239,  248.     The  vendor,  assuming  to  tell  the 
defects  in  his  title,  is  guilty  of  fraud  in  suppressing  a  material  defect.  Cont'l 
Coal  &  Co.  v.  Kilpatrick,  158  N.  Y.  Supp.   1056,  172  App.  Div.  541. 

44  Hinkl*  v.  Margerum,  50  Ind.  242 ;  Strong  v.  Downing,  34  Ind.  300 ;  Wiley 
V.  Howard,   15   Ind.    169;   Warren  v.   Carey,   5  Ind.   319;    Fitch  v.  Polke,   7 
Blackf.  (Ind.)  564.    Herman  v.  Hall,  140  Mo.  270;  41  S.  W.  733.    Prestwood 
v.  Carlton,  162  Ala.  327;  50  S.  254.     If  the  vendor  positively  affirm,  ae  of 
his  own  knowledge,  that  the  title  is  good,  without  knowing  whether  it  is  in 
fact  good,   he  will   be   deemed  guilty   of   fraud   if   the  title   is  in   fact  bad. 
Barnes  v.  Union  Pac.  R.  Co.,  54  Fed.  Rep.  87;  12  U.  S.  App.  1. 


1*5(5  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

representations/5  There  are  cases  which  hold  that  the  representa- 
tions of  the  vendor  as  to  title  may  not  be  fraudulent  in  law, 
though  exceptionable  in  point  of  morals,  as  where  he  makes  untrue 
statements  in  regard  to  a  fact  concerning  which  the  purchaser 
has  the  same  opportunity  and  means  of  information  as  he.46  It- 
must  be  admitted  that  these  decisions  stand  upon  very  debatable 
ground,  and  that  the  courts  should  be  slow  to  condone  fraud  on 
the  part  of  the  vendor  under  any  circumstances,  especially  where 
it  consists  of  a  positive  averment,  and  not  a  mere  suppression 
of  the  truth.  A  mere  covenant  that  the  grantor  is  seized  in  fee 
is  not  of  itself  a  fraudulent  representation  if  he  has  no  title.47 

§  104.  Defects  which  appear  of  record.  The  vendor  is  not 
necessarily  guilty  of  fraud  in  failing  to  call  the  attention  of  the 
purchaser  to  a  defect  of  title  or  an  incumbranee  which  appears 
of  record,  or  which  appears  on  the  face  of  the  instruments  evidenc- 
ing the  vendor's  title.48  This  is  analogous  to  the  rule  that  the 

*1  Sugd.  Vend.  (8th  Am.  ed.)  5.  Burrowes  v.  Locke,  10  Ves.  470;  Lake 
v.  Brut  tun.  8  De  G.,  M.  4  G.  449.  Buchanan  v.  Burnett,  102  Tex.  492;  119 
S.  W.  1141. 

*Yeates  v.  Pryor,  11  Ark.  60,  the  court,  by  WALKER,  J.,  saying:  "It  is  not 
every  representation  of  the  vendor  in  regard  to  the  property  sold  which  will 
amount  to  fraud,  he  it  ever  so  exceptionable  in  point  of  morals.  The  mis- 
representation, in  order  to  affect  the  validity  of  the  contract,  must  relate  to 
some  matter  of  inducement  to  the  making  of  the  contract  in  which,  from  the 
relative  position  of  the  parties  and  their  means  of  information,  the  one  mu-t 
necessarily  be  presumed  to  contract  upon  the  faith  and  trust  which  he  reposes 
in  the  representations  of  the  other  on  account  of  his  superior  information  and 
knowledge  in  regard  to  the  subject  of  the  contract;  for  if  the  means  of 
information  are  alike  accessible  to  both,  so  that  with  ordinary  prudence  or 
vigilance  the  parties  might  respectively  rely  upon  their  own  judgment,  they 
must  have  been  presumed  to  have  done  so;  or,  if  the\  h;i\r  imt  -<>  informed 
themselves,  must  abide  the  consequences  of  their  own  inattention  and  careless- 
liens."  In  this  case  fraud  on  the  part  of  the  vendor  was  alleged,  both  in 
respect  to  the  value  of  the  property  and  state  of  tin-  title. 

'Deck.-,  y.  Schulze,  (Wash.)  39  Pac.  Rep.  201.     Ante,  $  102,  n. 

•Turner  v.  Harvey,  Jac.  178.  Ward  v.  Packard,  18  Cal.  391.  Richardson 
v.  Boright,  9  Vt.  368.  The  canes  which  hold  that  the  vendor  is  not  guilty  of 
fraud  in  failing  to  disclose  an  incumhrancc  apparent  of  record  jn<»  ee<l  largely 
II|MIII  the  hypothecs  that  the  purchaser  has  himself  examined  the  record,  is 
aware  of  the  incumhrance,  and  tacitly  purchases  subject  thereto  and  that  he 
ha*  taken  the  incumbranee  into  consideration  in  determining  the  price  he 
will  pay  for  the  property.  Ward  v.  Packard,  supra,  citing  Story  Kq.  $  208. 
It  is  hardly  to  be  supposed  that  a  business  man,  knowing  of  an  incumbrance, 


ACTION  AGAINST  VENDOR  FOR  DECEIT. 

vendor  need  not  call  the  attention  of  the  purchaser  to  defects  in  the 
quality  of  the  estate  which  are  fully  open  to  his  observation.  But 
the  vendor  will  be  guilty  of  fraud  if  he  induce  the  purchaser  to 
forego  an  examination  of  the  title  in  order  that  his  attention  may 
not  be  brought  to  such  defects ; 49  or  if  he  occupies  such  a  con- 
fidential relation  to  the  purchaser  that  by  reason  of  such  relation 
the  latter  is  induced  to  forego  an  examination  of  the  title.50  In 

would  purchase  without  mentioning  the  fact  for  the  purpose  of  obtaining  the 
property  at  the  lowest  figure.  The  other  principal  ground  of  such  decisions, 
namely,  that  the  purchaser  is  guilty  of  laches  in  failing  to  examine  the 
title  and  must  suffer  the  consequences  would  seem  better  founded  in  reason, 
though  it  has1  no't  passed  without  attack.  Cullum  v.  Branch  Bank,  4  Ala.  21; 
37  Am.  Dec.  325;  Burwell  v.  Jackson,  5  Seld.  (N.  Y.)  545.  Keifer  y.  Rogers, 
19  Minn.  32 ;  Pryse  v.  McGuire,  81  Ky.  60S.  "  It  would  be  the  grossest  in- 
justice to  infer  fraud  upon  the  mere  silence  of  a  vendor  as  to  the  existence  of 
an  incumbrance  where  the  abstract  of  title  is  sufficient  to  put  the  purchaser  on 
inquiry."  Steele  v.  Kinkle,  3  Ala.  352.  The  case  of  Griffith  v.  Kempshall, 
Clarke  Ch.  (N.  Y.)  571,  has  gone  as  far,  perhaps,  as  any  other  in  support  of 
the  proposition  that  in  a  case  of  fraud  by  the  vendor  the  purchaser  is  charge- 
able with  laches  in  failing  to  examine  the  records,  where  such  examination 
would  have  disclosed  the  fraud.  The  sale  was  at  auction,  the  vendor  declaring 
with  knowledge  to  the  contrary  that  there  were  no  incumbrances  on  the 
property.  A  most  important  element  of  this  decision,  however,  was  that 
after  time  given  for  examining  the  title  the  purchaser  had  accepted  a  con- 
veyance with  general  warranty,  and  that  the  vendor's  fraud  had  been  merged 
in  the  conveyance.  It  is  not  easy  to  reconcile  this  decision  with  the  rule  that 
the  contract  will  be  vitiated  if  the  vendor  make  definite  statements  for  the 
purpose  of  preventing  inquiries  by  the  purchaser  which  would  disclose  the 
fraud.  In  Tallman  v.  Green,  3  Sandf.  (N.  Y.)  437,  it  was  held  that  false 
representations  as  to  the  title  are  no  ground  for  rescission  when  the  record 
shows  the  true  state  of  the  title,  since  the  facts  falsely  represented  must 
be  such  as  the  grantee  could  not  know  to  be  untrue.  It  does  not  appear  that 
the  vendor  in  this  case  knew  that  his  representations  were  false.  The  pur- 
chaser was  left  to  his  remedy  at  law  on  the  vendor's  covenants.  In  Andrus 
V.  St.  Louis,  130  U.  S.  643,  it  was  held  that  a  purchaser  was  guilty  of  laches 
in  failing  to  inspect  the  premises,  by  which  he  would  have  discovered  an 
adverse  claimant  in  possession. 

48  2  Warvelle  Vend.  844.  Richardson  v.  Boright,  9  Vt.  368.  Corbett  v. 
McGregor,  (Tex.  Civ.  App.)  84  S.  W.  278.  If  the  purchaser  refrains  from 
examining  the  title  by  reason  of  the  vendor's  representation  that  the  title  is 
good,  he  will  be  relieved  if  the  title  is  bad.  Bailey  v.  Smock,  61  Mo.  213.  But 
if  he  is  not  influenced  by  the  vendor  in  failing  to  examine  the  title,  he  will 
not  be.  relieved  on  the  ground  of  fraud.  Patten  v.  Stewart,  24  Ind.  332,  342, 
semble. 

•"Babcock  v.  Case,  61  Pa.  St.  430;  100  Am.  Dec.  454.  Hunt  v.  Moore,  2  Pa. 
St.  107,  where  the  vendor  was  an  executor  and  man  of  affairs,  and  the  vendee 
33 


258  MAKKKTA1JLK    TITLE    TO    KKAL    ESTATE. 

either  case  the  same  principle  is  applied  as  that  upon  which  the 
vendor  is  held  guilty  of  fraud  in  actively  concealing  latent  defects 
in  the  quality  of  the  estate.  In  every  sale  of  lands  there  is  an 
implied  contract  that  the  vendor  has  an  indefeasible  title,  unless 
the  contrary  is  expressed;51  hence,  in  every  case  in  which  the 
purchaser  enters  into  the  contract  without  making  an  examina- 
tion or  requiring  an  abstract  of  the  title,  it  would  seem  fair  to 
assume  that  he  did  so  relying  upon  the  obligation  of  the  vendor  to 
disclose  any  defect  in  his  title.  Where  the  vendor  knows  there  is 
a  defect  in  the  title,  and  knows  also  that  the  purchaser  intends  to 
dispense  with  an  abstract  or  examination  of  the  title,  it  is  no  more 
than  fair  to  give  to  the  silence  of  the  vendor  under  such  cimi in- 
stances the  effect  of  an  express  representation  that  the  title  is 
unimpeachable.  Of  course  a  misrepresentation  as  to  a  fact  affect- 

a  devisee  of  the  vendor's  testator,  and  a  woman  of  weak  intellect  much  under 
the  executor's  influence.  Rimer  v.  Dugan,  39  Miss.  477;  77  Am.  Dec.  687. 
In  Babcock  v.  Case,  61  Pa.  St.  427;  100  Am.  Dec.  454,  it  appeared  that  the 
vendor  held  a  tax  deed,  and  represented  to  the  purchaser  that  he  had 
examined  the  title  and  found  it  good.  The  purchaser,  saying  that  he  would 
take  the  vendor's  word  for  it,  bought  the  land  without  examining  the  title. 
It  did  not  affirmatively  appear  that,  the  vendor  was  aware  of  the  facts  vitiat- 
ing the  title,  but  the  court  held  that  there  was  a  relation  of  trust  and  con- 
fidence between  the  parties,  and  that,  having  undertaken  to  state  the  facts 
truly,  his  ignorance  of  them  would  not  redeem  a  falsehood  in  regard  to  them, 
in  any  material  respect,  from  being  a  fraud  which  would  avoid  the  contract. 
If  the  vendor  prevents  the  vendee  from  examining  the  records  by  assurances 
that  the  title  is  perfect  and  the  property  free  from  inciiinhrances,  a  ease  of 
ial  confidence  is  established  and  the  vendee  is  not  chargeable  with  neglect 
in  failing  to  examine  the  title.  Bailey  v.  Smock,  61  Mo.  217.  That  a  vendor 
is  not  bound  to  inform  the  purchaser  of  the  existence  of  a  judgment  lien  or 
other  inciimbrance  on  the  premises  which  may  be  easily  discovered  by  an 
examination  of  the  public  records,  is  doubtless  true  if  the  parties  are  dealing 
at  arm's  length,  but  it  i»  believed  that  a  court  of  equity  would  lay  hold  on 
slight  circumstances  to  establish  a  relation  of  trust  and  confidence  lid  went 
the  buyer  and  seller,  and  to  charge  the  latter  with  an  abuse  of  that  confidence. 
"Burwell  v.  Jackson,  5  Seld.  (N.  Y.)  535.  In  Crawford  v.  Redder.  f>  Lea 
(Tenn.i,  547,  where  the  vendor  failed  to  inform  the  purchaser  of  a  -nit  ;•> 
enforce  a  prior  vendor's  lien  upon  the  land,  it  was  said  that  the  mere  fact 
of  a  want  of  title  known  to  the  vendor  and  not  communicated  to  the  vendee, 
in  a  fraud  upon  him,  for  which  he  may  resist  the  payment  of  the  pun-lia-o 
money.  See,  also,  Prout  v.  Roberts,  32  Ala.  427.  Crutchfield  v.  Danilly,  16 
Oa.  432. 


ACTION  AGAINST  VENDOR  FOR  DECEIT.          259 

ing  the  title  not  apparent  of  record,  such  as  the  fact  of  inheritance 
or  the  like,  will  fix  the  vendor  with  fraud.52 

There  is  undoubtedly  a  conflict  of  authority  as  to  the  duty  of 
the  vendor  to  disclose  defects  of  title  which  the  purchaser  might 
discover  hy  an  examination  of  the  records.  There  are  cases  which 
hold  that  the  vendor  is  liable,  if,  knowing  of  a  defect  or  incum- 
brance,  he  fails  to  disclose  it,53  others,  that  he  is  liable  if  he  assert 
that  the  title  is  good,  when  he  knows  that  the  records  show  it  to 
he  defective ;  M  and  lastly,  cases  which  hold  that  the  purchaser  has 

"Hammers  v.  Hanrick,  69  Tex.  412;  7  S.  W.  Rep.  345. 

58Cullum  v.  Branch  Bank,  4  Ala.  21;  37  Am.  Dec.  725.     Burwell  v.  Jackson, 

5  Seld.    (N.  Y. )    535.     Here  there   was  no  representation  whatever  by  the 
vendor  as  to  the  sufficiency  of  his  title,  unless   the  agreement  to  make  "  a 
good    and    sufficient    conveyance "    could    be    considered    such.      In    Prout   v. 
Roberts,  32  Ala.  427,  the  rule  was  thus  broadly  stated  by  STONE,  J. :     "A 
vendor   who  conceals  from  his   vendee   a   known   and   material  defect  in   or 
incumbrance  on  his  title,  and  thereby  induces  him  to  purchase,  is  guilty  of 
a  fraud  for  which  the  vendee  may  claim  a  rescission  of  the  contract,"  citing 
Cullum  v.  Br.  Bank,  supra.     Harris1  v.  Carter,  3  Stew.   (Ala.)   233;   Greenlee 
v.  Gaines,  13  Ala.  198;   48  Am.  Dec.  49;   Bonham  v.  Walton,  24  Ala.  513; 
Foster  v.  Gressett,  29  Ala.  393;   Lanier  v.  Hill,  24  Ala.  554;   McLemore  v. 
Mabson,  20  Ala.   137.     To  the  same  effect  see  Johnson  v.  Pryor,  5  Hayw. 
(Tenn.)    243;   Crawford  v.  Keebler,  5  Lea    (Tenn.),  547;   N"icol  v.  Nicol,  4 
Baxt.    (Tenn.)    145;  Napier  v.  Elam,  6  Yerg.    (Tenn.)    108.     Norris  v.  Hay, 
87  Pac.  380;  149  Cal.  695.    In  Cullum  v.  Branch  Bank,  supra,  the  court  said: 
"It  cannot  be  denied  that  the    (purchaser)    was  in  error  in  not  making  an 
examination  of  the  register,  and  also  in  not  ascertaining  from  the  previous 
vendor  whether  he  pretended  to  any  lien.     But  this  does  not  exculpate  the 
vendor.     *     *     *     By  offering  to  sell  the  estate,  the  vendor  virtually  repre- 
sents  it  as  not   incumbered  by  himself,  or   if  incumbered  that  he  will   free 
it  before  the  sale  is  executed ;   and  if  he  wishes  to  discharge  himself  from 
the  consequences   of  this   implied   representation,   it  lies   with  him  to   show 
that  the  purchaser  was  informed,   or  otherwise  knew  of  the  incumbrance." 
Citing  Harding  v.  Xelthorpe,  Xelson,  118.     Cater  v.  Pembroke,  2  Bro.  C.  C. 
281.     In  Kennedy  v.  Johnson,  2  Bibb   (Ky.),   12;   4  Am.  Dec.  666,  a  case  in 
which  the  vendor  failed  to  disclose  the  priority  of  his  grant  to  a  purchaser 
who  believed  he  was  acquiring  the  elder  legal  title,  the  contract  was  rescinded 
at  the  suit  of  the  purchaser,  though  the  land  records  showed  the  defect. 

51  The  rule  that  the  purchaser  is  chargeable  with  laches  in  failing  to 
examine  the  title  does  not  apply  where  the  vendor,  knowing  the  title  to  be 
defective,  represents  that  it  is  good.  It  does  not  lie  in  the  mouth  of  the 
vendor  to  say  that  his  falsehoods  respecting  the  title  might  have  been  dis- 
covered by  the  purchaser  if  he  had  used  due  diligence  and  caution  in  examin- 
ing the  public  records.  Pryse  v.  McGuire,  81  Ky.  608;  Young  v.  Hopkins, 

6  Mon.    (Ky.)    23;   Campbell  v.  Whittingham,  5  J.  J.  Marsh.    (Ky.)    96;  20 


260  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

no  right  to  rely  on  the  vendor's  representation  that  the  title  is 
good,  in  any  case,  hut  should  satisfy  himself  by  an  examination 
of  the  records.55  Both  upon  principle  and  authority  it  would 
seem  that  the  second  class  of  cases  establishes  the  true  rule.  It 
is  inconceivable  that  the  vendor,  knowing  his  title  to  be  bad, 
should  declare  it  to  be  good  for  any  purpose  other  than  to  induce 
the  purchaser  to  accept  it  without  examination.  There  can  l>e  no 
doubt  that  in  morals  the  vendor  is  guilty  of  fraud.  And  when  it 
is  sought  in  law  to  visit  uj>on  him  the  consequences  of  his  fraud, 
the  vendor  should  not  IK?  allowed  to  answer,  that  if  due  diligence 
had  been  exercised,  his  fraud  would  have  been  discovered  and 

Am.  Dec.  241.  Kiefer  v.  Ropers.  19  Minn.  32.  Topp  v.  White,  12  Heisk. 
(Tenn.)  165;  Xapier  v.  Klam,  6  Yerg.  (Tenn.)  108:  Ingrara  v.  Morgan,  4 
Humph.  (Tenn.)  60;  40  Am.  Dec.  626.  Riley  v.  Bell,  120  Iowa,  618;  95 
N'.  W.  170;  Muller  v.  Palmer,  144  Cal.  305;  77  Pac.  954.  Buchanan  v. 
Burnett,  52  Tex.  Civ.  App.  68,  114  S.  W.  406;  Clarke  v.  Thorpe,  117  Minn. 
202,  135  N.  W.  387;  Kevil  v.  Wilford,  31  Ky.  L.  Rep'r.  1000;  104  S.  W.  348. 
The  vendor  is  estopped  from  asserting  that  the  purchaser  might  have  ascer- 
tained the  truth  l»y  examining  the  puhlic  records.  Wilson  v.  Higher,  62 
Fed.  Rep.  723.  (Contra,  Williams  v.  Thomas,  7  Kulp.  (Pa.  Com.  PI.)  371.) 
"Griffith  v.  Kempshall,  Clarke  Ch.  (X,  Y.)  671.  See  notice  of  this  case 
p.  257.  It  is  believed  that,  in  most  of  the  instances  in  which  the  purchaser 
has  been  denied  relief  in  cases  of  fraud  on  the  ground  that  due  diligence  in 
examining  the  records  would  have  shown  the  true  state  of  the  title,  there 
was  no  attempt  on  the  part  of  the  vendor  to  fraudulently  conceal  the  facts. 
To  State,  with  knowledge  to  the  contrary,  that  the  record  showed  no  defects 
would,  of  course,  he  such  an  attempt.  Pry-se  v.  McOuire,  81  Ky.  60S.  In 
K«>rr  v.  Kitchen,  7  Pa.  St.  486,  the  head  note  states  that  "  fraudulent  con- 
cealment of  defects  cannot  lie  imputed  when  they  appear  from  deeds  on 
record."  The  case  does  not  support  the  head  note.  There  was  no  evidence 
that  any  concealment  of  the  state  of  the  title  was  attempted.  Tin-  parties 
acU-d  under  u  mistake  as  to  the  legal  effect  of  an  instrument  affecting  the  title. 
In  Wagner  v.  Perry.  47  Hun  (N.  Y.).  516,  it  was  held  that  the  purchaser  is 
not  guilty  of  fraud  in  failing  to  state  facts  affecting  the  title  disclosed  hy  the 
records,  HO  long  as  he  makes  no  effort  to  conceal  those  facts.  The  rule  stated 
in  Sugden  on  Vendors,  246,  that  if  the  false  statement  could  not  lie  discovered 
from  the  abstract,  the  purchaser  will  he  relieved,  can  scarcely  be  considered 
authority  for  denying  relief  to  a  purchaser  who  might  have  discovered  the 
vendor's  fraud  (not  mistake)  by  examining  the  title,  there  being  obviously 
a  wide  difference  between  a  case  in  which  the  vendor  furnishes  an  obstract 
which  shows  a  defect  in  his  title,  and  one  in  which  he  induces  the  purchaser 
to  forego  an  examination  of  the  title  by  assuring  him  that  is  is  clear  and 
unincumbered. 


ACTION  AGAINST  VENDOR  FOB  DECEIT.          261 

avoided.56  If  the  rights  of  a  stranger  should  be  impaired  by  such 
want  of  diligence,  the  purchaser  might  be  precluded  in  his  behalf, 
but  as  between  vendor  and  vendee,  the  doctrine  of  notice  from 
the  record  can  have  no  application  in  a  case  of  positive  fraud  on 
the  part  of  the  former  with  respect  to  the  title.57 

If  the  vendor  make  a  false  statement  as  to  any  specific  fact 
affecting  the  title,  for  example,  if  he  knowingly  and  falsely  states 

™ "  No  man  can  complain  that  another  has  relied  too  implicitly  on  the 
truth  of  what  he  himself  stated."  Kerr  on  Fraud,  80.  Brown  v.  Rice,  26 
Grat.  (Va.)  473.  "When  once  it  is  established  that  there  has  been  any 
fraudulent  misrepresentations  or  willful  concealment  by  which  a  person  has 
been  induced  to  enter  into  a  contract,  it  is  no  answer  to  his  claim  to  be 
relieved  from  it  to  tell  him  that  he  might  have  known  the  truth  by  proper 
inquiry.  He  has  a  right  to  retort  upon  his  objector.  '  You,  at  least,  who 
have  stated  what  is  untrue,  or  have  concealed  the  truth  for  the  purpose  of 
drawing  me  into  a  contract,  cannot  accuse  me  of  want  of  caution,  because 
I  relied  implicitly  on  your  fairness  and  honesty.' "  Language  of  Lord 
CIIELMSFOBD  cited  in  Hull  v.  Field,  76  Va.  607.  In  Upshaw  v.  Debow,  7 
Bush  (Ky. ),  447,  it  was  held  that  the  purchaser  was  not  bound  to  examine 
the  vendor's  title  papers,  and  might  rely  on  his  statements  as  to  the  title. 
And  in  Young  v.  Hopkins,  6  T.  &  B.  Mfon.  (Ky.)  23  it  was  declared  a  bad 
defense  to  say  that  the  purchaser  might  have  discovered  the  vendor's  false- 
hoods by  using  due  diligence.  Dupree  v.  Savage,  ( Tex.  Civ.  App. )  154  S.  VV. 
701.  In  Buchanan  v.  Burnett,  102  Tex.  492;  119  S.  W.  1141;  132  Am.  St. 
Rep.  900,  it  was  held,  in  a  case  of  false  representations  as  to  the  title  by 
the  vendor,  that  the  purchaser  was  entitled  to  rescind  though  he  had  in  his 
possession  an  abstract  showing  the  vendor's  title. 

"Parham  v.  Randolph,  4  How.  (Miss.)  451;  35  Am.  Dec.  403.  Hunt  v. 
Moore,  2  Pa.  St.  107.  Campbell  v.  Whittingham,  5  J.  J.  Marsh.  (Ky.)  96; 
20  Am.  Dec.  241.  But  see  Richardson  v.  Boright,  9  Vt.  368,  and  the  intima- 
tion of  BREWER,  J.,  in  Clagett  v.  Crall,  12)  Kans.  397.  The  reasons  for  this 
proposition  were  forcibly  stated  by  the  court  in  Burwell  v.  Jackson,  5  Seld. 
(N~.  Y.)  545,  as  follows:  "A  vendee  can  never  be  bound,  as  between  him  and 
the  vendor,  to  search  the  record,  for  defects  of  title.  The  protection  of 
vendors  from  the  consequences  of  agreeing  to  sell  that  which  they  do  not 
own  constitutes  no  part  of  the  object  of  the  recording  acts;  nor  is  it  any 
answer  to  a  warranty,  either  express  or  implied,  that  the  purchaser  might 
by  inquiry  have  ascertained  it  to  be  false.  The  reason  why  the  implied 
warranty  ceases  upon  the  consummation  of  the  contract  of  sale  by  the  execu- 
tion of  a  deed  is  not  that  the  vendee  is  presumed  to  have  investigated  the 
title  and  discovered  the  defects,  if  any  there  be,  but  that  it  is  reasonable  to 
require  the  vendee  in  taking  a  deed,  which  is  a  more  solemn  and  deliberate 
act  than  entering  into  a  preliminary  agreement  for  the  purchase,  to  protect 
himself  by  an  express  warranty."  A  purchaser  is  not  charged  with  notice  of 
facts  which  come  to  the  knowledge  of  his  attorney  in  the  examination,  nor 


262  MARKETABLE    TITLE    TO    K1.A1.    ESTATE. 

that  there  is  no  incumbrance  on  the  property,  the  mere  fact  that 
the  purchaser  might  have  found  the  incumbrance  by  examining 
the  public  records,  will  not  relieve  the  vendor  from  the  conse- 
quences of  his  fraud.58 

It  has  been  held  that  a  purchaser  is  not  guilty  of  laches  in  rely- 
ing upon  innocent  misrepresentations  of  the  vendor  as  to  the  title, 
and  that  as  a  general  rule,  evidence  which  is  sufficient  to  establish 
innocence  of  intentional  misrepresentation  on  the  part  of  the 
vendor  will  relieve  the  purchaser  of  the  imputation  of  laches  in 
failing  to  examine  the  title.59  The  English  rule  u]x>n  this  question 
has  been  thus  stated :  "  If  the  vendor  sells  with  knowledge  of  a 
defect  in  the  title  to  part  of  the  estate  material  to  the  enjoyment 
of  the  rest,  and  does  not  disclose  the  fact  to  the  purchaser,  and  it 
cannot  be  collected  from  the  aljstract,  the  purchaser  will  be  entitled 
to  have  the  contract  rescinded.60  The  same  rule  would  apply  in 
America,  it  is  apprehended,  in  all  cases  in  which  an  abstract  of 
the  title  is  furnished  by  the  vendor.61  He  would  not  be  deemed 
guilty  of  fraud  in  failing  to  call  the  attention  of  the  purchaser 
to  a  defect  of  title  plainly  disclosed  by  the  abstract.  But  in  the 
application  of  the  English  rule  to  American  cases  care  should  be 
taken  to  distinguish  between  the  abstract  of  title  and  the  public 
registry  of  conveyances,  incumbrances,  etc.,  generally  existing  in 
American  States.  It  would  seem  scarcely  just  to  the  purchaser 
to  give  to  the  public  registry  the  effect  of  an  abstract  of  title,  a 
document  usually  submitted  to  the  scrutiny  of  counsel,  and  so 
prepared  that  a  defect  thence  appearing  could  hardly  escape  the 
attention  of  the  purchaser  or  his  counsel,  except  in  a  case  of  gross 
negligence  or  incompetence.  It  is  convenient  to  note  here  the 
differences  between  the  English  and  Amrri<-;m  sources  of  infor- 
mation respecting  the  title.  In  England  there  is  no  general  rcgis- 

put  upon  inquiry  by  the  contentH  of  a  deed  in  his  chain  of  title,  an  between 
liiniM-lf  .mil  the  vendor.  The  doctrine  of  con>tnic-i  ivr  notice  from  thc»p 
-••iirci'*  i-  only  applied  for  the  protection  of  third  persons  against  the  claim* 
..f  .iihHequent  purchaser*.  Cliamplin  v.  Laytin,  6  Paige  Ch.  (X.  Y.)  189;  31 
Am.  Dec.  382. 

"  Illumenfeld  v.  Stine.  87  N.  Y.  Supp.  81;  42  Misc.  411. 

"Baptiste  v.  Peters,  51   Ala.   158. 

'I  Sugd.  Vend.   (8th  Am.  ed.)   375   (240). 

"Bryant  v.  Boothe,  30  Ala.  311;  08  Am.  Dec.  117. 


ACTIOJST    AGAINST    VENDOIi    FOR    DECEIT.  263 

try  of  title  deeds  such  as  exists  in  America;  consequently,  when 
a  title  is  examined  there,  the  vendor  must  produce  all  the  deeds 
or  other  documents  in  his  possession  relating  to  the  title,  and  sub- 
mit them  to  the  inspection  of  the  purchaser,  or  furnish  the  pur- 
chaser with  an  epitome  or  abstract  of  their  essential  parts.  This 
is  sometimes  done  in  America,  but  the  abstract,  owing  to  the 
expense  attending  its  preparation,  is  frequently  dispensed  with, 
especially  in  rural  communities,  and  the  purchaser  contents  him- 
self with  an  examination  of  the  registered  copies  of  the  vendor's 
title  deeds,  either  in  person  or  by  counsel.  The  facility  with 
which  this  may  be  done  has  led  to  the  disuse  of  abstracts  in  some 
sections,  and  given  rise  to  a  disposition  on  the  part  of  the  pur- 
chaser in  many  cases  to  rely  upon  lay  opinions  as  to  the  title,  and 
to  accept  without  question  the  vendor's  representation  that  his 
title  is  good. 

§  105.  Existence  of  fraudulent  intent.  Innocent  misrepre- 
sentations. Representations  by  the  vendor,  to  be  fraudulent,  must 
have  been,  first  untrue;  and,  secondly,  the  vendor  must  have 
known  them  to  be  untrue,  or  have  had  no  reason  to  believe  them 
true ;  and  the  contract  must  have  been  entered  into  in  consequence 
of  such  fraudulent  representations  in  order  to  entitle  the  pur- 
chaser to  relief.62  He  must  have  relied  upon  such  representa- 
tions,63 and  the  representations  themselves  must  have  been  in 

62  Taylor  v.  Leith,  26  Ohio  St.  428.  Owen  v.  Pomona  L.  &  W.  Co.,  131  Cal. 
530;  63  Pac.  850;  Hoffman  v.  Kirby,  136  Cal.  26;  68  Pac.  321.  Fraud  on  the 
part  of  the  vendor  with  respect  to  the  title  cannot  exist,  unless  there  be  an 
intent  to  deceive.  Fox  v.  Haughton,  85  N".  C.  168.  This  was  the  rule,  with 
the  exception  of  the  qualification  of  the  second  clause,  declared  by  Lord 
BROUGHAM  in  the  great  case  of  Small  v.  Atwood,  6  Cl.  &  Fin.  531.  It  is  true 
the  alleged  fraud  in  that  case  consisted  of  certain  representations  as  to  the 
value  or  productiveness  of  the  estate,  and  not  as  to  the  sufficiency  of  the  title, 
but  it  seems  that  the  rules  by  which  the  presence  of  fraud  in  the  transaction 
is  to  be  determined  are  the  same  in  either  case.  If  the  vendor  state  that  the 
title  is  free  from  incumbrances  "  to  the  best  of  his  knowledge  and  belief,"  and 
there  are  in  fact  incumbrances  on  the  property,  he  will  not  be  charged  with 
fraud  unless  he  knew  of  their  existence.  Barton  v.  Long,  (N.  J.)  14  Atl. 
Rep.  568. 

03  Bond  v.  Ramsey,  89  111.  29.  Luckie  v.  McGlasson,  22  Tex.  282.  It  is 
error  for  the  court  to  exclude  the  purchaser's  statement  that  he  relied  on  the 
vendor's  representations  as  to  the  title.  Continental  Coal  &  Co.  v.  Kilpatrick, 
158  N.  Y.  Supp.  1056;  172  App.  Div.  541. 


264  MARKET  ABLE    TITLE    TO    REAL    ESTATE. 

respect  to  some  material  thing  unknown  to  him.64  But  if  a  state- 
ment be  in  fact  false,  and  be  uttered  for  a  fraudulent  purpose, 
which  is  in  fact  accomplished,  it  has  the  whole  effect  of  a  fraud  in 
annulling  the  contract,  although  the  vendor  did  not  know  the 
statement  to  be  false,  but  believed  it  to  be  true.65 

While  the  vendor  may  in  some  cases  be  deemed  guilty  of  fraud 
in  making  statements  which  he  does  not  know  to  be  true,  the  mere 
fact  that  ho  does  not  know  them  to  be  true  is  not,  as  a  general 
rule,  sufficient  to  fix  him  with  fraud.  There  must  be  something 
to  show  that  the  statements  were  fraudulently  made,  in  order  to 
distinguish  them  from  mere  mistake.66  It  has  been  held,  however, 
that  a  false  representation  founded  on  a  mistake  resulting  from 
gross  negligence  is  a  fraud,*7  as  where  the  land  sold  had  been 
included  in  a  mortgage  of  other  lands  executed  by  the  vendor, 
but  of  which,  from  careless  reading,  he  was  ignorant.68  It  is  to 
be  observed  that  the  cases  which  decide  that  a  vendor  is  not  neces- 
sarily guilty  of  fraud  in  failing  to  disclose  apparent  defects  of 
title  or  in  making  representations  in  regard  to  the  title  not  true 
in  fact,  merely  relieve  the  vendor  from  the  imputation  of  fraud, 
but  do  not  deny  the  purchaser  relief  if  entitled  thereto  upon  other 
grounds.  A  false  representation  by  the  vendor,  however  inno- 
cently made,  if  injury  follows,  gives  the  purchaser  a  right  to 
compensation  °  or  rescission.70 

§  106.  Statement  of  opinion.  Mere  expression  of  opinion  as 
to  the  sufficiency  of  the  title,  when  the  means  of  information  are 
equally  accessible  to  both  parties,  and  when  no  confidential  rela- 

••  Holland  v.  Anderson,  38  Mo.  55. 

•Bethell  v.  Bethell,  92  Ind.  318;  Brooks  v.  Riding,  46  Ind.  15;  Krewuon  v. 
Cloud,  45  Ind.  273;  Booher  v.  Goldsborough,  44  Ind.  490;  Frenrel  v.  Miller, 
37  Ind.  I ;  10  Am.  Rep.  62. 

•*  Rjtwle  Covt.  (5th  ed.)  541  n.,  and  casea  cited,  few  of  which,  however,  in- 
volved any  question  of  fraudulent  representation*  of  the  vendor  an  to  his 
title.  See  ante,  |  103,  as  to  effect  of  utatementa  hy  the  vendor  which  he  did 
Dot  know  to  be  true. 

"Smith  v.  Richards,  13  Pet.  (U.  S.)   38. 

•Kiefcr  v.  Rogers,  19  Minn.  32. 

•1  Sugd.  Vend.  (14th  ed.)  28;  Bigelow  on  Fraud,  416.  Gunby  v.  Sluter, 
44  Md.  237.  Sbadtelford  v.  Hundly,  1  A.  K.  Marsh.  (Ky.)  495;  10  Am.  Dec. 
753.  Watnon  v.  Baker,  71  Tex.  73»;  9  S.  W.  Rep.  887. 

••Vaughn  v.  Smith,  34  Oreg.  54;  55  Pac.  99. 


AGAINST  VENDOR  FOB  DECEIT.          265 

tions  exist  between  them,  do  not  constitute  fraud  on  the  part  of 
the  vendor.71  A  purchaser  has  no  right  to  rely  on  the  statement  of 
the  vendor  that  his  title  is  good,  where  all  the  facts  are  laid 
before  him,  for  this  is  no  more  than  the  statement  of  an  opinion. 
To  constitute  fraud  the  vendor  must  falsely  state,  or  fraudulently 
conceal,  some  fact  material  to  the  title.72 

It  has  been  held  that  statements  of  what  is  the  law  bearing  upon 
the  sufficiency  of  the  title,  are  to  be  treated  as  statements  of 
opinion  only,  and  even  though  fraudulently  made,  afford  the  pur- 
chaser no  grounds  for  relief ;  all  persons  being  presumed  to  know 
the  law.73  It  is  easy  to  see,  however,  that  the  universal  application 
of  such  a  rule  would  in  many  cases  lead  to  gross  injustice.  If  the 
parties  stand  upon  equal  ground,  and  are  dealing  at  arm's  length, 
the  rule  might  be  salutary;  but  if  there  be  such  a  disparity  in 

"Hume  v.  Pocock,  1  L.  R.,  Ch.  App.  379.  Smith  v.  Richards,  13  Pet. 
(U.  S.)  26.  Maney  v.  Porter,  3  Humph.  (Tenn.)  309.  Glasscock  v.  Minor, 
11  Mo.  655.  Conwell  v.  Clifford,  45  Ind.  395.  Bond  v.  Ramsey,  89  111.  29. 
People  v.  Mitchell,  129  Cal.  580;  62  Pac.  118.  Melicharek  v.  Colkins,  (Cal. 
App.)  183  Pac.  457.  Where  the  purchaser  declared  that  he  would  not  buy 
a  tax  title,  and  the  vendor  answered  that  he  had  the  best  kind  of  title,  it 
was  held  that  if  the  vendor  made  such  declaration  knowing  that  he  had  only 
a  tax  title,  he  was  guilty  of  fraud.  Updike  v.  Abel,  60  Barb.  (X.  Y.)  15. 
In  a  case  of  conflicting  claims  to  property  in  which  one  claimant  employed 
counsel  to  investigate  his  title,  and  offered  as  a  compromise  to  sell  that 
title  to  the  other  claimant,  it  was  held  that  the  assertions  of  the  latter  (who 
purchased)  as  to  the  validity  of  his  title  could  not  amount  to  a  fraud  on  the 
vendor.  Saltonstall  v.  Gordon,  33  Ala.  149.  Statement  by  vendor  that  his 
title  was  good,  held  not  to  be  a  mere  expression  of  opinion  on  his  part. 
Buchanan  v.  Burnett,  102  Tex.  492;  119  S.  W.  1141;  1321  Am.  St.  Rep.  900. 

"Conwell  v.  Clifford,  45  Ind.  393.  Fellows  v.  Evans,  33  Oreg.  30;  53 
Pac.  491.  Morse  v.  Duryea,  174  Ky.  234;  192  S.  W.  477.  The  mere  expres- 
sion of  an  opinion  by  the  vendor  as  to  the  goodness  of  his  title,  in  the  course 
of  trade,  when  all  the  facts  in  relation  to  the  title  are  fully  and  fairly  dis- 
closed, and  when  the  vendee  agrees  to  take  the  title  at  his  own  risk  without 
recourse  on  the  vendor,  is  no  fraud  or  ground  of  relief  to  the  purchaser  if 
the  title  should  prove  bad.  The  statement  that  an  adverse  claim  against 
the  property  cannot  be  maintained,  is,  of  course,  a  statement  of  opinion  only. 
Jasper  v.  Hamilton,  3  Dana  (Ky.),  284.  But  to  state  that  there  are  no 
adverse  claims  against  the  property  would  obviously  be  a  most  important 
statement  of  fact,  and  if  made  with  knowledge  of  its  falsehood,  would,  it  is 
apprehended,  entitle  the  purchaser  to  relief. 

:3Fish  v.  Cleland,  33  111.  243,  where  it  was  said:  "A  representation  of 
what  the  law  will  or  will  not  permit  to  be  done  is  one  on  which  the  party  to 

34 


266  MAKKETAKLK    TITLE   TO    BEAL    ESTATE. 

their  respective  positions  as  to  give  the  vendor  an  undue  advan- 
tage; e.  g.,  if  the  vendor  were  a  conveyancer,  and  the  purchaser 
an  ignorant  man,  the  latter  would  seem  entitled  to  relief. 

If  the  validity  of  the  title  depends  upon  a  question  of  law,  of 
course  the  statement  of  the  vendor  as  to  the  goodness  of  the  title 
would  be  a  mere  matter  of  opinion  on  his  part.  But  a  statement 
that  there  are  no  incumbrances  on  the  property  would  be  a  state- 
ment of  fact,  and  if  falsely  made  would  entitle  the  purchaser  to 
relief.74  So,  also,  if  the  vendor  assert  that  the  title  is  good  when  he 
knows  of  a  paramount  title  outstanding  in  a  third  person.70  If  the 
vendor  states  material  fact  as  of  his  own  knowledge  and  not  as  a 
mere  matter  of  opinion,  but  of  which  he  has  no  knowledge  what- 
ever, he  is  guilty  of  fraud.76  It  seems,  however,  that  there  must 

whom  it  is  made  has  no  right  to  rely;  and  if  he  does  so  it  is  his  own  folly. 
and  he  cannot  ask  the  law  lo  relieve  him  from  the  consequences.  The  truth 
or  falsehood  of  such  a  representation  can  be  tested  by  ordinary  vigilance 
and  attention.  It  is  an  opinion  in  regard  to  the  law  and  is  always  under- 
stood as  such."  This  case  was  a  suit  by  the  vendor  to  rescind  the  contract 
on  account  of  the  purchaser's  fraud,  but  it  is  apprehended  that  the  principle 
declared  would  be  fully  as  applicable  to  a  case  of  representation  affecting 
the  title.  See,  also,  Upton  v.  Tribilcock,  91  U.  S.  50;  approving  Fish  v. 
Cleland,  supra,  and  citing  further  Star  v.  Bennett,  5  Hill  (N.  Y.),  303; 
Lewis  v.  Jones,  4  B.  &  C.  506;  Rashall  v.  Ford,  L.  R.,  2  Eq.  750,  to  the  gen- 
eral proposition  that  a  statement  of  what  the  law  is  by  any  person,  is  a 
statement  of  opinion  only. 

"Glasscock  v.  Minor,  71  Mo.  655.  Loucks  v.  Taylor,  23  Ind.  App.  245;  55 
X.  E.  238.  In  Jasper  v.  Hamilton,  3  Dana  (Ky.),  284,  the  court  said:  "  \\V 
cannot  admit  that  the  expression  of  an  opinion  by  the  vendor  as  to  the 
goodness  of  his  title  in  the  course  of  trade,  when  the  vendee  agrees  to  take  it 
at  his  own  risk  without  recourse  or  responsibility  on  the  vendor,  is  such 
fraud  as  to  justify  a  rescission  of  the  contract,  if  the  title  should  prove 
inferior  to  an  adverse  interfering  claim.  If  all  the  facts  in  relation  to  his 
title  are  fairly  and  fully  disclosed,  the  vendee  is  furnished  with  the  means 
to  form  his  own  opinion  or  to  obtain  the  opinion  of  others,  and  if  he  fails 
to  do  so  and  purchases  without  recourse,  it  is  his  own  folly  and  he  has  no 
ju*t  ground  to  complain.  Whether  a  title  is  paramount  and  -superior  to  an 
adverse  conflicting  claim  is  a  question  of  lav  often  of  the  most  abstruse  and 
critical  import,  and  which,  the  facts  being  fairly  developed,  is  placed  as 
much  within  the  competency  of  the  vendee  to  solve,  or  to  procure  others  to 
do  «o,  aa  within  that  of  the  vendor." 

nSpenc«  v.  Durein,  3  Ala.  251. 

"Kerr  on  Fraud  (Hump),  53,  and  cases  cited;  Rawle  Covt.  |  322.  Adams 
v.  Jarvh,  4  Bing.  68,  BEHT,  C.  J.,  saying:  "  He  who  affirms,  either  what  he 
does  not  know  to  be  true,  or  knows  to  be  false,  to  another's  prejudice  and  his 


ACTION  AGAINST  VENDOR  FOR  DECEIT.  267 

be  some  evidence  of  fraudulent  intent  on  the  part  of  the  vendor 
other  than  the  mere  want  of  knowledge  of  the  truth  of  his  asser- 
tions.77 

If  the  vendor  make  definite  statements  for  the  purpose  of  pre- 
venting the  purchaser  from  making  inquiries  which  would  have 
shown  his  representations  to  be  false,  he  is  guilty  of  fraud,  and  the 
contract  may  be  rescinded,  or  an  action  for  damages  maintained 
by  the  purchaser,78  as,  where  the  vendor  falsely  states  the  amount 
of  liens  on  his  property.79  This  rule,  carried  to  its  furthest  extent, 
must  neutralize  those  decisions  which  hold  that  the  purchaser  is 
not  entitled  to  relief  where  he  has  the  "means  of  knowing,"  or 
"  sufficient  means  of  knowing,"  the  falsity  of  the  vendor's  repre- 
sentations at  the  time  they  were  made,  since  it  is  inconceivable 
that  a  vendor  would  make  a  false  statement  respecting  the  title 
for  any  purpose  other  than  to  prevent  an  examination  of  the  title 
by  the  purchaser,  the  only  "means  of  knowing"  the  fraud  of  the 
vendor.80  There  can  be,  of  course,  no  fraud  in  an  innocent  mis- 
representation by  mistake,  though  the  vendor  may  be  deemed 
guilty  of  constructive  fraud  and  subjected  to  an  action  at  law  for 
damages  if  he  declare  that  to  be  true  of  which  in  fact  he  has  no 
knowledge.81  In  equity  the  contract  may  always  be  rescinded  if 
there  be  a  mutual  mistake  as  to  the  title.82 

own  gain,  is  both  in  morality  and  law  guilty  of  falsehood  and  must  answer 
in  damages."  See,  also,  Munroe  v.  Pritchett,  16  Ala.  787;  50  Am.  Dec.  203. 
Shackelford  v.  Hundley,  1  A.  K.  Marsh.  (Ky.)  500;  10  Am.  Dec.  753.  Davis 
V.  Heard,  44  Miss.  51;  Halls  v.  Thompson,  1  Sm.  &  M.  (Miss.)  485;  Rimer 
v.  Dugan,  39  Miss.  477;  77  Am.  Dec.  687. 

"Ante,  §  105;  Rawle  Covts.  (5th  ed.)  §  232;  Kerr  on  Fraud  19,  and  cases 
cited. 

78  Campbell  v.  Whittingham,  5  J.  J.  Marsh.  (Ky.)  96;  20  Am.  Dec.  241, 
where  the  purchaser  was  induced  to  omit  an  examination  of  the  title  by  the 
assertion  of  the  vendor  that  the  title  was  good.  See,  also,  Parham  v. 
Randolph,  4  How.  (Miss.)  451;  35  Am.  Dec.  403.  Burwell  v.  Jackson,  5 
Seld.  (N.  Y.)  545. 

"Thomas  v.  Coultas,  76  111.  423.  Kenny  v.  Hoffman,  31  Va.  442.  Brown 
V.  Herrick,  99  Pa.  St.  220. 

80  Ante,  §  104. 

81  Munroe  v.  Pritchett,   16  Ala.  787;    50  Am.  Dec.   203. 

82 1  Story  Eq.  §  142.  Hitchcock  v.  Giddings,  4  Price,  135.  Wood  v.  John- 
son,  3  Conn.  597.  Davis  v.  Heard,  44  Miss.  51.  Bradley  v.  Chase,  22  Me. 
511.  Armistead  v.  Hundley,  7  Grat.  (Va.)  64.  Sanford  v.  Justice,  9  Mo. 
865. 


268  MAKKETABLE    TITLE    TO    KKAI.    ESTATE. 

Certain  acts  and  conduct  of  the  vendor  other  than  misrepre- 
sentation or  non-disclosure  of  facts  respecting  the  title  may 
amount  to  fraud ;  e.  g.,  it  is  a  fraud  in  the  vendor  knowingly  to 
deliver  a  conveyance  without  covenants  for  title  when  the  contract 
provides  for  covenants ; w  or  to  threaten  to  resell  the  premises 
together  with  the  purchaser's  improvements  unless  the  purchaser 
would  accept  a  conveyance  with  special  warranty,  he  being 
entitled  to  general  covenants.84  The  right  of  action,  however,  in 
these  cases  does  not  necessarily  grow  out  of  an  inability  on  the 
part  of  the  vendor  to  convey  a  good  title. 

§  107.  PLEADING  AND  PROOF.  In  every  pleading  by  the  pur- 
chaser, the  gravamen  of  which  is  the  vendor's  fraud,  the  facts  con- 
stituting the  fraud  must  be  expressly  alleged.  A  general  allegation 
of  fraud  is  insufficient.85  The  purchaser  must  also  aver  that  he 
relied  on  and  was  deceived  by  the  vendor's  fraudulent  representa- 
tion.8* If  facts  showing  fraud  are  alleged  it  is  not  necessary  to 
allege  fraud  in  express  terms;  the  law  implies  the  fraudulent 
intent.87  Nor  in  an  action  on  the  case  for  fraud  and  deceit  is  it 
necessary  to  allege  a  scienter  on  the  part  of  the  vendor,  for  if  the 
vendee  be  injured  by  a  representation  which  is  not  >true  in  fact, 
his  right  of  action  is  complete,  whether  the  vendor  was  or  was 
not  aware  of  the  falsity  of  his  statement.  The  vendor  is  con- 
structively guilty  of  fraud  if  he  allege  a  thing  to  be  tme  of  which 
he  has  in  fact  no  knowledge.88  It  has  been  held  that  the  plaintiff 
must  allege  that  the  matters  in  respect  to  which  the  false  represen- 
tations were  made  by  the  defendant,  were  such  as  lay  peculiarly 
within  his  knowledge ;  otherwise  no  cause  of  action  would  appear 
in  consequence  of  the  rule  maintained  by  some  cases,  that  the 
purchaser  has  no  right  to  rely  upon  the  representations  of  the 

"Bethell  v.  Bethell,  92  Ind.  318. 

"Denston  v.  Morris,  2  Edw.  Ch.   (N.  Y.)   37. 

"Marsh  v.  Sheriff,   (Md.)    14  Atl.  Rep.  664. 

••  Luckie  v.  McGlasuon,  22  Tex.  282. 

"Pryse  v.  McOuire,  81  Ky.  611.  Lanier  v.  Hill,  25  Ala,  559.  Joaselyn  v. 
Edwards,  57  Ind.  212. 

•Saund.  PI.  527.  Munroe  v.  Pritchett,  16  Ala.  787;  50  Am.  Dec.  203. 
Britt  v.  Marks,  (Ore*.)  25  Pac.  Rep.  630;  Rolfes  v.  Rus«ell,  5  Oreg.  400; 
Denning  v.  Cretson,  0  Oreg.  241. 


ACTION  AGAINST  VENDOR  FOR  DECEIT.  269 

vendor  in  regard  to  matters  upon  which  he  might  have  obtained 
information  from  other  sources,  such  as  the  public  records.89 

The  burden  is  on  the  vendee  to  prove  the  fraud  which  he 
alleges.90  Fraud  is  never  presumed,  though  of  course  a  prima 
facie  case  of  fraud  may  be  established,  that  is,  a  state  of  facts  may 
be  shown  which,  unexplained,  will  be  held  to  amount  to  fraud.91 
The  mere  existence  of  defects  in  the  title  is  not  sufficient,  however, 
to  raise  a  presumption  of  fraud  on  the  part  of  the  vendor.92 

€9Bianconi  v.  Smith,  (Ariz)  28  Pac.  Rep.  880,  where  it  was  also  held  that 
a  purchaser  failing  to  examine  the  title  cannot  complain  of  the  vendor's 
false  and  fraudulent  representations  —  a  rule  that  may  well  excite  question. 
See  ante,  p.  260. 

90  Story   Eq.  Jur.   200.     Holland  v.    Anderson,    38   Mo.   55.     Williams  v. 
Thomas,  7  Kulp   (Pa.  Co.  Ct.  Rep.)    371. 

91  Green  v.  Chandler,  25  Tex.  148. 

**Harland  v.  Eastland,  Hard.  (Ky.)  590,  semble. 


OF  AFFIRMANCE  BY  PROCEEDINGS  AT  LAW  AFTER  THE  COX- 
TRACT  HAS  BEEN  EXECfTED. 

ACTION    FOR     COVENANT     BROKEN. 
CHAPTER  XII. 

OF  THE  COVENANT  FOR  SEISIN. 

FORM  AND  EFFECT.     §    108. 

WHAT  CONSTITUTES  A  BREACH.     §    109. 

ASSIQNABILITY  OF  THIS   CONVENANT. 

In  general.     §    110. 

Covenant  of  seisin  does  not  run  with  the  land.     §   111. 

Contrary  rule.     Doctrine  of  continuing  breach.     §    112. 

Possession  must  have  passed  with  covenantor's  deed.     §    113. 

When  Statute   of   Limitations  begins  to  run.     g    114. 

Conflict  of   laws.     §    11">. 
MEASURE  OF  DAMAGES.     §    116. 
BURDEN  OF  PROOF.      §    117. 
PLEADINGS.     §    118. 

§  10S.  FORM  AND  EFFECT.  A  covenant  for  seisin  is  usually 
expressed  by  the  formula  "  that  he,  the  said  (vendor),  is  lawfully 
seised  of  the  said  premises,"  l  but,  as  a  matter  of  prudence  in  some 
of  the  States,  and  of  necessity  in  others,  it  is  customary  for  the 
grantee  to  require  a  covenant  that  the  grantor  "  is  seised  of  an 
absolute,  perfect  and  indefeasible  estate  in  fee  simple."  This  is 
to  avoid  the  rule  established  by  those  cases  which  hold  that  a 
covenant  that  the  grantor  is  "  lawfully  seised  "  is  satisfied  by  a 
mere  seisin  in  fact,  whether  with  or  without  right.* 

In  every  case  in  which  the  grantee  is  entitled  to  require  a  con- 
veyance with  full  covenants  for  title,  he  should,  under  no  circum- 
stances, omit  the  insertion  of  a  covenant  for  seisin.  The  principal 

'Rawle  Covt*.  (5th  ed.)  ft  21.  n.  3.  Wher«  the  grantor  covenanted  that  he 
WBH  "  signed  "  of  a  good  estate,  etc.,  it  was  held  that  a  court  of  law  could  not 
read  "  wined "  for  "  Kigned,"  no  a*  to  make  the  sentence  operative  as  a 
covenant  of  neiain.  It  wan  intimated  that  relief  mijfht  be  had  in  equity. 
Hagler  v.  Simp-i.ii.  1  Binbee  (N.  Car.),  384. 

•Pout,  |  109.  thU  chapter.  A  covenant  that  the  grantor  "is  seined  in 
fee  of  all  xaid  premise* "  !H  Hiifflcient  as  a  covenant  of  seisin.  Ackley  & 
Co.  v.  Hunter  &  Co.,  154  Ala.  416;  45  So.  000. 

[270] 


OF    THE    COVENANT    FOB    SEISIN.  271 

reason  for  inserting  that  covenant  is  to  afford  the  grantee  relief  in 
those  cases  in  which  there  has  been  a.  failure  of  the  title,  but  in 
which  the  rights  of  the  adverse  claimant  have  never  been  asserted, 
and  in  which  there  has  been  no  eviction  of  the  grantee  from  the 
premises.3  Thus,  the  rule  is  general  that  a  grantee  who  has 
accepted  a  conveyance  with  covenants  for  life,  cannot  detain  the 
unpaid  purchase  money  in  case  of  a  total  failure  of  the  title, 
unless  he  has  a  present  right  of  action  upon  the  covenants  in 
question,  and  the  mere  failure  of  title  gives  him  no  right  of  action 
upon  those  covenants,  except  that  of  seisin,  unless  there  has  been 
an  actual  or  constructive  eviction  from  the  premises.  The  rule 
generally  prevailing  in  the  United  States  is  that  a  covenant  that 
the  grantor  is  "lawfully  seised"  is  the  same  as  if  he  had  cove- 
nanted that  he  was  rightfully  seised  of  an  indefeasible  estate  in  fee 
simple,4  and  is  to  be  treated  as  "  an  assurance  to  the  purchaser  that 
the  grantor  has  the  very  estate  in  quantity  and  quality  which  he 
purports  to  convey."  5  Hence,  it  follows  that  there  need  be  no 
eviction  or  disturbance  of  the  grantee's  possession  to  constitute  a 
breach  of  the  covenant  of  seisin.  The  covenant  is  broken  as  soon 
as  made  if  the  title  be  not  such  as  the  covenant  describes.6 

3  Wilder  v.  Ireland,  8  Jones  (N.  C.)  L.  90,  Avhere  the  action  was  for  breach 
of  the   covenant  for  quiet  enjoyment,  and  the  breach  alleged  was   that  the 
grantor  had  only  a  life  estate  instead  of  a  fee  in  the  premises.     There  was 
a  judgment  for  the  defendant,  the  court  saying  that  it  was  the  misfortune  of 
the  grantee  that  he  did  not  have  the  deed  drawn  by  a  lawyer,  who  would 
have  inserted  a  covenant  of  seisin. 

4  Parker  v.  Brown,    15   N.   H.   176,   disapproving  Willard  v.  Twitchell,    1 
X.  H.   175.     Gilbert  v.  Bulkley,  5  Conn.  262;    13  Am.   Dec.  57.     Catlin  v. 
Hurlburt,  3  Vt.  403;   Richardson  v.  Dorr,  5  Vt.  20;  Mills  v.  Catlin,  22  Vt. 
106.     Kincaid  v.  Brittain,  5   Sneed    (Tenn.),   119.     Joiner  v.  Trust  Co.,  33 
Okl.   266;    124  Pac.   1073.     In   Fitzhugh  v.   Croghan,  2  J.   J.   Marsh.    (Ky.) 
429;    19  Am.  Dec.   139,  it  was  said  that  the  covenant  of  seisin  was  broken 
if  the  vendor  had  not  the  possession,  the  right  of  possession  and  the  legal 
title.     This  being  so,  the  covenant  would  be  broken  if  the  grantor  had  only 
an  equitable  title,  though  he  was  in  possession,  had  paid  the  purchase  money 
in  full  and  was  entitled  to  call  for  a  conveyance.   A  covenant  that  the  grantor 
is  seised  in  fee  simple  implies  that  he  has  the  whole  estate  in  the  premises 
and  not  merely  a  good  right  or  title  to  such  interest  or  estate  as  he  has 
therein.     Mills  v.  Catlin,  22  Vt.  98. 

°Platt  Covts.  306;  Howell  v.  Richards,  11  East,  641,  language  of  Lord 
ELLENBOROUGH.  Mills  v.  Catlin,  22  Vt.  106.  Recohs  v.  Younglove,  8  Baxt. 
(Tenn.)  385.  Mercantile  Trust  Co.  v.  So.  Park  Residence  Co.,  94  Ky.  271. 

•Post,  §  109. 


272  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

It  is  a  rule  of  property  in  several  of  the  States  that  a  covenant 
that  the  grantor  is  "  lawfully  seised  "  does  not  require  that  the 
grantor  should  have  an  indefeasible  estate,  and  is  satisfied  by  an 
actual  though  tortious  seisin,7  provided  it  be  under  claim  of  title.8 
The  rule  thus  announced  applies  in  but  few  of  the  States  and  has 
been  distinctly  repudiated  in  others.9  The  principal  reason 
assigned  for  the  rule  is  that  the  true  interpretation  of  such  a 
covenant  according  to  the  intent  of  the  parties,  is  merely  that  the 
grantor  is  in  jxjssession  within  the  meaning  of  the  champerty  acts, 
or  those  which  prohibit  the  conveyance  of  pretensed  titles.10  This 
reasoning  is  by  no  means  satisfactory,  in  view  of  those  cases  which 
hold  that  a  champertous  deed  is  void  as  between  the  parties  them- 
selves," and  of  course  k  has  no  application  in  those  States  in 
which  the  conveyance  of  pretensed  titles  is  not  forbidden.  Nor 
would  that  reasoning  seem  less  objectionable  in  those  jurisdictions 
in  which  a  champertous  deed  is  held  valid  as  between  the  parties; 
for  it  is  hardly  to  be  conceived  that  a  grantee  would  require  a 

1  Marston  v.  Hobbs,  2  Mass.  433 ;  3  Am.  Doc.  61 ;  Bickford  v.  Page,  2  Mass. 
455;  Twambly  v.  Henley,  4  Mlass.  442;  Bearce  v.  Jackson,  4  MBRH.  410; 
Slater  v.  Rawson,  6  Met.  (Mass.)  444;  Raymond  v.  Raymond,  10  Gush. 
(Mass.)  140;  Follett  v.  Grant,  5  Allen  (Mass.),  174.  Griffin  v.  Fairbrother, 

1  Fairf.   (Me.)   95;  Boothlpy  v.  Hatliaway.  20  Me.  251;  Baxter  v.  Bradbury, 
20  Me.  260;  37  Am.  Dec.  49;  Wilson  v.  Widenham,  51  Me.  567.     Watt*  v. 
Parker,  27  Ind.  228.     Scott  v.  Twiss,  4  Neb.  133.     Backus  v.  McCoy,  3  Ohio, 
211;  17  Am.  Dec.  585;  Wetzel  v.  Richcreek,  (Ohio)  40  N.  E.  Rep.  1004. 

•Wheeler  v.  Hatch,  3  Fairf.  (Me.)  389.  The  grantor  was  in  possession 
in  this  case,  but  did  not  claim  title,  and  it  was  held  that  the  covenant  of 
»i'i«in  wax  broken. 

•See  Parker  v.  Brown,  supra,  p.  254,  and  cases  cited  in  same  note.  Also, 
Abbott  v.  Allen,  14  Johns.  (N.  Y.)  253;  7  Am,  Dec.  554;  Fowler  v.  Poling, 

2  Barb.  (N".  Y.)  303;  Hamilton  v.  Wilaon,  4  Johns.  (N.  Y.)  72;  4  Am.  Dec. 
253.     FurnitM  v.  Williams,  11   111.  229;  Brady  v.  Spurck,  27  111.  481;  Baker 
v.  Hunt,  40  111.  264;  King  v.  Gilson,  32  111.  348;   83  Am.  Dec.  269;  Christy 
v.  Ogle,  33  III.  295;  Fraxer  v.  Supervisors,  74  111.  291.     Kincaid  v.  Brittain, 
5   Snml    (Tenn.),   119.     Downer  v.   Smith,  38   Vt,   464;    76   Am.   Dec.    148. 
Brandt  v.  Fonter.  5  Clarke   (la.),  295;  Zent  v.  Picken,  54  Iowa,  535.     Lock 
wood  v.  Sturtevant,  6  Conn.  385;   Davis  v.  Lyman,  6  Conn.  249,  and  notes. 
Lot  v.  "I  I, ..MM-.  1  Penn.  (N.  J.  L.)  297;  2  Am.  Dec.  354.     Pollard  v.  Dwight, 
4  Cranch  (IT.  8.  S.  C.),  421.     Dale  v.  Shively,  8  Kans.  276.    Mercantile  Trust 
Co.  v.  So.  Park  Residence  Co.,  94  Ky.  271.     Clapp  v.  Herdmann,  25  111.  App. 
508, 

••CUM*  cited,  not*  7  above. 

"William,,  v.  llogan,  Meigs  (Tenn.),  189. 


OF    THE    COVENANT    FOE    SEISIN.  273 

covenant  in  effect  merely  that  the  grantor  was  in  possession,  when 
in  most  instances  he  could  without  delay  or  trouble  inform  him- 
self as  to  that  fact,  and  that  he  should  be  satisfied  with  such  a 
covenant  instead  of  requiring  one  that  would  protect  him  against 
latent  defects  in  the  title.  In  those  States,  however,  in  which 
the  rule  in  question  has  become  firmly  established  and  recognized 
as  a  rule  of  property,  the  reasons  which  have  led  thereto,  and 
even  the  fact  that  the  rule  itself  flows  from  an  arbitrary  con- 
struction of  the  covenant,  are  comparatively  unimportant,  so  long 
as  that  rule  remains  stable  and  fixed,  and  with  reference  to  which 
the  parties  may  safely  contract.  But  in  those  States,  if  any,  in 
which  the  question  has  not  been  settled  by  judicial  decision  or 
statutory  enactment,  it  is  apprehended  that  the  courts  will  be  slow 
to  give  the  covenant  of  seisin  the  interpretation  established  by 
that  rule. 

It  seems  that  the  rule  under  consideration  is  limited  strictly  in 
its  application  to' those  cases  in  which  the  grantor  covenants  that 
he  is  "lawfully  seised."  Thus  it  was  held  that  a  covenant  that 
he  was  seised  of  a  "  perfect,  absolute  and  indefeasible  estate  of 
inheritance  "  was  not  satisfied  by  an  actual  seisin,  the  grantor  in 
fact  having  no  title.12 

Covenants  of  seisin  are  by  statute  in  some  of  the  States 
implied  from  the  operative  words  "grant,  bargain  and  sell"  in 
a  conveyance.13  But  in  other  States  no  such  implication  is 

12  Strong  v.  Smith,  14  Pick.  (Mass.)   132,  the  court  saying:    "  The  defendant 
covenanted  that  he  was  seised  of  a  perfect,  absolute  and  indefeasible  estate  of 
inheritance  in  fee  simple,  and  he  clearly  had  no  such  title;  so  that  his  cove- 
nant was  broken  on  the  delivery  of  the  deed.    He  undertook  to  convey,  and  the 
grantee  agreed  to  purchase,  an  indefeasible  estate;  and  the  defendant  had  no 
such  estate  to  convey.     The  intended  purchase,  therefore,  has  wholly  failed. 
Indeed,  it  may  well  be  doubted  whether  the  defendant  had  any  title  sufficient 
to  sustain  a  common  covenant  of  seisin."     See,  also,  Price  v.  Johnson,  4  Vt. 
253.     Prescott  v.  Trueman,  4  "Mass.  631;  3  Am.  Dec.  249.     Garfield  v.  Wil- 
liams, 2  Vt.  328. 

13  Memmert  v.  McKeen,  112  Pa.  St.  315;  so  in  Missouri,  Schnelle  Lumber 
Co.  v.  Barlow,  34  Fed.  Rep.  853.     Jones  v.  Gallagher,  54  Okl.  611,  154  Pac. 
552.     Munford  v.  Kent,  154  Mo.  36.     55  S.  W.  271.     A  covenant  of  seisin 
will  be  implied  from  the  words  "  bargained,  sold  and  granted  "  in  the  grant- 
ing part  of  a  deed,  under  a  statute  giving  that  effect  to  the  words  "grant, 

35 


274  MARKKTABLK    TITI.K    TO    HEAL    ESTATE. 

made,14  and  none  existed  at  common  law.  The  question  whether 
a  deed  made  in  another  State  contains  a  covenant  of  seisin  must 
be  determined  by  the  law  of  that  State.15 

The  right  of  action  for  a  breach  of  the  covenant  of  seisin  is  per- 
sonal and  passes  to  the  personal  representative  and  not  to  the  heir.18 
But  if  no  actual  damage  was  sustained  by  the  ancestor,  though  the 
breach  transpired  in  his  lifetime,  the  right  of  action  goes  with  the 
land  to  the  heir,  provided  the  actual  damage  falls  upon  him,  by 
loss  of  the  land.17 

§  100.  WHAT  CONSTITUTES  A  BREACH  OF  THE  COVENANT 
OF  SEISIN.  The  covenant  of  seisin  is  broken  by  any  lessening  of 
the  corpus  or  physical  extent  of  the  property  conveyed,18  or  by  any 
diminution  of  the  quantity  of  estate  therein,  as  if  the  interest 
conveyed  turn  out  to  be  a  life  estate  instead  of  a  fee  simple.19  It 
has  been  held  that  the  covenant  was  not  broken  by  the  conveyance 

bargain  and  sell."  Foote  v.  Clark,  102  Mo.  394;  14  S.  W.  Rep.  08.  The 
habendum  clause  does  not  qualify  nor  restrict  the  covenant  of  seisin  implied 
from  the  use  of  the  words  "  grant,  bargain,  and  sell."  Coleman  v.  (Mark.  SO 
Mo.  App.  339.  In  Alabama,  the  covenant  of  seisin  implied  from  the  words 
"grant"  etc.,  is  limited  to  the  acts  of  the  grantor  and  those  claiming  under 
him.  Mackintosh  v.  Stewart,  181  Ala.  328,  61  So.  956. 

14 Front  v.  Raymond,  2  Caines  (N.  Y.),  188;  2  Am.  Dec.  228.  Aiken  v. 
Franklin.  (Minn.)  43  X.  W.  839. 

"Jackson  v.  Green,  112  Ind.  341;   14  N.  E.  Rep.  89. 

'•Com.  Dig.  Admr.  B.  13;  Butler  N.  P.  158.  Lucy  v.  Levington,  1  Vent. 
175;  S.  C.,  2  Lev.  26.  Hamilton  v.  Wilson,  4  Johns.  (N.  Y.)  72;  4  Am.  Dec. 
253. 

"2  Sugd.  Vend.  577.  Kingdon  v.  Nottle,  1  M.  &  S.  355.  King  v.  Jones,  5 
Taunt.  418;  Orme  v.  Broughton,  10  Bing.  353.  Lowrey  v.  Tilleny,  31  Minn. 
500;  18  N.  W.  Rep.  452. 

u Wilson  v.  Forbes.  2  Dev.  (X.  C.)  30.  holding  that  the  covenant  of  seisin 
in  broken  if  the  grantor  has  no  right  to  sell  all  the  land  embraced  within 
the  boundaries  mentioned  in  his  deed.  So,  also  if  the  grantor  of  a  mill-site 
have  no  right  to  raise  the  dam  to  the  height  specified  in  the  deed.  Walker 
v.  Wilson,  13  Wis.  522.  So,  also,  if  the  covenator  have  not  all  the  shares 
of  a  water-right  that  his  deed  purports  to  convey.  Seyfried  v.  Knobluch, 
44  Colo.  86.  96  Pac.  993. 

"Frazer  v.  Supervisors,  74  111.  291.  Mixon  v.  Burleson,  (Ala.)  82  So.  98. 
Lorkwood  v.  Sturdevant,  0  Conn.  373.  A  covenant  that  the  grantor  is  seised 
of  an  undividrd  moiety  of  an  estate  is  broken  if  there  has  !>een  a  judicial 
partition  of  the  premises,  though  without  the  knowledge  of  the  grantor,  and 
though  he  conveyed  only  his  share  of  the  land.  Morrison  v.  McArthur,  43 
M*.  5fl7.  The  covenant  of  seisin  is  broken  if  the  grantor  has  neither  the 
pOMMSion,  the  right  of  possession,  nor  the  right  to  the  legal  title  at  the  time 


OF    THE    COVENANT    FOR    SEISIN.  275 

of  an  estate  merely  defeasible  upon  the  happening  or  non-happen- 
ing of  some  future  event,20  such  as  the  disaffirmance  of  a  convey- 
ance executed  during  the  minority  of  the  grantor,21  but  the  better 
opinion  seems  to  be  that  the  covenant  of  seisin  is  satisfied  only  by 
the  transfer  of  an  indefeasible  title,  and  that  it  is  technically 
broken  as  soon  as  made,  if  the  title  be  from  any  cause  defeasible  ;22 

of  the  conveyance.  Coleman  v.  Clark,  80  Mo.  App.  339;  or  if  the  title  be 
in  a  trustee  instead  of  the  grantor.  Jones  v.  Haseltine,  124  Mo.  App.  674, 
102  S.  W.  40. 

20  Pollard  v.  Dwight,  4  Cranch  (U.  S.  S.  C.),  421.    Van  Nbstrand  v.  Wright, 
Lalor's  Supp.    (N.  Y.)   260;   Coit  v.  McReynolds,  2  Rob.    (N.  Y.)   658.     Wait 
v.  Maxwell,  5  Pick.  (Mass.)   217;  16  Am.  Dec.  391,  where  the  grantor  derived 
title  under  a  conveyance  by  a  person  non  compos  mentis.     The  fact  that  the 
title  of  the  grantor  was  acquired  under  forclosure  proceedings  in  which  the 
mortgagor,  a  non-resident,  was  served  by  publication,  and  that  the  title  may 
be  attacked  by  heirs  of  the  mortgagor  within  the  statutory  period  for  showing 
cause  against  the  decree  is  no  breach   of  the  covenant  of  seisin  where  the 
existence  of  such  heirs  is  not  certain.    Zarkowski  v.  Schroeder,  75  N.  Y.  Supp. 
1021;  71  App.  Div.  526. 

21  Bool  v.  Mix,  17  Wend.    (1ST.  Y.)    132;  31  Am.  Dec.  285. 

22Shep.  Touchstone,  170;  2  Sugd.  Vend.  (8th  Am.  ed.)  286  (610)  ;  2  Washb. 
Real  Prop.  (4th  ed.)  457  (657)  ;  4  Kent  Com.  (llth  edv)  555  (471)  ;  Rawle 
Covts.  (5th  ed.)  §  58.  See,  generally,  also,  cases  cited  supra  this  chapter  and 
"  Covenant  against  Incumbrances,"  subd.  "  What  Constitutes  Breach." 
Abbott  v.  Allen,  14  Johns.  (N.  Y.)  253;  7  Am.  Dec.  554;  Adams  v.  Conover, 
87  N.  Y.  422;  41  Am.  Dec.  381.  Downer  v.  Smith,  38  Vt.  464;  76  Am.  Dec. 
148;  Clark  v.  Conroe,  38  Vt.  471;  Clement  v.  Bank,  61  Vt.  298;  17  Atl.  Rep. 
717.  Brandt  v.  Foster,  5  Cl.  (Iowa)  295;  Van  Wagner  v.  Van  Nostrand, 

19  Iowa,  427;   Zent  v.  Picken,  54  Iowa,  535.     Bottorf  v.  Smith,  7  Ind.  673. 
Frazer  v.  Board  of  Supervisors,  74  111.  282;   Brady  v.   Spurck,  27  111.  481; 
Christy  v.  Ogle,  33  111.  295.     West  v.  Stewart,  7  Pa.  St.  122.    Hall  v.  Gale, 

20  Wis.  293.    Wilder  v.  Ireland,  8  Jones  L.   (N.  C.)   90.    Kincaid  v.  Brittain, 
5   Sneed    (Tenn.),    119.     Lamb  v.   Danforth,  59  Me.   322;    8   Am,  Dec.   426; 
Montgomery  v.  Reed,   69  Me.  510.     Pollard  v.  Dwight,  4  Cranch    (U.  S.), 
421.    Lot  v.  Thomas,  1  Penn.   (1ST.  J.  L.)   297.     Davis  v.  Lyman,  6  Conn.  249. 
Cent.  Appalachian  Co.  v.  Buchanan,  90  Fed.  454;   Bolinger  v.  Brake,  4  Kan. 
App.  180;  45  Pac.  950.     Jewett  v.  Fisher,   (Kan.  App.)   58  Pac.  1023. 

Recent  cases.  Hayden  v.  Patterson,  39  Colo.  15,  88  Pac.  437;  Seyfried  v. 
Knoblauch,  44  Colo.  86;  96  Pac.  993;  Rennie  v.  Gibson,  (Okl.)  183  Pac.  483; 
Riddle  v.  Hudson,  (Okl.)  172  Pac.  921;  Faller  v.  Davis,  30  Okl.  56;  118  Pac. 
382;  Eames  v.  Armstrong,  142  1ST.  C.  506;  55  S.  E.  405;  Crowell  v.  Jones, 
167"  1ST.  C.  386,  83  S.  E.  551 ;  Brown  v.  Carpenter,  99  Wash.  227?  169  Pac.  331; 
Hilliker  v.  Rueger,  228  X.  Y.  11;  126  N.  E.  266;  Veit  v.  McCauslan,  142 
N.  Y.  Supp.  281;  157  App.  Div.  335;  Jeffords  v.  Dreisbach,  168  Mo.  App. 
577;  153  S.  W.  274.  A  covenant  in  a  deed  that  "I  hold  said  premises  by 
good  and  perfect  title  "  is  broken  as  soon  as  made  if  the  grantor's  title  is  not 
perfect.  Webb  v.  Wheeler,  80  Neb.  438;  114  N.  W.  636. 


276  MARKETABLE    TITLE    TO    REAL    ESTATE. 

leaving  the  fact  that  the  title  may  never  be  defeated,  to  be  con- 
sidered only  with  reference  to  the  damages  to  be  awarded  to  the 
grantee.  It  is  not  necessary  to  show  an  eviction,  or  disturbance 
of  the  possession,  of  the  covenantee.28 

The  covenant  of  seisin,  according  to  the  weight  of  authority,  is 
broken  if  at  the  time  of  the  conveyance  the  premises  be  in  the 
possession  of  one  claiming  adversely  to  the  grantor.  The  statutes 
prohibiting  the  sale  of  pretensed  titles,  and  declaring  all  such  con- 
veyances to  be  champertous,  do  not  affect  the  validity  of  the  con- 
veyance as  between  the  grantor  and  grantee.24  The  covenant  of 
seisin  is  broken  if  there  be  no  such  land  in  existence  as  the  grantor 
undertakes  to  convey.25  So  also,  if  at  the  time  of  the  conveyance 

"Hilliker  v.  Rueger,  228  X.  Y.  11:   126  N.  E.  266. 

"Harvey  v.  Doe,  23  Ala.  637;  Abernathy  v.  Boazman,  24  Ala.  189;  60  Am. 
Dec.  459,  citing  Jackson  v.  Deraont,  9  Johns.  (X.  Y.)  55;  6  Am.  Dec.  259; 
Livingston  v.  Iron  Works,  9  Wend.  (X.  Y.)  510;  Van  Hoescn  v.  Benham,  15 
Wend.  (X.  Y.)  164.  Den  v.  Geiger,  4  Halst.  (X.  J.)  225.  Edwards  v.  Roys, 
18  Vt.  473.  Adkins  v.  Tomlinson,  121  Mo.  487.  Stearns  v.  Jewel,  27  Colo. 
App.  390,  140  Pac.  846.  A  covenant  of  seisin  is  broken  by  railway  occupation 
of  part  of  the  premises  as  a  right  of  way.  Wadhams  v.  Swan,  109  111.  46. 
The  proposition  stated  in  the  text  is  not  without  opposing  authority.  Thus 
in  Thomas  v.  Perry,  Pet.  (C.  C.  U.  S.)  39,  it  was  held  that  a  deed  did  not 
convey  lands  which  were  out  of  the  possession  of  the  grantor  at  the  time 
the  deed  was  made,  and  that  consequently  a  covenant  of  seisin  contained  in 
the  deed  was  not  broken  as  to  those  lands.  See,  also,  Williams  v.  Hogan, 
Meigs  (Tenn.),  189.  In  Tennessee,  under  a  statute  providing  that  "  no  person 
shall  agree  to  buy,  or  to  bargain  or  sell,  any  pretended  right  or  title  in 
lands  '  *  where  the  seller,  etc.,  has  not  •  *  *  been  in  actual  posses- 

sion,' it  was  held  that  such  a  sale  was  void  even  as  between  the  parties,  the 
court  saying  that  to  give  a  contrary  construction  to  the  statute  would  be  to 
permit  the  buyer  of  dormant  claims  securely  to  take  a  deed  or  covenant  from 
the  claimant,  and  if  he  failed  to  recover  by  a  devise,  in  the  name  of  such 
claimant  to  indemnify  himself  by  a  suit  against  his  vendor,  and  that  the 
effect  would  be  to  encourage  and  not  to  suppress  the  spirit  and  practice  of 
champerty.  Williams  v.  Hogan,  Mcigs  (Tenn.),  189.  See,  also,  Whittaker 
v.  Kone,  2  Johns.  Cas.  (N.  Y.)  58,  and  note.  A  covenant  for  title  is  not 
broken  by  allowing  the  adverse  possession  of  a  stranger  to  ripen  into  title 
under  the  statute  of  limitations.  Schwartz  v.  Jones,  57  Tex.  Civ.  App. 
603;  122  8.  W.  956.  But  see  Mackintosh  v.  Stewart,  181  Ala.  328;  61  So. 

m, 

*  Ha- ford  v.  Pearson,  9  Allen  (Mass.),  389;  85  Am.  Dec.  764,  reversing  the 
court  below,  which  had  held  that  there  could  be  no  breach  of  the  covenant 
when  there  wan  no  land  to  which  the  covenant  could  attach. 


O*    THE    COVENANT    FOB    SEISIN.  277 

the  grantor  does  not  own  such  things  fixed  to  the  freehold  as  would 
pass  by  a  conveyance  of  the  land  if  he  owned  them.26 

Neither  a  judgment  nor  a  mortgage,27  nor  a  mere  incumbrance,28 
such  as  an  outstanding  term  of  years,29  nor  an  easement  in  the 
premises,30  nor  a  prior  void  and  unenforcible  conveyance  of  the 
land,31  would  amount  to  a  breach  of  the  covenant  of  seisin,  since 
none  of  these  operate  a  divestiture  of  the  grantor's  technical  seisin. 
A  right  of  dower,  contingent 32  or  consummate,33  is  an  incumbrance 
within  the  foregoing  rule.  Nor  is  this  covenant  broken  by  the 
existence  of  a  highway  over  the  land  granted,34  since  the  freehold 
still  remains  in  the  owner  of  the  soil.  Neither  is  the  covenant 

MMott  v.  Palmer,  1  Comst.  (N.  Y.)  564,  where  the  fixtures  consisted  of  a 
rail  fence  placed  there  by  a  tenant  under  an  agreement  by  which  he  might 
remove  them  at  pleasure.  The  proposition  stated  in  the  text  follows  from  the 
technical  definition  of  the  word  "  land,"  which  includes  the  soil,  everything 
within  it,  and  all  buildings,  trees,  fences  and  fixtures  upon  it. 

27  Reasoner  v.  Edmundson,  5  Ind.  394.  Sedgwick  v.  Hollenbeck,  7  Johns. 
(N".  Y.)  376;  Stanard  v.  Eldridge,  16  Johns.  (N.  Y.)  254.  The  reason  of  this 
rule  is  that  the  mortgagor  is  regarded. as  the  real  owner,  and  the  mortgagee 
as  having  a  chattel  interest  only.  Runyan  v.  Mesereau,  11  Johns.  (N.  Y.) 
538;  6  Am.  Dec.  393,  and  cases  cited  in  note.  The  rule  above  stated  applies, 
though  the  prior  mortgage  be  foreclosed  and  the  property  lost  to  the  cov- 
enantee.  Coit  v.  McReynolds,  2  Rob.  (N.  Y.)  655. 

28Fitzhugh  v.  Croghan,  2  J.  J.  Marsh.  (Ky.)  439;  19  Am.  Dec.  139;  Hebler 
v.  Brown,  41  N.  Y.  Supp.  441.  Kuntzman  v.  Smith,  77  N.  J.  Eq.  30;  75  Atl. 
1009. 

23  Under  a  statute  providing  that  a  conveyance  of  lands  shall  be  effectual 
without  the  attornment  of  a  tenant  of  the  grantor,  it  was  held  that  the  con- 
tinued occupancy  by  the  tenant  after  the  grant,  did  not  constitute  a  breach 
of  the  covenant  of  seisin.  Kellum  v.  Insurance  Co.,  101  Ind.  455.  See,  also, 
Lindley  v.  Dakin,  13  Ind.  388;  Hebler  v.  Brown,  41  N".  Y.  Supp.  441,  where 
the  incumbrance  was  a  lease  of  the  mines  on  the  premises  for  99  years  with 
an  option  to  purchase  the  mineral  interest. 

30Blondeau  v.  Sheridan,  81  Mo.  545. 

31  Reed  v.  Stevens,  (Conn.)    107  Atl.  495. 

32Massie  v.  Craine,  1  McC.  (S.  C.)  L.  489;  Building  Co.  v.  Fray,  96  Va. 
559,  32  S.  E.  58. 

33  Tuite  v.  Miller,  10  Ohio,  382,  the  court  saying  there  was  no  breach  though 
the  purchaser  was  obliged  to  pay  a  sum  in  commutation  of  the  widow's  right. 
The  purchaser  should  have  protected  himself  by  a  covenant  against  incum- 
brances.  Fishel  v.  Browning,  145  N.  C.  71;  58  S.  E.  759. 

34Boone  Real  Prop.  §  311;  Tiedeman  Real  Prop.  §  851;  4  Am.  &  Eng. 
Encyc.  of  L.  479.  Whitbeck  v.  Cook,  15  Johns.  (N.  Y.)  483;  8  Am.  Dec. 
272.  Vaughan  v.  Stuzaker,  16  Ind.  338.  Moore  v.  Johnston,  87  Ala.  220; 
6  So.  Rep.  50. 


278  MAKKETAHLE    TITLE    TO    HEAL    ESTATE. 

broken  by  condemnation  proceedings,50  nor  by  an  unlawful  intru- 
sion or  encroachment  on  the  laud ;  "  nor  by  the  unlawful  removal 
of  fixtures  by  a  tenant  after  the  expiration  of  his  term."  But 
the  right  of  a  third  person  to  remove  fixtures  from  the  proj>erty 
conveyed,  is  a  breach  of  the  covenant  of  seisin.88  Nor  is  the  cov- 
enant broken  where  lands  which  the  vendor  did  not  own  were  by 
mistake  included  in  the  deed.39  If  the  grantor  were  lawfully 
seised  of  the  estate  and  had  the  legal  title  at  the  time  of  the  cove- 
nant, no  subsequent  event  could  amount  to  a  breach  thereof.40 
Whatever  subsequently  occurs  to  defeat  the  title  cannot  affect  the 
covenant  of  seisin.41  Of  course  there  is  little  occasion  for  the 
application  of  this  principle,  except  in  the  case  of  a  tortious  dis- 
seisin of  the  covenantee,  or  the  enforcement  of  a  prior  lien  or 
incumbrance  upon  the  premises.  The  covenant  of  seisin  secures 
the  grantee  only  against  any  title  existing  in  a  third  person.  The 
fact  that  the  grantee  himself  was  seised  of  the  premises  is  not  a 
breach.41  He  would  be  estopped  from  setting  up  his  title  against 
the  grantor.43  The  fact  that  the  covenantee  knew  of  a  defect  in 

"Smith  v.  Hughes,  50  Wis.  620;  Merser  v.  Oestrich.  52  Wis.  693. 

"Smith  v.  Hughes,  50  Wis.  620.  Fehlaber  v.  Fehlahcr.  140  N.  Y.  Supp. 
973;  SO  Misc.  Rep.  14ft:  hut,  held  also,  that  the  encroachment  of  the  covenan- 
tor'* buikHng  on  the  lot  of  an  adjoining  owner,  is  a  breach  of  the  covenant 
of  seisin. 

*  Loughran  v.  Rosa,  45  N.  Y.  792. 

•Herzog  v.  Marx,  202  X.  Y.  1 ;  94  X.  E.  1063;  35  L.  R.  A.  (X.  S.',   976. 
"Maxwell  v.  Bank,   175  X.  C.   ISO;   95  S.  E.   147;   Pinckard  v.  Mortgage 
Co.,  143  Ala.  571;   39  So.  350;  Prestwood  v.  Carlton,  162  Ala.  327;  50  So. 

J.M 

•Fit/Jiugh  v.  C'roghan,  2  J.  J.  Marsh.  (Ky.)  439;  1ft  Am.  Dec.  139,  citing 
2  Saund.  171  c.  Morris  v.  Phelpe,  5  Johns.  (N.  Y.)  53;  4  Am.  Dec.  323. 
Jones  v.  Warner,  81  111.  343. 

**Coit  v.  MeReynolds,  2  Rob.  (X.  Y.)  655.  This  wan  an  action  for  breach 
of  a  covenant  of  «i-i-m.  The  covenantor  derived  title  under  a  HherilF's  deed 
executed  in  pursuance  of  a  judgment  of  foreclosure.  The  judgment  wan 
opened  while  the  property  watt  in  the  plaint iff'*  hand-*,  and  a  prior  mortgage 
wan  forecloned,  whereby  the  plaintiff  lout  the  property. 

"Bigelow  Kittoppcl,  346.  Furnens  v.  WilliamH,  11  111.  22ft;  Beebe  v.  Swart- 
wont.  3  Oil.  (111.)  162.  Fitch  v.  Baldwin,  17  Johns.  (N.  Y.)  161.  Horrigan 
v.  Rice,  3ft  Minn.  49;  38  X.  W.  Rep.  765.  Holt  v.  Ruleati,  83  Vt.  151;  74  AtL 
looii;  Kan.,-  v.  v.  Armstrong,  146  N.  C.  1;  5ft  S.  E.  165,  125  Am.  St.  Rep. 
4341. 

*  Fitrh  v.  Baldwin,  17  John*.  (X.  Y. >   161.  the  court  Having:  "It.  can  never 
be  permitted  to  a  person  to  accept  a  deed  with  covenant*  of  -ri-in.  and  then 


OF    THE    COVENANT    FOR    SEISIN.  279 

the  title  when  he  took  the  conveyance,  is  immaterial.  The  object 
of  the  covenant  is  to  protect  against  known  as  well  as  unknown 
defects  in  the  title.44 

§  110.  ASSIGN  ABILITY  OF  THE  COVENANT  OP  SEISIN.  In 
general.  A  covenant  for  title  is  said  to  run  with  the  land  when 
the  right  to  recover  damages  for  a  breach  thereof  passes  with  the 
land  to  the  covenantee's  grantee,  or  to  the  heir  of  the  covenantee, 
instead  of  remaining  with  the  covenantee  in  the  first  instance,  or 
passing  to  his  personal  representative  in  the  second.  In  either 
case  the  person  -thus  succeeding  to  the  rights  of  the  covenantee  is 
styled  "assignee;"  there  is,  in  strictness,  however,  no  assign- 
ment ;  the  rights  of  the  so-called  -assignee  being  cognizable  by  a 
court  of  law,  he  being  permitted  to  sue  in  his  own  name  for  a 
breach  of  the  covenant.  His  rights  spring  rather  from  a  privity 
of  estate  between  himself  and  the  covenanting  parties  than  from 
any  formal  assignment  on  the  part  of  the  covenantee,40  though  of 
course  he  cannot  claim  those  rights  except  under  an  instrument 
sufficient  to  convey  the  land.46  All  covenants  for  title  run  with 
the  land  until  they  are  broken.47  They  then  become  a  species  of 
personal  property,  a  chose  in  action,  which,  like  any  other  per- 
sonal property,  passes  to  the  personal  representative  of  the  cove- 
nantee. It  is  -sometimes  said  that  the  covenants  cease  to  run  with 
the  land  after  breach  because  then  they  are  turned  into  mere 
rights  of  action,  incapable  of  assignment  at  common  law.  But 
as  the  running  of  the  covenants  with  the  land  is  an  incident  flow- 
ing from  privity  of  estate  between  the  parties,  and  in  no  wise 
dependent  upon  any  assignment  of  rights  accrued  on  the  part 
of  the  covenantee  to  his  grantee,  the  better  reason  would  seem  to 
be  that  the  covenants  no  longer  run  with-  the  land  simply  because 
their  purposes  have  been  accomplished,  and  nothing  remains  of 

turn  round  upon  his  grantor  and  allege  that  his  covenant  is  broken,  for  that 
at  the  time  he  accepted  the  deed  he  himself  was  seised  of  the  premises.  If 
there  had  been  fraud  in-  the  case,  and  the  grantee  could  have  shown  that  he 
had  been  induced  by  undue  means  and  in  ignorance  of  his  rights  to  take  a 
deed  for  his  own  land,  there  might  be  relief  in  a  court  of  equity." 

44  Post,  §§  127,  135;  Knapp  v.  Foley,  140  Minn.  423;  168  N.  W.  183. 

43Rawle  Covts.  .(5th  ed.)    §  232. 

"•Beardsley  v.  Knight,  4  Vt,  471;   33  Am.  Dec.  193. 

"Eawle  Covts.   (5th  ed.)    §  204. 


280  MARKETABLE    TITLE    TO    REAL    ESTATE. 

them  except  a  right  of  action  for  the  breach,  which  would  no  more 
pass  by  an  alienation  on  the  part  of  the  owner  of  the  land  than 
would  a  right  to  recover  damages  for  a  trespass  committed  upon 
the  property.  In  those  States,  however,  in  which  a  remote  grantee 
is  held  entitled  to  the  benefits  of  the  covenant  of  seisin  and  the 
covenant  against  incumbrances,  he  is  properly  described  as 
"  assignee,"  the  conveyance  of  the  land  being  construed  in  equity 
to  amount  to  an  assignment  of  the  grantor's  right  of  action  for  a 
breach  of  those  covenants.48 

§  111.  Covenant  of  seisin  does  not  run  with  land.  In  most 
of  the  American  States  the  rule  is  established  that  a  covenant  of 
seisin  does  not  run  with  the  land.49  The  principal  reasons  assigned 

•Roberta  v.  Levy,  3  Abb.  Pr.   (N.  Y.)   311. 

*4  Kent  Com.  (llth  ed.)  471;  2  Sugd.  Vend.  (8th  Am.  ed.)  240  (577), 
notes;  Rawle  Covts.  (5th  ed.)  §  205.  Pate  v.  Mitchell,  23  Ark.  590;  79  Am. 
Dec.  114.  Hen.lrieks  v.  Kesee,  32  Ark.  714.  Salmon  v.  Vallejo,  41  Cal.  481. 
i  he  cases  cited  to  the  proposition  that  the  covenant  of  seisin  is  broken 
as  soon  as  made,  if  the  covenantor  have  no  title;  ante,  §  109.  Greenby  v. 
Willcocks,  2  Johns.  (N.  Y.)  1,  LIVINGSTON,  J.,  dissenting;  3  Am.  Dec.  379. 

Tliis  was  the  leading  case  in  Xew  York  prior  to  the  adoption  of  the  Code 
df  Civil  Procedure  in  that  State,  a  provision  of  which  that  every  action  shall 
be  prosecuted  by  and  in  the  name  of  the  real  party  in  interest,  has  been  con- 
strued to  give  to  a  remote  assignee  the  right  to  maintain  an  action  in  his 
own  name  for  breach  of  a  covenant  of  seisin  made  with  one  through  whom 
he  claims  title.  See  infra,  §  112.  Other  cases  in  that  State  following  the 
derision  in  Grcenby  v.  Willcocks,  supra,  are  as  follows:  Tillotson  v.  Boyd, 
I  -andf.  (N.  Y.)  521;  Blydenburgh  v.  Cotheal,  1  Duer  (X.  Y.),  176; 
Hamilton  v.  Wilson,  4  Johns.  (N.  Y.)  72;  4  Am.  Dec.  253;  McCarty  v.  Leg- 
j-ftt.  3  Hill  (N.  Y.),  134;  Beddoe  v.  Wadsworth,  21  Wend.  (N.  Y.)  120; 
Mygatt  v.  Coe.  124  N*.  Y.  212;  N.  E.  Rep.  611.  In  other  states;  Bickford 
v.  Page,  2  Mass.  455;  Marston  v.  Hobbs,  2  Mass.  433;  3  Am.  Dec.  61,  obiter; 
Slater  v.  Rawson.  1  Met.  (Mass.)  455;  TufU  v.  Adams,  8  Pick.  (Mass.)  549; 
Whit  in  •>  v.  Din-more,  6  Cush.  (Mass.)  128;  Sprague  v.  Baker,  17  Mass.  586; 
i:,irtliolome\v  v.  ('under.  14  Pick.  (Mass.)  KJ7;  Bynes  v.  Rich,  3  Gray 
(Muss.)  518;  Ladd  v.  N'oyes,  1.37  Mass.  151.  It  is  difficult  to  reconcile  tln-e 
derisions  with  those  of  the  same  State  declaring  that  the  covenant  of  sei-in 
is  .«ati*fied  l>y  a  seisin  in  fart  though  without  right  ;  for  to  reach  the  con- 
i-lu-i'iii  that  the  covenant  in  i|in--tinn  does  not  run  with  the  land,  it  seems 
ali-olutely  necessary  to  deride  that  the  covenant  is  broken  as  soon  as  made 
if  tlic  covenantor  was  not  at  that  time  seised  of  an  indefeasible  estate. 
Miti-hell  v.  Warner,  5  Conn.  497.  This  case  contains  an  elaborate  exposition 
of  the  rule  that  the  covenant  of  seisin  docs  not  run  with  the  land,  and  has 
been  frequently  cited  us  a  leading  i-a-e.  l.<><k\vood  v.  Sturdevant,  6  Conn. 
373;  Davis  v.  Lyman,  6  Conn.  _':.(,.  Hartford  Co.  v.  Miller,  41  Conn.  112; 


OF    THE    COVENANT    P'OK    SEISIN.  281 

for  this  position  are:  (1)  That  the  covenant  in  question  is  broken 
as  soon  as  made  if  the  covenantor  have  no  title,  and  that  a 
present  right  of  action  immediately  accrues  thereupon  to  the 
covenantee,  which,  being  a  mere  chose  in  action,  is  both  at  corn- 
Gilbert  v.  Bulkley,  5  Conn.  262;  13  Am.  Dec.  57.  Prov.  Life  &  Tr.  Co.  v. 
Seidel,  (Pa.  St.)  23  Atl.  Rep.  561.  Kenny  v.  Norton,  10  Heisk.  (Tenn.)  384. 
Scoffins  v.  Grandstaff,  12  Kans.  467.  Pence  v.  Duval,  9  B  Mon.  (Ky.)  48. 
Smith  v.  Jefts,  44  N.  H.  482.  Chapman  v.  Kimball,  7  Neb.  399;  S.  C.,  11 
Neb.  250;  Davidson  v.  Cox,  10  Neb.  150;  4  N.  W.  Rep.  1035.  Chapman  v. 
Holmes,  5  Halst.  (N.  J.)  20  ;  Carter  v.  Denman,  3  Zab.  (N.  J.  L.)  260; 
Lot  v.  Thomas,  2  N.  J.  L.  297;  2  Am,  Dec.  354;  Garrison  v.  Sandford,  12 
N.  J.  L.  261.  Durand  v.  Williams,  53  Ga.  76,  obiter;  but  see  Redvvine  v. 
Brown,  10  Ga.  318,  where  a  doubt  was  suggested  as  to  the  rule  stated  in  the 
text  in  view  of  the  general  policy  of  the  laws  of  that  State  in  favor  of  the 
assignability  of  choses  in  action.  By  statute  in  Georgia  since  the  above 
decision  an  assignee  is  given  the  benefit  of  the  covenant  against  incum- 
brances.  Rev.  St.  1882,  p.  672.  Randolph  v.  Kinney,  3  Rand.  (Va.)  397. 
Grist  v.  Hodges,  3  Dev.  (N.  C.)  L.  200.  Ravenel  v.  Ingram,  131  N.  C.  549; 
42  S.  E.  967.  Brady  v.  Spurck,  27  111.  482;  Jones  v.  Warner,  81  111.  343; 
Richard  v.  Bent,  59  111.  38;  14  Am.  Rep.  1.  This  case  distinguishes  between 
a  covenant  of  seisin  and  that  against  incumbrances,  holding  that  an  assignee 
is  entitled  to  the  benefit  of  the  latter.  Moore  v.  Merrill,  17  N.  H.  75;  43  Am. 
Dec.  593.  Lowery  v.  Tilleny,  31  Minn.  500;  18  N.  W.  Rep.  452.  Williams  v. 
Wetherbee,  1  Aik.  (Vt.)  253;  Garfield  v.  Williams,  2  Vt.  327;  Pierce  v. 
Johnson,  4  Vt.  255;  Swasey  v.  Brooks,  30  Vt.  692.  Westrope  v.  Chambers, 
51  Tex.  178.  Pillsbury  v.  Mitchell,  5  Wis.  21.  The  rule  stated  in  the  text 
prevailed  in  Maine  prior  to  the  statute  in  that  State  providing  in  express 
terms  that  an  assignee  should  have  the  benefit  of  the  covenant  of  seisin. 
Hacker  v.  Storer,  8  Gr.  (Me.)  228;  Pike  v.  Galvin,  29  Me.  188.  Lewis  v. 
Ridge,  Cro.  Eliz.  863,  and  Lucy  v.  Livingston,  2  Lev.  26;  1  Vent.  175;  2 
Keble,  831,  have  been  very  generally  cited  by  the  American  courts  in  support 
of  the  proposition  contained  in  the  text.  Mr.  Ravvle,  however,  in  his  erudite 
treatise  on  the  Law  of  Covenants  for  Title,  says  that  they  decide  nothing 
more  than  that  a  covenant  for  quiet  enjoyment  ceases  to  run  with  the  land 
after  it  is  broken.  Covts.  for  Title,  §  205.  In  Garrison  v.  Sanford,  12 
N.  J.  L.  261,  the  court  held  that  a  breach  of  the  covenants  of  seisin  or 
against  incumbrances  did  not  enure  to  the  benefit  of  a  subsequent  grantee 
of  the  land.  "  If,"  said  the  court,  "  a  man  breaks  the  leg  of  my  horse,  whom 
I  afterwards  sell,  the  purchaser  cannot  sue  for  the  injury,  as  it  is  not  done 
to  him;  and  the  injury  to  me  is  not  diminished  nor  my  right  to  redress 
destroyed  because  I  have  parted  with  the  animal."  The  case  supposed  by  the 
court  is  by  no  means  parallel  to  that  of  a  subsequent  grantee  claiming  the 
benefit  of  the  original  grantor's  covenant  of  seisin.  In  the  case  imagined 
the  actual  loss,  whatever  it  may  be,  is  sustained  by  the  vendor,  while  in 
the  case  of  a  breach  of  the  covenant  of  seisin  the  actual  loss  or  injury  must, 
if  the  land  has  been  transferred,  fall  upon  the  grantee,  and  it  would  seem  as 

36 


282  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

mon  law  and  by  virtue  of  the  statute  32  Hen.  VIII,  c.  24,  incap- 
able of  assignment;  and  (2)  that  the  grantor  and  covenantor 
having  no  title  no  estate  could  pass  by  his  conveyance  to  the 
'•Mvciiaiitee,  and  that  consequently  there  was  nothing  with  which 
the  covenant  could  run  so  as  to  enure  to  the  benefit  of  a  remote 
grantee.** 

inequitable  to  deny  to  him  the  right  of  action  on  the  covenant  as  it  would 
be  to -give  to  the  seller  of  the  horse  the  right  to  recover  for  an  injury  to 
the  horse  inflicted  after  the  property  in  it  had  passed  to  the  vendee.  In 
Raymond  v.  Squire,  11  Johns.  (N.  Y.)  47,  the  covenantee  was  allowed  to 
recover  in  an  action  on  a  covenant  of  seisin  after  the  land  had  been  trans- 
ferred by  him.  A  covenantee  does  not  lose  his  right  to  recover  for  breach 
of  the  covenant  for  seisin  by  conveying  his  right  and  title  to  the  land  to  a 
third  person.  Cornell  v.  Jackson,  3  Gush.  (Mass.)  506.  A  covenant  that  the 
land  conveyed  contains  a  certain  number  of  acres  is  equivalent  to  a  covenant 
of  seisin,  is  broken  as  soon  as  made  if  there  be  a  deficiency  in  the  acreage, 
and  the  right  of  action  does  not  pass  to  an  assignee.  Salmon  v.  Vallejo, 
41  Cal.  481. 

It  is  worthy  of  note  that  while  the  early  New  York  decisions  declare  that 
the  benefit  of  a  covenant  of  seisin  does  not  pass  to  a  subsequent  grantee  or 
assignee  by  virtue  of  the  covenantee's  conveyance,  they  sustain  a  separate 
formal  assignment  of  the  benefit  of  that  covenant,  executed  by  the  covenantee 
to  secure  his  grantee  against  loss  from  an  apprehended  failure  of  the  title. 
See  Raymond  v.  Squire,  11  Johns.  (N.  Y.)  47.  It  is  not  easy  to  understand 
why  the  express  and  formal  assignment  should  be  upheld,  and  the  incidental 
or  implied  assignment  declared  invalid,  since  in  either  case  it  is  a  chose  in 
action  that  is  assigned,  and  the  one  is  as  much  within  the  rule  prohibiting 
the  assignment  of  rights  in  action  as  the  other.  In  Kenny  v.  Norton,  10 
Heisk.  (Tenn.)  385,  the  court  declined  to  depart  from  the  rule  that  the 
covenant  of  seisin  does  not  run  with  the  land,  which  it  conceives  to  be  estab- 
lished by  the  weight  of  American  authority,  and  assigns,  as  a  reason,  that 
the  covenant  of  warranty,  amply  sufficient  under  all  circumstances  for  the 
protection  of  the  assignee,  is  invariably  inserted  in  all  conveyances  in  that 
State,  t-x.i-pt  those  in  which  the  grantor  merely  quit  claims  such  right  or 
intcie.-t  a-<  he  may  have  in  the  land,  and  the  further  reason  that  the  assignee 
is  protected  by  a  clmrt  Statute  of  Limitations  (seven  years)  against  the 
demands  of  the  adverse  claimant. 

lti;r,,t  -,iv,«.    Bryant  v.   Mother,  96  Neb.  555;   148  N.  W.  329;   Gulf  Coal 

\.   Mii-grove.    10.-,  Ala.  219.  70  So.  179;   Pinckard  v.  Mortgage  Co.,   143 

Ala.  571;   39  So.  350;   Prestwood  v.    M,(iowan,   128  Ala.  267;   29  So.  386; 

.;...  St.   I:.-,,.    i::i;:    Bull  v.  Beiseker,  16  N.  D.  290;    113  N.  W.  870;    14 

I.    I:.  A.   (X.  S.)  514;  Kanu-H  v.  Armstrong.  142  X.  C.  .Vn;:    in;  V  C.   1.  .v» 

3,   I      I-...-.    U'.  Am.  St.  Rep.  430;   Merch.  Nat.  Bank  v.  Otero,  24  N*.  M.  59S; 

175  Pac.   781;   Thompson   v.    Richmond,    1(12    Me.   :i:',.V.    lit    All.   lit'.i;    Simon. 1- 

v.    Diamond    Mat,!.    (  ,,.,    I.V.I    Mich.   24 1  ;    12:5   X.   W.    1132. 

**See  the  cases  cited  in  tin-  la*t  note.  Sec.  also.  Mender  v.  Kromberger,  4 
Dall.  (Pa.)  438;  Stewart  v.  Wot.  14  Pa.  336.  Webber  v.  Webber,  6  Or. 


OF    THE    COVENANT    FOK    SEISIN.  283 

§  112.  Contrary  rule.  Doctrine  of  "continuing  breach." 
But  while  the  rule  that  the  covenant  of  seisin  does  not  run  with 
the  land,  obtains,  perhaps,  in  most  of  the  States,  a  contrary  posi- 
tion has  been  taken  in  others,  and  maintained  with  much  force.51 

(Me.)  127.  Jones  v.  Warner,  81  111.  343.  McCarty  v.  Leggett,  3  Hill 
(X.  Y.),  134.  Wilson  v.  Forbes,  2  Dev.  (X.  C.)  32.  Innes  v.  Agnew,  1  Ohio, 
389.  Allen  v.  Allen,  (Minn.)  51  X.  W.  Rep.  473. 

51Kingdon  v.  Xottle,  1  Maule  &  S.  355;  S.  C.,  4  Maule  &  S.  53.  This  case 
was  decided  in  the  early  part  of  the  present  century,  and  has  been  cited 
and  followed  in  many  of  the  American  cases  holding  that  the  covenant  of 
seisin  runs  with  the  land.  The  case  establishes  the  proposition  that  want 
of  title  in  the  covenantor  is  a  continuing  breach,  not  completed  until  actual 
damage  has  been  suffered  by  the  covenantee  or  his  grantee.  The  decision  has 
been  criticised  by  Chancellor  KENT  as  "too  refined  to  be  sound"  (4  Kent. 
Com.  472),  and  questioned  in  Spoor  v.  Green,  L.  R.,  9  Exch.  99.  See  Rawle 
Covts.  §  208.  See  cases  cited  to  proposition  that  covenant  against  incum- 
brances  runs  with  land,  post,  §  128.  Mecklem  v.  Blake,  22  Wis.  495;  Eaton 
v.  Lyman,  33  Wis.  34;  S.  C.,  dissenting  opinion  of  DIXON,  C.  J.,  30  Wis.  41, 
46.  Collier  v.  Gamble,  10  Mo.  467;  Dickson  v.  Desire,  23  Mo.  162,  overrul- 
ing Chauvin  v.  Wagner,  18  Mo.  531;  Lawless  v.  Collier,  19  Mo.  480;  Mag- 
wire  v.  Riggin,  44  Mo.  512;  75  Am.  Dec.  121;  Walker  v.  Deaver,  5  Mo.  App. 
139;  Hall  v.  Scott  Co.,  2  McCrary  (U.  S.),  356;  Jones  v.  Cohitsett,  79  Mo. 
188;  Allen  v.  Kennedy,  91  Mo.  324;  2  S.  W.  Rep.  142.  Langenburg  v. 
Dry  Goods  Co.,  74  Mo.  App.  12.  Bacchus  v.  McCoy,  3  Ohio,  211 ;  17  Am.  Dec. 
585;  Foote  v.  Burnet,  10  Ohio,  331;  36  Am.  Dec.  90;  Devore  v.  Sunderland, 
17  Ohio,  52;  49  Am.  Dec.  442;  Great  Western  Stock  Co.  v.  Saas,  24  Ohio  St. 
542.  Scofield  v.  Iowa  Homstead  Co.,  32  Iowa,  317;  7  Am.  Dec.  197.  This  is 
the  leading  Iowa  case.  It  contains  an  able  review  of  authorities  bearing  upon 
the  question  of  the  assignability  of  the  covenant  of  seisin,  and  has  been  fre- 
quently cited  by  the  courts  in  other  states.  Knadler  v.  Sharp,  36  lo.  232 ; 
Boon  v.  McHenry,  55  lo.  202;  7  N.  W.  Rep.  503.  Martin  v.  Baker,  5  Ind. 
393 ;  leading  cases ;  Coleman  v.  Lyman,  42  Ind.  289,  distinguishing  Burnham 
v.  Lasselle,  35  Ind.  425;  Wright  v.  Nipple,  92  Ind.  313;  Worley  v.  Hinenian, 
(Ind.)  33  X.  E.  Rep.  261.  The  remark  in  Rawle  Covt.  (5th  ed.)  p.  264, 
n.,  that  in  Indiana  the  court  has  repudiated  the  contract  of  a  "  continuing 
breach  "  of  the  covenant  of  seisin,  must  be  limited  in  its  application  to  cases 
in  which  no  possession  passed  to  the  covenantee  Beyond  that  the  cases  there 
cited  do  not  go.  See,  also,  p.  314  of  the  samt  work,  where  it  is  said  that  the 
cases  in  that  State  maintain  the  doctrine  of  a  continuing  breach  down  to  the 
present  day.  Cole  v.  Kimball,  52  Vt.  639.  McCrady  v.  Brisbane,  1  Xott  & 
McC.  (S.  Car.)  104;  9  Am.  Dec.  676.  Mecklem  v.  Blake,  22  Wis.  495;  82 
Am.  Dec.  707.  The  doctrine  of  the  English  courts,  and  its  American  ad- 
herents, in  respect  to  the  assignability  of  the  covenant  of  seisin,  was  suc- 
cinctly stated  in  this  case  as  follows:  "These  courts  hold  that  where 
the  covenantor  is  in  possession  claiming  title,  and  delivers  the  possession  lo 
the  covenantee,  the  covenant  of  seisin  is  not  a  mere  present  engagement 
made  for  the  sole  benefit  of  a  covenantee,  but  that  it  is  a  covenant  of 


284  MARKETABLE    TITLE    TO    REAL    ESTATE. 

They  hold  that  the  covenant  is  not  completely  broken,  until  the 
want  of  title  in  the  covenantor  has  resulted  in  a  loss  of  the  prem- 
ises, or  actual  damage  suffered  by  the  covenantee,  or  those  deriv- 
ing title  from  him ;  that  the  covenant  is  prospective  in  its  nature, 
and  intended  as  a  security  for  the  title,  or  an  indemnity  against 
loss,  attaching  to  and  running  with  the  land  for  the  benefit  of 
such  person  as  shall  be  the  owner  thereof  at  the  time  the  loss  is 
sustained.52  The  cases  which  decide  that  a  covenant  of  seisin  is 
in  the  nature  of  a  security  for  the  title  attaching  to  and  running 

indemnity  entered  into  in  respect  of  the  land  conveyed,  and  intended  for  the 
security  of  all  subsequent  grantees,  until  the  covenant  is  finally  and  com- 
pletely broken,  and  they  consequently  hold  that  no  such  right  of  action 
accrues  to  the  covenantee  on  the  mere  nominal  breach,  which  always  happens 
the  moment  the  covenant  is  executed,  as  is  sufficient  to  merge  or  arrest  the 
covenant  in  the  hands  of  the  eovenantee,  or  to  deprive  it  of  the  capacity  of 
running  with  the  land  for  the  benefit  of  the  person  holding  under  the  deed, 
when  an  eviction  takes  place  or  other  real  injury  is  actually  sustained.  The 
possession  of  the  land  or  seisin  in  fact  under  the  deed,  by  the  covenantee  or 
th<>«e  claiming  through  him,  is  considered  such  an  estate  as  carries  the 
covenant  along  with  it."  In  Catlin  v.  Hurlburt,  3  Vt.  403,  it  was  held  that 
a  covenantee.  who  had  subsequently  conveyed  the  premises,  could  recover  on 
a  covenant  of  seisin,  but  should  not  have  execution,  until  he  had  lodged  with 
the  clerk  of  the  court  a  release  from  his  grantee  of  all  right  of  action  on  a 
covenant  of  tcarranty  contained  in  the  original  conveyance  from- the  plaintiff's 
grantor. 

Recent  Cases.  Sturgis  v.  Slocum,  140  Iowa  25,  116  N.  W.  128;  Knapp  v. 
Foley,  140  Minn.  423;  108  X.  W.  183;  Jones  v.  Hazeltine,  124  Mo.  App.  674; 
102  S.  W.  40;  Falk  v.  Organ,  160  Mo.  App.  218;  141  S.  W.  1;  Talbert  v. 
Grist.  198  Mo.  App.  492;  201  S.  \V.  906;  Coleman  v.  Lucksinger,  224  Mo.  1; 
123  S.  \V.  441,  26  L.  R.  A.  (N.  S.)  934. 

"Kimball  v.  Bryant,  25  Minn.  4f>f>,  the  court,  by  GILFILLAN.  C.  J.,  saying: 
"The  covenant  is  taken  for  the  protection  and  assurance  of  the  title  which 
the  grantor  assumes  to  pass  by  his  deed  to  the  covenantee,  and  where  the 
eovenanteo  assumes  to -pass  that  title  to  another,  it  is  fair  to  suppose  that 
he  intends  to  piwH  with  it,  for  the  protection  of  his  grantee,  every  assurance 
of  it  that  he  has,  whether  resting  in  right  of  action  or  unbroken  covenant, 
»o  that  if  before  enforcing  his  remedy  for  breach  of  the  covenant,  the 
covenantee  execute  a  conveyance  of  the  land,  unless  there  be  something  to 
show  a  contrary  intention,  it  may  IK*,  presumed  that  he  intends  to  confer 
on  his  grantee  the  benefit  of  the  covenant,  so  far  as  necessary  for  his  pro- 
tevtion,  that  i*,  that  he  intends  to  pass  all  his  right  to  sue  for  the  breach, 
no  far  as  the  grantee  sustains  injury  by  reason  of  it."  In  Lowrey  v.  Tilleny, 
.*M  Minn.  5(»0,  it  was  held  that  the  right  of  action  for  breach  of  the  covenant, 
if  not  assigned  by  a  conveyance  of  the  land,  passed  to  the  personal  repre- 
sentative, and  not  the  heir. 


OF    THE    COVENANT    FOE    SEISIN.  285 

with  the  land  for  the  benefit  of  a  grantee  of  the  covenantee  would 
seem  to  establish  the  better  rule,  inasmuch  as  it  adds  to  the 
security  of  purchasers,  and  tends  to  facilitate  the  alienation  of 
real  property.  The  opposite  conclusion  is  founded  upon  the  old 
rule  that  a  chose  in  action  is  not  assignable,  a  rule  which  has 
long  since  yielded  to  the  exigencies  of  a  commercial  age,  and 
exists  no  longer,  it  is  apprehended,  in  any  of  the  American 
States.  The  doctrine  that  a  covenant  of  seisin  does  not  run  with 
the  land  seems  to  be  supported  chiefly  by  arguments  of  a  subtle 
and  technical  character,  and  the  rule  itself  seems  not  to  subserve 
any  just  and  desirable  end;  whereas  that  construction  which 
gives  to  the  actual  sufferer  the  benefit  of  the  covenant  com- 
mends itself  to  the  mind  as  both  equitable  and  expedient.53 
Besides,  the  enforcement  of  such  a  rule  practically  destroys  the 
usefulness  of  the  covenant.  For  so  long  as  the  covenantee  has 
suffered  no  actual  damage  from  the  breach,  he  can  recover  no 
more  than  nominal  damages;  and  after  the  land  has  passed  into 
the  hands  of  a  remote  grantee  who  is  evicted,  the  right  of  action 
remaining  in  the  covenantee  will,  most  probably,  have  become 
barred  by  the  Statute  of  Limitations,  usually  a  short  period  in  most 
of  the  American  States.  And  if  not  barred  the  covenantee,  hav- 
ing received  full  value  for  the  land  without  reference  to  any  defect 
of  title,  would,  unless  he  conveyed  with  warranty,  have  sustained 
no  actual  damage  himself  from  the  breach,  and  consequently 
would  seem  entitled  to  nothing  more  than  nominal  damages,  In 
several  of  the  States  there  are  now  statutes  which  provide  in  sub- 
stance that  the  grantee  of  a  covenant  shall  have  the  benefit  of  a 
covenant  of  seisin  or  against  incumbrances  contained  in  the  con- 
veyance to  his  grantor.54  The  same  effect  has  been  given  to 

53  4  Kent  Com.  471,  the  learned  author  saying  that  it  is  to  be  regretted 
that  the  "  technical  scruple  "  that  a  chose  in  action  was  not  assignable  does 
necessarily  prevent  the  assignee  from  availing  himself  of  any  or  all  of  the 
covenants;  and  that  he  is  the  most  interested  and  the  most  fit  person  to 
claim  the  indemnity  secured  by  them,  for  the  compensation  belongs  to  him 
as  the  last  purchaser  and  the  first  sufferer. 

64  Code  Civ.  Proc.  N.  Y.  1876,  §  449.  Rev.  St.  Ohio,  p.  1034,  §  4993.  Rev. 
St.  Me.  1841,  c.  115,  §  16.  Rev.  St.  Colo.  1883,  p.  172.  Rev.  St.  Ga.  1882,  p. 
672.  Semble,  Code  Cal.  1876,  p.  473,  §  6462,  and  Code  Dak.  1883,  p.  917. 
Under  a  statute  permitting  the  assignment  of  all  choses  in  action,  the  benefit 


MAKKKTABLK    TITLE    TO    REAL    ESTATE. 

the  generally  prevalent  statutory  provision  that  all  actions  must 
be  maintained  in  the  name  of  the  real  party  in  interest.55  The 
right  of  the  remote  covenantee  to  sue  on  the  covenant  is  not 
affected  by  the  fact  that  one  of  the  intermediate  deeds  was  void.68 
The  inconvenience  of  the  American  rule  that  a  covenant  of  seisin 
does  not  run  with  the  land  is  greatly  reduced  in  practice  by  the 
fact  that  in  equity  the  assignment  of  a  chose  in  action  is  held  to  be 
valid,  and  that  a  court  of  law  recognizes  and  enforces  the  rights 
of  the  assignee  by  permitting  an  action  to  be  brought  for  his  use 
and  benefit  in  the  name  of  the  assignor,  the  original  covenantee.57 
For  this  purpose  a  conveyance  of  the  land  will  be  treated  as  an 
assignment  of  the  covenantee's  right  of  action  for  a  breach  of 
the  covenant.58  This  remedy,  however,  is  cumbrous  and  unwieldy 
and  has  been  rendered  obsolete  in  many  of  the  States  by.  a  pro- 
vision of  the  Code  that  every  action  shall  be  brought  in  the  name 
of  the  roal  party  in  interest.  But  for  the  foregoing  reasons,  and 

of  a  covenant  of  seisin  passes  to  a  subsequent  grantee  of  the  premises.  Seho- 
field  v.  Homestead.  Co.,  32  Iowa,  317;  7  Am.  Rep.  197.  Allen  v.  Little,  30 
Me.  175;  Stowell  v.  Bennett,  34  Me.  422.  But  the  statute  in  Maine  provides 
that  the  subsequent  grantee  must  first  execute  a  release  to  his  grantor  before 
he  ran  sue  on  the  covenant  of  the  original  grantor.  Prescott  v.  Hobbs,  30 
Me.  345;  Rev.  St.  Me.  1883,  p.  097.  See,  also,  Rev.  St.  Colo.  p.  172;  2  Lev. 
Rev.  Code  Dak.  p.  917;  Hitt.  Codes  Cal.  1876.  p.  743.  Code  Ga.  1882,  p.  672. 

•Code  Civil  Proo.  X.  Y.  §  449.  Andrew  v.  Appel,  22  Hun  (N.  Y.),  433, 
the  court  Baying:  "The  objection  existing  at  common  law  that  a  covenant 
or  <-li"-r  in  action  WIIM  not  assignable  has  been  obviated  by  modern*  legis- 
lation." The  assignee  is  the  real  party  in  interest.  The  transfer  of  the  land, 
the  principal  thing,  should  be  held,  to  imply  an  assignment  of  all  remedies 
under  1he  covenant  for  a  breach  thereof.  Ernst  v.  Parsons,  54  How.  Pr. 
(X.  Y.)  163;  Roberts  v.  Levy,  3  Abb.  Pr.  (N.  S.)  339. 

"Talbot  v.  Grist,  198  Mo.  App.  492;  201  S.  W.  906. 

"Clark  v.  Swift,  3  Met.  (Mass.)  395,  the'court  saying:  "As  to  the  rule 
in  question  it  interposes  a  formal  difficulty  only;  and  it  is  no  actual  obstruc- 
tion to  the  due  administration  of  justice.  The  assignment  of  a  chose  in 
action  is  valid  in  equity,  and  courts-  of  law  will  take  notice  of  equitable 
assignments  made  Inma  fide  and  for  valuable  consideration,  and  will  allow 
the  assignee  to  maintain  an  action  in  the  name  of  the  assignor."  Peters  v. 
Bowman,  98  I*.  S.  59.  Collier  v.  Gamble,  10  Mo.  467. 

"Rawle  Covt.  ft  226.  "The  transfer  of  the  land,  the  principal  thing, 
-In mid  be  held  to  imply  in  equity  an  assignment  of  all  remedies  under  the 
covenant  for  a  brearh  thereof.  Krnst  v.  Parsons,  54  How.  Pr.  (N".  Y.)  163; 
Robert*  v.  Levy,  3  Abb.  Pr.  (N.  S.)  339.  Newman  v.  Sevier,  134  111.  App. 


OF    THE    COVENANT    FOR    SEISIN.  287 

the  fact  that  a  covenant  of  warranty  is  almost  invariably  inserted 
in  conveyances  of  land,  it  is  provable  that  in  every  State  the 
assignee  would  long  since  have  been  by  statute  given  the  benefit 
of  the  covenant  of  seisin. 

§  113.  Possession  must  have  passed  with  the  covenantor's 
deed.  In  some  of  the  States  adopting  the  rule  that  a  covenant  of 
seisin  runs  with  the  land,  an  important  qualification  of  that  rule 
exists,  namely,  that  the  land  must  actually  pass,  and  possession  be 
taken  under  the  conveyance  of  the  covenantor  in  order  to  give  a 
subsequent  grantor  the  benefit  of  the  covenant.59  The  cases  which 
establish  this  position,  proceed  iipon  the  principle  that  the  cove- 
nant of  seisin  is  intended  as  an  indemnity  against  loss  of  the  land 
only,  and  that  if  no  land  passed  to  the  assignee  there  is  nothing 
to  create  a  privity  between  him  and  the  covenantor,  and  conse- 
quently that  he  has  no  right  of  action  on  the  covenant. 

§  114.  When  Statute  of  Limitations  begins  to  run.  In  those 
States  in  which  it  is  held  that  an  assignee  or  subsequent  grantee  is* 
not  entitled  to  the  benefit  of  a  covenant  of  seisin,  the  Statute  of 
Limitations  begins  to  run  against  an  action  for  a  breach  of  the 
covenant  from  the  time  the  covenant  was  made ;  that  is  when  the 
deed  containing  the  covenant  was  delivered.60  This  follows  neces- 

"Bottorf  v.  Smith,  7  Ind.  673;  Bethell  v.  Bethell,  54  Ind.  428;  23  Am. 
Rep.  650;  Craig  v.  Donovan,  63  Ind.  513;  McClure  v.  McClure,  65  Ind.  485. 
Dickson  v.  Desire,  23  Mo.  162,,  overruling  Chauvin  v.  Wagner,  18  Mo.  531. 
Shankle  v.  Ingram,  133  X.  C.  254;  45  S.  E.  578.  Backus  v.  McCoy,  3  Ohio, 
216;  17  Am.  Dec.  585;  Devore  v.  Sunderland,  17  Ohio,  60;  49  Am.  Dec.  442; 
Foote  v.  Burnet,  10  Ohio,  327;  36  Am.  Dec.  90.  This  case  contains  an 
elaborate  note  upon  the  law  of  covenants  of  title  to  real  estate.  In  Chambers 
v.  Smith,  23  Mo.  174,  it  was  said:  "If  there  be  a  total  defect  of  title,  and 
the  possession  have  not  gone  along  with  the  deed,  the  covenant  is  broken  as 
soon  as  it  is  entered  into,  and  cannoit  pass  to  an  assignee  upon  any  sub- 
sequent transfer  of  the  supposed  right  of  the  original  grantee.  In  such 
case  the  breach  is  final  and  complete ;  the  covenant  is  broken  immediately 
once  for  all,  and  the  party  recovers  all  the  damages  that  can  ever  result 
from  it.  If,  however,  the  possession  pass,  although  without  right  —  if.  an 
estate  in  fact  though  not  in  law,  be  transferred  by  the  deed,  and  the  grantee 
have  the  enjoyment  of  the  -property  according  to  the  terms  of  the  sale,  the 
covenant  runs  with  'the  land,  and  passes  from  party  to  party,  until  the  para- 
mount title  results  in  some  damage  to  the  actual  possession,  and  then  the 
right  of  action  upon  the  covenant  rests  in  the  party  upon  whom  the  loss 
falls." 

80  Jenkins  v.  Hopkins,  9  Pick.  (Mass.)   542.     Bratton  v.  Guy,  12  S.  Car.  42. 


288  MARKETABLE    TITLE    TO    REAL    ESTATE. 

sarily  from  the  rule  that  the  covenant  is  broken  as  soon  as  made  if 
the  covenantor  was  not  at  that  time  seised  of  such  an  estate  as  the 
covenant  describes.  Consequently  in  all  of  those  States  the  life 
of  the  covenant  is  measured  by  the  statute  of  limitations,  whether 
the  covenantoe  or  his  grantee  has  or  has  not  been  evicted  from  the 
premises.  But  in  those  States  in  which  the  covenant  of  seisin  is 
held  to  run  with  the  land,  the  statute  does  not  begin  to  run  until 
actual  damage  from  tho  breach  has  been  sustained.61 

§  115.  Conflict  of  laws.  At  common  law  the  covenantee  might 
maintain  an  action  at  law  against  the  covenantor  wherever  he 
found  him,  all  actions  dependent  upon  privity  of  contract  being 
deemed  transitory.62  But  an  assignee,  his  right  of  action  being 
dependent  upon  privity  of  estate,  could  maintain  an  action  on  the 
covenant  only  in  the  jurisdiction  in  which  the  land  lay,  and  the 
construction  of  that  covenant  was  governed  of  course  by  the  lex 
rei  sitce.**  One  consequence  of  these  rules  is  that  an  assignee  who 
takes  a  conveyance  in  a  State  in  which  he  would  be  entitled  to 
the  benefit  of  a  covenant  of  seisin  made  with  his  grantor,  the 
land  lying  in  a  State  in  which  the  contrary  rule  prevails,  would 
be  without  remedy  against  the  remote  covenantor,  in  case  he  should 
lose  the  land.  But  now,  by  force  of  statutes  abolishing  the  com- 
mon-law distinction  between  local  and  transitory  actions,  it  is 
held  in  several  of  the  States  that  the  right  of  an  assignee  to  sue 
upon  the  covenants  of  a  prior  grantor,  is  to  be  determined  by  the 
law  of  the  place  where  the  contract  was  made,  and  not  by  the 
lex  rei  tritcr.*4 

"White  v.  Stevens,  13  Mo.  App.  240.  Foshay  v.  Shafer,  116  Iowa  302;  89 
N.  W.  1100.  Falk  v.  Organ,  100  Mo.  App.  218;  141  S.  W.  1;  Brooks  v. 
Mohl,  104  Minn.  404;  110  N.  W.  931;  124  Am.  St.  R.  629;  17  L.  R.  A. 
(X.  S.)  1195.  But  if  no  possession  nor  right  passed  under  the  conveyance, 
the  statute  begins  to  run  at  once.  Sturgis  v.  Slocum,  140  Iowa  25,  116  N.  W. 
128. 

•Chit.  PI.  270;  Rawle  Cov.  (5th  ed.)  $  302.  Clarke  v.  Scudder,  0  Gray 
(Mann.).  122. 

•Worlf-y  v.  I  lineman,  (Ind.)  33  N.  E.  Rep,  260,  overruling  Fisher  v. 
Parry,  OS  Ind.  405.  where  the  subject  was  carefully  considered  and  the  rule 
announced  that  "whether  a  deed  executed  in  Indiana,  conveying  land  in 
another  State,  contains  a  covenant  of  seisin  that  runs  with  the  land,  is  to 
be  determined  hy  the  law  of  Indiana."  See,  also  to  same  effect.  Oliver  v. 
Love.  59  Mi--*.  320;  21  Am.  Law  Reg.  000. 

"Bethell  v.  Bethcll,  92  Ind.  318;  S.  C.,  64  Ind.  428;  23  Am.  Rep.  050. 


OF    THE    COVENANT    FOE    SEISIN.  289 

§  116.  MEASURE  OF  DAMAGES.  Upon  a  breach  of  the  cove- 
nant of  seisin,  which  results  in  the  loss  of  the  estate  to  the  cove- 
nantee,  the  measure  of  his  damages  is  the  value  of  the  estate  at 
the  time  of  the  conveyance  as  fixed  by  the  purchase  price,  in 
money  or  in  property,  agreed  upon  by  the  parties,65  with  interest 
thereon  for  such  time  as  the  covenantee  is  liable  to  the  real  owner 

W4  Kent  Com.  475;  Rawle  Covt.  §  158;  2  Washb.  Real  Prop.  728.  See, 
also,  cases  cited,  post,  §  164,  as  to  measure  of  damages  in  case  of  breach  of 
covenant  of  warranty.  Staats  v.  Ten  Eyck,  3  Caines  (N.  Y.),  Ill;  2  Am. 
Dec.  254.  This  is  a  leading  case,  but  is  confined  solely  to  the  question  of 
damages  where  ithere  has  been  an  increase  in  value  of  the  land  from  extrinsic 
causes.  There  was  no  claim  for  damages  to  the  extent  of  improvements  in 
addition  to  the  purchase  money.  Pitcher  v.  Livington,  4  Johns.  (N.  Y.)  1; 
4  Am.  Dec.  229;  Bennet  v.  Jenkins,  13  Johns.  (N.  Y.)  50.  Bender  v.  From- 
berger,  4  Dall.  (Pa.)  442.  This  is  the  leading  case  upon  the  proposition 
that  improvements  made  by  the  covenantee  cannot  be  considered  in  estimating 
his  damages  for  a  breach  of  the  covenant  of  seisin  resulting  in  eviction  or  loss 
of  the  estate.  Marston  v.  Hobbs,  2  Mass.  433;  3  Am.  Dec.  61;  Caswell  v. 
Wendell,  4  Mass.  108;  Simmer  v.  Williams,  8  Mass.  162,  222;  5  Am.  Dec.  83; 
Bynes  v.  Rich,  3  Gray  (Mass.),  518.  Stubbs  v.  Page,  2  Gr.  (Me.)  373; 
Wheeler  v.  Hatch,  12  Me.  389 ;  Blanchard  v.  Hoxie,  34  Me.  376 ;  Montgomery 
v.  Reed,  69  Me.  510.  Ela  v.  Card,  2  N.  H.  175;  9  Am.  Dec.  46;  Parker  v. 
Brown,  15  N.  H.  176;  Nutting  v.  Herbert,  35  N.  H.  120;  Willson  v.  Willson, 
25  N.  H.  229;  57  Anr.  Dec.  320.  Mitchell  v.  Hazen,  4  Conn.  495;  10  Am. 
Dec.  169;  Stirling  v.  Peet,  14  Conn.  245.  Catlin  v.  Hurlburt,  3  Vt.  403. 
Bacchus  v.  McCoy,  3  Ohio,  211;  17  Am.  Dec.  585.  Brandt  v.  Foster,  5  lo. 
295;  Cox  v.  Strode,  2  Bibb  (Ky.),  275;  5  Am.  Dec.  603;  Merc.  Trust  Co.  v. 
So.  Park  Res.  Co.,  (Ky.)  22  S.  W.  Rep.  314.  Dale  v.  Shively,  8  Kans.  190; 
Scott  v.  Morning,  23  Kans.  253.  Furman  v.  Elmore,  2  Nott  &  McC.  (S.  C.) 
189,  n.;  Pearson  v.  Davis,  McMull.  L.  (S.  C.)  37;  Henning  v.  Withers,  3 
Brev.  (S.  C.)  458;  6  Am.  Dec.  589.  Kincaid  v.  Brittain,  5  Sneed  (Tenn.), 
119.  Tapley  v.  Lebeaume,  1  Mo.  550;  Martin  v.  Long,  3  Mo.  391.  Egan  v. 
Martin,  71  Mo.  App.  60;  79  Mo.  App.  676.  Wilson  v.  Forbes,  2  Dev.  (N.  C.) 
30.  Overhiser  v.  McCollister,  10  Ind.  44.  Fr-azer  v.  Supervisors,  74  111.  291. 
Daggett  v.  Reas,  79  Wis.  60;  48  N.  W.  Rep.  127.  It  seems,  from  the  case 
of  Nichols  v.  Walter,  8  Mass.  243,  that  in  a  case  at  nisi  prius  in  New 
Hampshire  the  plaintiff  was  awarded  the  value  of  the  land  at  the  time  of 
eviction  as  the  measure  of  his  damages  for  a  breach  of  the  covenant  of  seisin. 

Recent  Cases.  Knapp  v.  Foley,  1-40 -Minn.  423;  168  N.  W.  183;  Seyfried  v. 
Knoblauch,  44  Colo.  «6;  96  Pac.  993;  Pridgen  v.  Long,  (N.  C.)  98  S.  E.  451; 
Norfolk  &  W.  R.  Co.  v.  Mtmdy,  110  Va.  422;  66  S.  E.  61.  Jeffords  v. 
Driesbach,  168  Mo.  App.  577;  153  S.  W.  274.  Brown  v.  Carpenter,  99  Wash. 
227;  169  Pac.  331.  The  covenantee  is  entitled  to  recover  ithe  full  considera- 
tion paid  without  tendering  a  reconveyance  to  the  covenantor.  Murphy  v. 

37 


1_'90  MAKKETABLK    TITLE    TO    RKAL    ESTATE. 

for  mesnc  profits,**  together  with  such  necessary  costs  and  expenses 
as  he  may  have  incurred  in  defending  the  title,8'  or  in  recovering 
possession  from  a  squatter.68  The  increased  value  of  the  land  at 
the  time  of  the  loss  of  the  bargain,  whether  resulting  from  a 
general  rise  in  the  value  of  lands  or  from  improvements  made  by 
the  covenantee,  cannot  be  considered  in  estimating  the  damages.69 

U.  S.  Title  G'ty  Co.,  172  X.  Y.  Supp.  243;  104  Misc.  Rep.  607.  See,  also, 
Parker  v.  Brown  15  X.  H.  176. 

*  1  Post,  g  172.  If  the  claim  of  the  owner  of  the  paramount  title  against 
the  covenantee  for  mesne  profits  be  barred  by  the  statute  uf  limitations,  the 
covenantor  will  be  entitled  to  an  allowance  for  such  profits.  Mather  v. 
Stokely,  236  Fed.  124;  149  C.  C.  A.  334. 

"Post,  §  173.  Hilliker  v.  Rueger,  151  X.  Y.  Supp.  234;  165  App.  Div. 
189.  But  he  is  not  entitled  to  costs  and  expenses  incurred  by  him  in  a 
proceeding  to  acquire  an  outstanding  interest  in  the  premises.  Roake  v. 
Sullivan,  125  X.  Y.  Supp.  835.  The  damages  include  the  expense  of  removing 
an  encroachment  of  the  property  conveyed  on  the  lot  of  an  adjoining  owner. 
Fehlhaber  v.  Fehlhaber,  140  X.  Y.  Supp.  973;  80  Misc.  Rep.  149. 

•Lasswell  L.  A  I.  Co.  v.  Langdon,  (Mo.  App.)  204  S.  W.  812. 

•Pitcher  v.  Livingston,  4  Johns.  (X.  Y.)  7;  4  Am.  Dec.  229,  where  it  was 
said  by  VAX  XESS,  J. :  "One,  and  perhaps  the  principal  reason  why  the 
increased  value  of  the  land  itself  cannot  be  recovered,  is  because  the  covenant 
cannot  be  construed  to  extend  to  anything  beyond  the  subject-matter  of  it, 
that  is,  the  land,  and  not  the  increased  value  of  it  subsequently  arising  from 
causes  not  existing  when  the  covenant  was  entered  into.  For  the  same  reason 
the  covenantor  ought  not  to  recover  for  the  improvements,  for  these  are  no 
more  the  subject-matter  of  the  contract  between  the  parties  than  the  increased 
value  of  the  land."  And  by  KENT,  C.  J. :  "Improvements  made  upon  the 
land  were  never  the  subject-matter  of  the  contract  of  sale  any  more  than 
the  gradual  increase  or  diminution  in  value.  The  subject  of  the  contract  was 
the  land  as  it  existed  and  what  it  was  worth  when  the  contract  was  made." 
In  Bender  v.  Fromberger,  4  Dall.  (Pa.)  436,  the  question  was  considered  with 
learning  and  research  and  an  elaborate  opinion  was  delivered,  settling  the 
rule  as  stated  in  the  text.  Among  other  reasons  for  the  rule,  given  by 
Tn.«;  H  MAN.  C.  J.,  were  the«e:  "The  title  of  lands  rest  as  much  within  the 
knowledge  of  the  purchaser  an  the  seller;  it  depends  upon  writings  which  both 
parties  have  an  equal  opportunity  of  examining.  If  the  seller  make  use  of 
fraud,  concealment  or  artifice  to  mislead  the  purchaser  in  examining  the 
title,  the  case  is  different ;  he  will  then  be  answerable  for  all  losses  which 
may  occur."  These,  with  Slants  v.  Ten  Eyck,  supra,  are  the  leading  cases 
upon  the  measure  of  damages  for  a  breach  of  the  covenant  of  seisin  where  the 
rovenantee  1m*  lost  the  etrtate,  and  they  have  been  followed  in  every  State  in 
which  the  question  has  arisen. 


OF    THE    COVENANT    FOR    SEISIN.  291 

If  the  covenantee  buys  in  the  outstanding  title,  he  can  recover  on 
the  covenant  no  more  than  was  expended  by  him  for  that  purpose.70 

The  foregoing  rules,  it  is  believed,  prevail  in  every  State  of 
the  Union,71  except  where  the  covenantor  was  guilty  of  fraud  in 
misrepresenting  his  title  to  the  covenantee.72  The  true  considera- 
tion of  the  conveyance  may  be  shown  by  parol  evidence,  and  the 
deed  may  be  contradicted  in  that  respect.73  •  If  the  consideration 
be  not  stated,  and  cannot  be  ascertained,  the  value  of  the  land  at 
the  time  of  the  conveyance  will  be  the  measure  of  damages.74 

The  covenant  of  seisin  is  broken  as  soon  as  made,  and  the 
covenantee's  right  of  action  therein  complete,  if  the  covenantor 
have  not,  at  the  time  of  the  covenant,  the  title  therein  described.75 
It  is  obvious,  however,  that  if  the  covenantee  remain  in  the  undis- 
turbed enjoyment  and  possession  of  the  estate  he  has  suffered  no 
damage  from  the  breach.  Possibly  he  may  never  be  disturbed  in 
the  possession,  for  the  real  owner  may  never  assert  his  rights,  or 
they  may  become  barred  by  the  statute  of  limitations.76  Accord- 

70  4  Post,   §    168,     Eames  v.  Armstrong,   146  N".   C.   1 ;   59  S.  E.   165;    125 
Am.  St.  Rep.  436.     If  he  gets  in  the  outstanding  title  without  expense,  he 
is  entitled  only  to  nominal  damages.     Werner  v.  Wheeler,  127  N.  Y.  Supp. 
158;   142  App.  Div.  358. 

71  The  author  has  met  with  but  one  instance  in  which  a  different  rule  was 
applied,  and  that  is  a  nisi  prius  decision  of  a  New  Hampshire  court,  referred 
to  in  the  case  of  Nichols  v.  Walter,  8  M'ass.  243.    In  the  last-mentioned  case, 
however,  the  rule  was  enforced  under  circumstances  involving  much  hardship. 
It  appeared  that  the  plaintiff  purchased  the  property  for  $18.67  and  took  a 
conveyance  from  the  defendant  with  covenant  of  seisin.     He  then  sold  and 
conveyed  the  premises  with  covenants  of  seisin  and  good  right  to  convey   (not 
warranty,  as  stated  in  Rawle  Covt.  [5th  ed.]  p.  224,  n.)   for  a  consideration 
of  $113.33.     His  grantee,  being  evicted,   recovered   against  him  as  damages 
for  breach  of  the  covenant  of  seisin,  $555.49,  the  value  of  the  property  at 
the  time   of   eviction ;    but  plaintiff,   in  his   action  on  the   original  covenant 
of  seisin,  was  adjudged  to  be  entitled  only  to  the  consideration  paid  by  him 
to  the  defendant,  $18.67,  upon  the  ground  that  the  case  must  be  governed 
by  the  Massachusetts  rule  of  damages  for  a  breach  of  that  covenant. 

"Pridgen  v.  Long,   (N.  C.)    98  S.  E.  451. 

"Post,  §  167. 

74  Smith  v.  Strong,  14  Pick.  (Mass.)  128;  Bynes  v.  Rich.  3  Gray  ('Mass.) 
518. 

"Ante,  §  109. 

"'*  If  the  covenantee's  title  be  perfected  by  the  Statute  of  Limitations  he 
can  recover  only  nominal  damages  for  a  breach  of  the  covenant  of  seisin. 
Wilson  v.  Forbes,  2  Dev.  (N.  C.)  30. 


292  MARKETABLE    TITLE    TO    REAL    ESTATE. 

ingly,  the  rule  has  been  established  by  numerous  decisions  that  the 
eovenantee  can  recover  no  more  than  nominal  damages  for  a  breach 
of  the  covenant  of  seisin,  so  long  as  he  remains  in  the  undisturbed 
possession  of  the  estate.77  'But  if  the  premises  are  in  the  possession 
of  an  adverse  claimant  at  the  time  of  the  grant,  the  eovenantee 
may  recover  substantial  damages,  not  exceeding  the  purchase 
money  and  interest.78  Such  an  adverse  possession  amounts  also 
to  a  constructive  eviction  and  operates  a  breach  of  a  covenant 
of  warranty.79  If,  before  suit  is  brought  by  the  eovenantee  for 
a  breach  of  the  covenant,  the  defendant  gets  in  the  outstanding 
title,  the  plaintiff  can  recover  only  nominal  damages,  for  the  title 

'Baxter  v.  Bradbury.  20  Me.  260:  37  Am.  Dec.  49.  Sable  v.  Brockmeier, 
45  Minn.  248;  47  X.  W..Rep.  794;  Ogden  v.  Ball,  38  Minn.  237;  36  N.  W. 
Rep.  344.  Garfii'ld  v.  Williams,  2  Vt.  328.  Hartford  Ore.  Co.  v.  Miller,  41 
Conn.  133.  Nosier  v.  Hunt,  18  lo.  212;  Boon  v.  McHenry,  55  lo.  202;  7 
X.  \V.  Rep.  503.  Collier  v.  Gamble,  10  Mo.  467,  472;  Bircher  v.  Watkins, 
13  Mo.  521;  Cockrell  v.  Proctor,  65  Mo.  41;  Holla. lay  v.  Menifee,  30  Mo. 
App.  207.  Egan  v.  Martin,  71  Mo.  App.  60;  79  Mo.  App.  676.  Metz  T. 
McAvoy  Brewing  Co.,  98  111.  App.  584;  Building  Co.  v.  Fray,  9fi  Va.  559; 
32  S.  E.  5*.  Small  v.  Reeves,  14  Ind.  164;  Hacker  v.  Blake,  17  Ind.  97; 
tacey  v.  Manna n.  37  Ind.  108;  Hannah  v.  Shields,  34  Ind.  272;  Stevens  v. 
Evans,  30  Ind.  39;  McClerkin  v.  Sutton,  29  Ind.  407;  Van  Xe«t  v.  Kellum. 
15  Ind.  264;  Jordan  v.  Bluckmore.  20  Ind.  419.  O'Meara  v.  McDaniel,  49 
Kans.  6Sf>;  31  Pac.  Rep.  303,  citing  Hammerslough  v.  Hackett,  48  Kans.  700; 
29  Pac.  Rep.  1079:  Danforth  v.  Smith,  41  Kans.  146;  21  Pac.  Rep.  168. 
(But  see  Bolinger  v.  Brake,  4  Kans.  App.  180;  45  Pac.  950.)  Fehlhaber  v. 
Ffhlhaber,  140  X.  Y.  Supp.  973;  80  Misc.  Rep.  149;  Hammerstadt  v.  Bakeley, 
182  Iowa,  1356;  1WJ  X.  \V.  729.  Murphy  v.  U.  S.  Title  &  Gty.  Co.,  172 
X.  Y.  Supp.  243;  104  Misc.  Rep.  607.  In  the  early  case  of  Harris  v.  Xewell, 
8  Mass.  622.  it  was  held  that  if  the  eovenantee  had  been  -threatened  with 
eviction,  and  if  it  appear  that  he  must  inevitably  lose  the  estate,  he  may 
recover  4he  consideration  money  as  damages  for  breach  of  the  covenant  of 
-«-i-iii.  and  that  in  such  a  case  he  could  not  be  required  to  lie  by  until  he  was 
actually  evicted;  the  covenantor  might  in  the  m«anwhih>  become  insolvent, 
and  the  remedy  on  the  covenant  l»e  lost.  See  also,  .Mather  v.  Stokely,  21 S  Fed. 
764;  134  C.  C.  A.  442;  Hilliker  v.  Rueger,  228  N.  Y.  11;  126  N.  E.  266.  It 
-••••m-  that  the  purchaser  is  permitted,  in  Michigan,  to  recover  the  purchase 
money  paid,  Jn  ca*e  of  a  breach  of  the  covenant  of  seisin,  though  he  has  not 
been  .li-turU-.l  in  the  possession  of  the  premises.  Parkinson  v.  Woulds,  125 
Mich.  325;  84  X.  W.  292. 

"  Adkinn  v.  Tomlinson.  121  Mo.  487.  This  rule,  of  course,  would  not  obtain 
in  tli"-«-  Slates  in  which  a  -al.  and  conveyance  by  the  vendor  when  out  of 
po*M4>M>*ion  in  deemed  champertous. 

'•Pout.  |  146. 


OF    THE    COVENANT    FOE    SEISIN.  293 

so  acquired  enures  to  the  benefit  of  the  plaintiff.  If  the  para- 
mount title  should  be  gotten  in  after  suit  had  been  commenced,  a 
different  rule  would  probably  apply.80 

If  the  covenantee  sues  and  recovers  nominal  damages  for  breach 
of  the  covenant  of  seisin,  the  judgment  will  be  no  bar  to  an  action 
for  breach  of  the  covenant  of  warranty  if  he  should  be  afterwards 
evicted  by  the  person  having  the  better  title.81 

In  Missouri,  a  purchaser,  who  has  taken  a  conveyance  with  a 
covenant  of  seisin,  is  permitted,  upon  discovery  that  the  title  is 
bad,  to  buy  in  the  rights  of  all  adverse  claimants,  and  thus  to 
entitle  himself  to  recover  substantial  damages  for  the  breach  of 
the  covenant  to  the  extent  of  the  amount  so  paid,  with  interest, 
provided  it  do  not  exceed  the  consideration  money  and  interest.82 
This  rule  has  been  criticised  upon  the  ground  that  it  confounds 
all  distinctions  between  the  covenant  of  seisin  and  the  covenant  of 
warranty.  It  is  difficult  to  perceive  any  inconvenience  or  injustice 
that  could  result  from  the  rule,  provided  it  be  restricted  to  cases 
in  which  the  adverse  title  has  been  hostilely  asserted. 

If  the  breach  of  the  covenant  of  seisin  consist  in  the  want  of  the 
entire  quantity  of  estate  or  interest  purported  to  be  conveyed,  as  if 
the  interest  turns  out  to  be  a  life  estate  instead  of  a  fee,  the 
covenantee  cannot  practically  rescind  the  contract  by  recovering 
the  entire  purchase  money  as  damages;  he  must  keep  the  life 
estate.  In  other  words,  the  measure  of  his  damages  will  be  the 
difference  between  the  consideration  money  and  the  value  of  the 
life  estate.83  If  it  appear  that  title  to  a  part  of  the  land  has 

80Sayre  v.  Sheffield  Land  Co.,  (Ala.)  18  So.  Rep.  101.  As  to  the  right 
of  the  covenantor  to  require  the  covenantee  to  accept  such  title  in  lieu  of 
damages,  see,  post,  '  'Estoppel-/'  §  215. 

81Donnell  v.  Thompson,  10  Me.  170;  25  Am.  Dec.  216.  Ogden  v.  Ball,  40 
Minn.  94;  41  1ST.  W.  Rep.  453. 

81  Lawless  v.  CoHier,  19  Mo.  480;  Hall  v.  Bray,  51  Mo.  288;  Ward  v.  Ash- 
brook,  78  Mo.  517.  Schnelle  Lumber  Co.  v.  Barlow,  34  Fed-.  Rep.  853.  So 
also  in  North  Carolina.  Pridgen  v.  Long,  98  S.  E.  451  and  Oregon;  Cobb  v. 
Klosterman,  5&  Oreg.  211;  114  Pac.  96.  The  covenantee  is  entitled  to  recover 
the  necessary  expenses  incurred  by  him  in  a  proceeding  to  perfect  the  title, 
the  covenantor  having  refused  to  institute  such  proceeding  when  requested 
to  do  so.  Pineland  Mtge.  Co.  v.  Trust  Co.,  139  Mo.  App.  209;  122  S.  W. 
1133. 

83  Tanner  v.  Livingston,  12  Wend.  (N.  Y.)  83.  Pinkston  v.  Huie,  9  Ala. 
252,  259.  Post,  §  170. 


294  MAKKETA1JLK    TITLK    TO    KEAL    ESTATE. 

failed,  the  plaintiff  will  lx»  entitled  to  nominal  damages,  though 
there  l>e  no  evidence  as  to  the  value  of  such  part.84  Where  he 
is  entitled  to  substantial  damages  for  a  loss  of  part  of  the  premises, 
the  measure  thereof  will  be  such  part  of  the  whole  consideration 
paid  as  the  value  of  the  part  at  the  time  of  purchase,  to  which 
title  failed,  liears  to  the  whole  of  the  premises,85  unless  the  con- 
tract fixed  a  price  per  acre,  in  which  case  the  measure  of  damages 
is  the  contract  price  of  the  number  of  acres  lost.8* 

If,  In-fore  satisfaction  of  a  judgment  for  damages  resulting 
from  a  breach  of  the  covenant,  the  title  of  the  covenantee  is  per- 
fWtcd  by  the  running  of  the  statute  of  limitations,  a  suit  to 
enjoin  the  enforcement  of  the  judgment  may  be  maintained.87 

If  the  alleged  breach  of  the  covenant  of  seisin  consist  in  the 
want  of  title  to  minerals  under  the  soil,  it  is  competent  for  the 
covenantor  to  show,  in  mitigation  of  damages,  that  the  grantee 
purchased  with  knowledge  of  the  fact  that  there  had  been  a  pre- 
vious severance  of  the  title  in  respect  to  the  soil  and  the  minerals, 
and  that  the  consideration  paid  was  merely  for  the  land  without 
the  minerals.88 

The  burden  is  on  the  covenantee  to  prove  the  amount  of  damages 
sustained  by  him  from  the  breach.89 

§  117.  BURDEN  OF  PROOF  In  an  action  on  a  covenant  of 
seisin  the  burden  of  proof  has  generally  been  held  to  lie  with  the 
defendant,  the  grantor,  to  show  that  the  title  is  such  as  his  cove- 
nant requires:  *°  but  there  is  a  conflict  of  authority  upon  the  point, 

MLawle«H  v.  Evan*,  (Tex.)  14  S.  W.  Rep.  1019.  In  Hilliker  v.  RueRer, 
151  X.  Y.  Snpp.  234;  165  App.  Div.  180,  it  was  held  that  he  was  entitled  to 
Muhfttantial  damage*,  though  he  had  not  been  evicted  from  the  part  to  which 
title  had  failed. 

*  McLennan  v.  Prentice,  (Wis.)  55  N.  W.  Rep.  704.  Roake  v.  Sullivan, 
125  X.  Y.  Supp.  835;  Seyfried  v.  Knoblauch,  44  Colo.  86;  06  Pac.  993; 
Campbell  v.  Shaw.  170  X.  C.  186;  86  S.  E.  1035. 

"Conklin  v.  Hancock,  07  Ohio  St.  455;  66  N.  E.  518. 

"Mather  v.  Stokeley,  236  Fed.  124;   149  C.  C.  A.  334. 

"Lloyd  v.  Sanduaky,  203  111.  621;  68  N.  E.  154. 

"Mixon  v.  nurlenon,  (Ala.)  82  So.  98. 

"  Bradfhnwr'H  Caw,  9  Coke  R.  60.  Abbott  v.  Allen,  14  Johns.  (N.  Y.)  248; 
7  Am.  Dec.  554.  Bircher  v.  Watkin*.  13  Mo.  521;  Coekrell  v.  Proctor,  65 
Mo.  41.  Bcrktnaiin  v.  Henn.  17  Wit*.  412;  Eaton  v.  Lyman.  30  Wi«.  41; 
McClennan  v.  Prentice,  77  Win.  124;  45  N.  W.  Rep.  043.  SwafTord  v. 
Whipplc,  3  Or.  (lo.)  261;  54  Am.  Dec.  498;  Schoflcld  v.  Homestead  Co.,  32 


OF    THE    COVEXAXT    FOR    SEISIN.  295 

some  cases  holding  that  the  burden  is  on  the  plaintiff  to  show  that 
the  covenant  has  been  broken,  since  it  is  to  be  presumed  that  he 
has  knowledge  of  the  facts  constituting  the  breach  of  the  covenant, 
and  that  there  can  be  no  hardship  in  requiring  him  to  prove 
them.91  The  weight  of  authority  probably  is  that  the  burden  is 
on  the  defendant,  and  the  rule  results  from  a  strictly  technical 
adherence  to  that  other  rule,  that  the  plaintiff  may  allege  a  breach 
by  merely  negativing  the  words  of  the  covenant.92  When  the 

Iowa,  317;  7  Am.  Rep.  197;  Blackshire  v.  Homestead  Co.,  39  Iowa,  624; 
Barker  v.  Kulm,  39  Iowa,  392.  Marston  v.  Hobbs,  2  Mass.  433 ;  3  Am.  Dec. 
61.  The  reason  given  for  the  rule  thus  stated  is  that  the  grantor  is  presumed 
to  have  retained  the  evidences  of  his  title,  and,  consequently,  that  the  facts 
constituting  a  defect  in  his  title  must  lie  peculiarly  within  his  knowledge. 
1  Stark.  Ev.  418,  423;  Abbott  v.  Allen,  14  Johns.  (N.  Y.)  253;  7  Am.  Dec. 
554;  Swafford  v.  Whipple,  3  Gr.  (lo.)  265;  54  Am.  Dec.  498;  Wooley  v. 
Newcombe,  87  N.  Y.  805.  This  is  doubtless  true  of  the  English  practice 
where  the  grantor  has  conveyed  only  a  portion  of  his  estate,  but  in  America, 
where  a  general  system  of  registration  of  conveyances  and  incumbrances  and, 
generally,  of  all  documentary  matter  affecting  the  title  prevails,  there  would 
seem  to  be  no  reason  to  presume  that  the  grantor  is  better  informed  as  to 
the  state  of  the  title  than  the  grantee. 

"Eames  v.  Armstrong,  142  N.  C.  506;  55  S.  E.  405.  Ingalls  v.  Eaton,  25 
Mich.  32,  the  court  by  COOLEY,  J.,  saying:  "Where  parties  contract  con- 
cerning lands  on  the  assumption  that  one  of  them  is  the  owner,  it  is  a 
reasonable  presumption  that  they  have  first  satisfied  themselves  by  inquiry 
what  the  title  is;  and  if  a  defect  conies  to  their  knowledge  afterwards,  the 
party  complaining  of  it  should  point  it  out."  The  decision  was  also  rested 
largely  upon  a  statutory  provision  that  the  general  issue  is  a  denial  of  the 
plaintiff's  cause  of  action,  and  calls  upon  him  to  prove  it.  No  question  wa» 
raised  as  to  the  sufficiency  of  the  plaintiff's  assignment  of  the  breach,  which 
was  in  general  terms,  negativing  the  words  of  the  covenant.  The  court 
cited  as  sustaining  their  view  "Brown  v.  Bellows,  4  Pick.  (Mass.)  193; 
Snevilly  v.  Egle,  1  W.  &  S.  (Pa.)  480;  Martin  v.  Hammon,  8  Pa.  St.  270; 
Espy  v.  Anderson,  14  Pa.  St.  312;  Dwight  v.  Cutler,  3  Miss.  566;"  64  Am. 
Dec.  105.  See,  also,  Peck  v.  Houghtaling,  35  Mich.  132.  T/andt  v.  Mayor, 
(Colo.)  31  Pac.  Rep.  524.  Clapp  v.  Herdmann,  25  111.  App.  509.  In  Wooley 
v.  Newcombe,  87  N.  Y.  605,  it  was  held  that  under  the  Code  of  Civil 
Procedure  of  that  State,  providing  that  issue  might  be  joined  by  service  of 
an  answer  to  the  complaint,  dispensing  with  a  replication,  the  plaintiff,  in  an 
action  on  a  covenant  of  seisin,  assumed  the  burden  of  proving  the  breach 
alleged  by  him,  that  is,  that  the  defendant  was  not  seised  of  an  indefeasible 
estate  in  fee  simple. 

9aMecklem  v.  Blake,  16  Wis.  102;  83  Am.  Dec.  707.  It  has  been  held  that 
if  the  defendant  plead  that  he  has  not  broken  his  covenant,  the  plaintiff  by 
his  joinder  avers  that  he  has,  and  therefore  assumes  the  burden  of  proving 
that  allegation.  Montgomery  v.  Reed,  69  Me.  513;  Boothbay  v.  Hathaway, 


296  MARKETABLE    TITLE    TO    REAL    ESTATE. 

purchaser  obtains  an  injunction  against  the  collection  of  pur- 
chase money  due  by  him,  the  burden  is  on  him  to  show  that  the 
title  is  bad.98  So,  also,  in  an  action  for  the  purchase  money  in 
which  he  sets  up  the  defense  of  failure  of  title.94  So  long  as  the 
parties  are  allowed  to  arrive  at  an  issue  by  merely  affirming  on 
the  one  side  and  denying  on  the  other  the  words  of  the  covenant, 
it  is  difficult  to  perceive  upon  what  principle  the  burden  of  proof 
can  be  adjusted,  other  than  that  which  casts  the  burden  on  him 
who  has  the  affirmative  of  the  issue.  No  difficulty  can  arise  in  fix- 
ing the  burden  of  proof  in  an  action  for  breach  of  the  covenant  for 
warranty,  for  the  plaintiff  must  allege  that  he  was  evicted,  and 
it  devolves  on  him  to  prove  that  fact ;  nor  in  an  action  for  breach 
of  the  covenant  against  incumbrances,  for  he  must  set  out  the 
incumbrance  constituting  the  breach  and  prove  its  existence.  But 
with  respect  to  an  action  for  breach  of  the  covenant  of  seisin,  it 
may  be  doubted  whether  an  equitable  disposition  of  the  burden 
of  proof  can  be  made  upon  the  mere  allegation  that  the  defendant 
was  or  was  not  seised  of  such  an  estate  as  his  covenant  describes. 
Defects  of  title  consist  in  the  existence  or  non-existence  of  par- 
ticular facts,  and  to  rule  arbitrarily  from  this  form  of  pleading 
that  the  burden  of  proof  was  upon  the  one  party  or  the  other 
wmild  be  in  some  cases  to  require  the  defendant,  and  in  others 
the  plaintiff,  to  prove  a  negative;'6  that  is,  the  non-existence  of 
a  particular  fart.  A  solution  of  the  difficulty  would  apparently 

20  Me.  251.  Bacon  v.  Lincoln,  4  Gush.  (Mass.)  212;  50  Am.  Dec.  765.  But 
aa  Biich  an  averment  is  no  more  in  effort  than  an  allegation  that  the  defend- 
ant WBH  not  seised  as  he  had  covenanted,  these  decisions  would  seem  to  fall 
within  the  ohservat  inn  of  Mr.  Oreenleaf  that  in  disposing  the  burden  nf 
proof  regard  must  be  hud  to  the  substance  and  effect  of  the  issue  rather 
than  to  the  form  of  it ;  for  in  many  cases  the  party,  by  making  a  slight  change 
in  his  pleading,  may  give  the  issue  a  negative  or  affirmative  form  at  his 
pleasure.  1  Greenl.  Kv.  (Redf.  ed.)  §  74. 

"Grantland  v.  Wight.  5  Munf.  (Va.)  205.    Lewis  v.  Bibb,  Port.   (Ala.)  84. 

"Stokoly  v.  Trout.  3  Watts  (Pa.),  163.  Sawyer  v.  Vaughan,  25  Mo.  337. 
Hreithaupt  v.  Thurmond,  3  Rich.  (S.  C.)  216.  Zerfing  v.  Seelig,  14  S.  Dak. 
W.  586. 

••Thus  if  the  burden  was  held  to  l»e  upon  the  defendant,  grantor,  lie  would, 
if  the  dl.jectinn  to  the  title  was  the  existence  of  a  prior  n.inrv.mre,  be 
required  to  prove,  negatively,  that  in>  ~u.li  <-i.nve\aiire  o\i-ted;  and  if  held 
to  l«-  ujKin  the  plaintiff,  grantee,  and  the  <•!.  jeet  ion  was  that  the  defendant's 
•  of  title  hy  de-went  eould  not  be  sustained,  the  burden  would  be  upon 
him  tn  -h«.w  that  the  defendant,  or  his  predecessor  in  title,  was  not  the  heir; 


OF    THE    COVENANT    FOB    SEISIN.  297 

be  reached  by  requiring  the  plaintiff  to  set  out  in  his  pleadings 
the  facts  constituting  the  breach  of  the  covenant,  so  that  the 
parties  might  arrive  at  a  specific  and  well-defined  issue  of  fact, 
in  respect  to  which  the  court  could  have  no  difficulty  in  adjust- 
ing the  burden  of  proof.96 

§  118.  PLEADING.  At  common  law,  the  plaintiff,  in  alleging  a 
breach  of  the  covenant  of  seisin,  merely  negatives  the  words  of  the 
covenant ;  it  is  not  necessary  that  he  shall  set  out  in  his  declara- 
tion the  facts  constituting  the  breach,97  nor  to  allege  an  eviction.98 
The  same  form  of  pleading  has  been  held  a  sufficient  compliance 
with  a  statutory  provision  that  the  plaintiff's  complaint  shall 
contain  a  statement  of  his  cause  of  action.99  The  defendant,  at 
common  law,  having  filed  a  plea  of  seisin  to  the  declaration, 
might,  it  seems,  require  the  plaintiff  to  set  forth  in  his  replication 

all  of  which  would  seem  to  be  in  direct  contravention  of  the  rule  that  the 
burden  of  proof  is  upon  him  who  has  substantially  the  affirmative  of  an 
issue.  These  observations  are  borne  out  by  the  case  of  Wilson  v.  Parshall, 
129  N.  Y.  223;  -29  N.  E.  Rep.  297.'  There  the  plaintiff  claimed  that  the  deed 
under  which  the  defendant  (grantor)  held  was  in  fact  a  mortgage  and  not  a 
conveyance  of  an  indefeasible  estate  in  fee  simple,  and  it  was  held  that  the 
burden  devolved  on  the  plaintiff  to  show  not  only  that  the  deed  was  in  fact 
a  mortgage,  but  .that  it  was  actually  intended  as  such. 

8"  This  seems  to  have  been  f easible  under  the  common-law  system  of  pro- 
cedure, by  means  of  the  replication  and  other  successive  pleadings  tending  to 
the  production  of  an  issue;  but  in  those  States  in  which  the  defendant  is 
allowed  to  join,  issue  by  service  of  an  answer  to  the  complaint  would  be 
impracticable,  unless  the  plaintiff  were  required  to  set  out  in  his  complaint 
the  facts  constituting  the  breach  of  covenant,  or  to  furnish  the  defendant 
with  such  a  statement  of  the  particulars  of  his  claim  as  would  enable  him 
to  frame  his  defense. 

97 Abbott  v.  Allen,  14  Johns.  (N.  Y.)  252;  7  Am.  Dec.  554;  Rickert  v. 
Snyder,  9  Wend.  (1ST.  Y.)  421.  Bacon  v.  Lincoln,  4  Cush.  (Mhss.)  212;  50 
Am.  Dec.  765.  Floom  v.  Beard,  8  Blackf.  (Ind.)  76;  Truster  v.  Snelson,  29 
Ind.  96.  Montgomery  v.  Reid,  69  Me.  513;  Blanchard  v.  Hoxie,  34  Me.  376. 
Bender  v.  Fromberger,  4  Dall.  (Pa.)  438.  Pringle  v.  Witten,  1  Bay  (S.  C.), 
254;  1  Am.  Dec.  612.  Bircher  v.  Watkins,  13  Mo.  523.  Socum  v.  Haun,  36 
Iowa,  138.  Koepke  v.  Winterfield,  116  Wis.  44;  92  N.  W.  437.  De  Jarnette  v. 
Dreyfus,  166  Ala.  138;  51  So.  932.  Faller  v.  Davis,  30  Okl.  56;  118  Pac.  382. 
An  allegation  also  that  defendant  warranted  the  title  may  be  disregarded  as 
surplusage.  Viet  v.  McCauslan,  142  N.  Y.  Supp.  281;  157  App.  Div.  335. 

98 Riddle  v.  Hudson,   (Okl.)    172  Pac.  921. 

"Wooley  v.  Newcombe,  87  N.  Y.  605.  The  intimation  contained  in  Rawle 
on  Covenants  for  Title  (5th  ed.),  §  64,  that  in  New  York  and  Michigan  it  is 
necessary  for  the  plaintiff  in  an  action  for  breach  of  covenant  of  seisin  to  set 

38 


298  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

the  particulars  of  the  breach.1  Thus,  it  seems  to  have  been 
ix>ssible  at  common  law  to  develop  by  the  pleadings  the  facts  con- 
ceived by  the  plaintiff  to  be  a  breach  of  the  covenant,  and  to  join 
issue  upon  the  existence  of  those  facts,  or,  the  facts  themselves 
being  admitted,  to  determine  on  demurrer  whether  they  were 
sufficient  for  the  purposes  alleged.  The  same  result,  it  appears, 
may  be  attained  under  the  code  system  of  civil  procedure  by 
requiring  the  plaintiff  to  set  out  the  particulars  of  his  claim  more 
fully  than  they  appear  in  his  complaint.2 

out  the  facts  constituting  the  breach  with  sufficient  particularity  to  enable  the 
defendant  to  farme  his  defense,  seems  to  be  scarely  sustained  by  the  cases 
cited.  In  the  first,  Wooley  v.  Newcombe,  87  N.  Y.  605,  it  was  expressly  held 
that  the  complaint  merely  negativing  the  words  of  the  covenant  was  sufficient. 
In  the  other  cases,  Ingalls  v.  Eaton,  25  Mich.  32,  and  Peck  v.  Houghtaling, 
35  Mich.  127,  the  declaration  was  in  precisely  the  same  form,  and  no  ques- 
tion was  raised  as  to  its  sufficiency,  the  court  holding  that  the  burden  of 
proving  facts  constituting  a  breach  of  the  covenant  devolved  on  the  plaintiff, 
without  adverting  to  any  question  of  pleading  in  the  cause.  But  whether 
such  a  rule  (requiring  the  plaintiff  to  state  the  particulars  of  the  breach) 
is  or  is  not  to  be  deduced  from  the  cases  cited,  it  will  scarely  be  denied 
that  it  would  tend  greatly  to  a  more  rapid  and  covenient  determination  of 
the  rights  of  the  parties.  As  was  said  in  Ingalls  v.  Eaton,  supra,  there  can 
lie  no  hardship  in  requiring  the  plaintiff  to  introduce,  in  the  first  place, 
evidence  of  the  defects  of  which  he  complaJns,  neither,  it  would  seem,  could 
there  be  any  hardship  in  requiring  him  to  set  out  the  defects  in  the  com- 
plaint, as  was  done  by  the  plaintiff  voluntarily  in  Sedgewick  v.  Hollenbcck. 
7  Johns.  (N.  Y.)  380,  when  the  common  law  system  of  pleading  prevailed  in 
the  State  of  New  York,  and  as  was  assumed  to  be  his  duty  in  Potter  v. 
Kitrhen,  5  B<mw.  (N.  Y.)  571,  under  a  provision  of  the  Code  that  the  com- 
plaint must  contain  a  statement  of  the  plaintiff's  cause  of  action. 

1  Marston  v.  Hobbx,  2  Mass.  433;  3  Am.  Dec.  61.  Wooley  v.  Newcombe, 
87  N.  Y.  605,  612,  where  it  is  said  that  if  the  common-law  system  of  pleading 
»till  prevailed  in  the  State  of  New  York,  the  plaintiff,  in  replying  to  the 
plea  of  seisin,  would  doubtless  be  required  to  state,  as  in  other  actions  on 
covenants,  the  particulars  of  the  breach,  and  thus  assume  the  affirmative. 
For  itiHtanceK  in  which  the  plaintiff  set  out  the  facts  constituting  the  breach, 
»ce  Kodgwick  v.  Hollenbeck,  7  Johns.  (N.  Y.)  380;  Kennedy  v.  Newman, 
1  s.imlf.  (N.  Y.  S.  C.)  187,  and  the  comments  on  that  case  in  Potter  v. 
Kitchen,  5  Bow.  (N.  Y.  S.  C.)  566. 

*  Wooley  v.  NVwcombe,  87  N.  Y.  605.  612.  the  court  say  ing:  "  The  allegations 
that  the  defendant  wait  not  the  true  owner,  and  was  not  wised  of  the  premises 
in  fee,  were  allegations  of  matters  of  fact.  It  was  not  necessary  to  the 
-ufli.  i.  n.  \  of  the  complaint  that  the  title  should  be  sot  out  in  detail.  If 
the  particular*  of  the  defects  complained  of  are  required  to  enable  the 
ili-iYriil.ini  to  defend,  they  must  be  obtained  in  some  of  the  modes  provided 
by  the  code," 


CHAPTER  XIII. 

COVENANT  AGAINST  INCUMBRANCES. 
FORM.     §   119. 
RESTRICTIONS  AND  EXCEPTIONS.     §    120. 

Parol  agreements.     §   121. 

Conveyance  "subject  to"  incumbrance.     §    121-a. 
WHAT  CONSTITUTES  BREACH.     §    122. 

Definition  of  incumbrance.     §    123. 

Pecuniary  charges  and  liens.     Effect  of  notice.     §    124. 

Outstanding  interest  less  than  a  fee.     §    125. 

Easements  or  physical  incumbrances.     §    126. 

Notice  of  easement  at  time  of  purchase.     §   127. 
ASSIGN  ABILITY  OF  THIS  COVENANT.     §    128. 
MEASURE  OF  DAMAGES. 

General  rules.     §   129. 

Where  covenantee  discharges  the  incumbrance.     §    130. 

Damages  cannot  exceed  purchase  money  and  interest.     §    131. 

Where  incumbrance  is  permanent.     §    132. 
STATUTE  OF  LIMITATIONS.    '§    132-a. 
PLEADING  AND  PROOF.     §    133. 

§  119.  FORM  AND  EFFECT.  The  covenant  against  incum- 
brances as  used  in  America  is  either  general,  namely,  "  that  the 
premises  are  free  from  incumbrances,"  *  or  special,  "  that  the 
premises  are  free  from  incum'brances  done,  suffered  or  committed 
by  "  the  grantor.2  In  England  this  covenant  is  usually  expressed 

1RaAvle  Covts.  for  Title  (5th  ed.),  f-  29,  n.  The  court  will  supply  mere 
clerical  omissions  in  the  covenant,  such  as  the  «word  "  himself  "  in  the  clause 
"  for  himself,  his  heirs,"  etc.  Judd  v.  Randall,  36  Minn.  12 ;  29  N.  W.  Rep. 
589;  Harsin  v.  Oman,  68  Wash.  "281,  123  Pac.  1;  Stanley  v.  Goodrich,  18  Wis. 
505;  Hilmert  v.  Christian,  29  Wis.  104.  Smith  v.  Lloyd,  29  Mich.  382.  Contra. 
Dun  v.  Dietrich,  3  N.  D.  3;  53  X.  W.  81.  Bowne  v.  Wolcott,  (N.  Dak.)  48 
X.  W.  Rep.  426,  citing  Rufner  v.  McConnell,  14  111.  168;  Thayer  v.  Palmer, 
86  111.  477,  and  saying  that  the  remedy  of  the  grantee*  is  in  equity  if  the 
omission  was  by  mistake.  A  covenant  to  warrant  and  defend  "  against  all 
persons  whomsoever,  and*  all  claims  whatsoever,"  is  a  covenant  against 
incumbrances  as  well  as  a  covenant  of  warranty.  Incumbrances  are  claims, 
and  a  covenant  against  all  "  claims  "  will  include  incumbrances.  Johnson  v. 
Hollensworth.  48  Mich.  140. 

2  Where  the  covenant  against  incumbrances  is  special,  the  grantor  cannot, 
of  course,  be  held  liable  for  incumbrances  not  created  by  himself,  e.  g.,  taxes 
assessed  upon  the  property  before  he  became  owner.  Jackson  v.  Sassaman,  29 

[299] 


300 


MAKKETA15LE    TITLE    TO    HEAL    ESTATE. 


as  a  part  of  the  covenant  for  quiet  enjoyment,  namely,  that  the 
grantor  shall  quietly  enjoy  the  premises,  "  and  that  free  from 
incumbrances."  In  some  of  the  States  the  covenant  of  general 
warranty  is  construed  to  include  a  covenant  against  incumbrances,8 
and  in  other  States  the  latter  covenant  is  by  statute  implied  from 
the  use  of  the  words  "  grant,  bargain  and  sell  "  4  in  the  granting 
part  of  a  conveyance.4  Such  a  covenant  so  implied  is  not  limited 

Pa.  St.  .106.  But  taxes  paid  by  the  grantor  constitutes  a  breach  of  the 
covenant  against  incumbrances  created  by  himself.  Milot  v.  Reed,  (Mont.) 
29  Par.  Rep.  343.  The  covenant  against  ineumbrances  implied  from  the 
\\ord.s  "grant,  bargain  and  sell,"  covers  taxes  due  by  the  covenantor's 
grantor,  as  well  as  those  due  by  the  covenantor  himself.  Shaffer  v.  Greer. 
S7  Pa.  St.  370:  Large  v.  McLain,  (Pa.  St.)  7  Atl.  Rep.  101.  Taxes  assessed 
upon  the  premises  after  a  conveyance  by  a  prior  owner  constitute  no  breach 
of  a  covenant  against  any  claim  or  demand  of  any  person  claiming  by, 
through  or  under  such  prior  owner.  West  v.  Spaulding,  11  Met.  (Mass.) 
550.  Where  a  widow  and  sole  heir  of  an-  intestate  quit  claimed  their  interest 
in  a  part  of  his  realty,  covenanting  that  if  any  claim  against  the  estate 
should  not  be  paid  and  should  become  a  lien  on  the  premises,  they  would  pay 
it,  it  was  held  that  a  right  of  way  across  the  premises  was  not  within  the 
meaning  of  this  covenant.  Marsh  v.  Fish,  66  Vt.  213. 

Meter  v.  Glenn,  9  Rich.  L.  (S.  C.)  374.  Maitlen  v.  Maitlen,  44  Ind.  App. 
5.10:  81)  X.  E.  906.  Contra  in  Virginia,  Wash.  City  Sav.  Bank  v.  Thornton, 

83  Va.  157;  2  S.  E.  Rep.  193;  Lennig  v.  Land  Co.,  107  Va.  458;  59  S.  E.  400; 
dimming*  v.   Hamrick,  74  W.   Va.  406;   82  S.   E.   44;   and   in  New  York; 
Boreel  v.  Lawton,  90  X.  Y.  293;  Hebler  v.  Brown,  40  X.  Y.  Supp.  441. 

'Pout,  8  137.  Moseley  v.  Hunter,  15  Mo.  322;  Stoepler  v.  Silberberg,  220 
Mo.  258;  H9  S.  W.  418;  Waslee  v.  Rossman,  231  Pa,  219;  80  Atl.  643; 
Alston  v.  Pierson,  (Tex.  Civ.  App.)  158  S.  W.  1165;  Crawford  v.  McDonald, 

84  Ark.  41.r>;  10«  S.  W.  200.     Rotan  v.  Hays,  (Tex  Civ.  App.)   77  S.  W.  654. 
Warren   v.    Stoddart,    (Idaho)    59    Pac.    Rep.   540.     In   Alabama    the  words 
"grunt,   bargain    and    sell"    imply   only   a   covenant    against    incumbrances 
created  by  the  grantor.     Parker  v.  Parker,   (Ala.)   9  So.  Rep.  426;  Hood  v. 
Clark,    (Ala.)    37  So.  550;   Heflin  v.   Phillips,  96  Ala.  561,   11   So.  729.     A 
covenant     against     incumbrances     implied     from    the     words    "convey     and 
warrant"  is  of  the  name  force  and  effect  as   if  expressed  at  full  length   in 
the   deed.     Kent   v.    Cunt  rail.  44    Ind.   452;    Dalton    v.   Taliaferro,    101    111. 
App.  502.     A  statute  in  the  State  of  Washington  provides  that  the  words 
"  convey  and  warrant "  in  a  deed  shall  be  construed  to  include  a  covenant 
ntiain-t    incumbrances.      But    if    the   grantor,    instead    of    using    the    words, 
insert   the  usual    formal   covenant   of  warranty,  such   covenant  wil>  not   be 
construed    to    include    a    covenant    against    incumbrances.      Leddy    v.    Enos, 
(•Wash,  i    33   Pac.   Rep.   503.     Xo  covenant    against   incumbrances   is   implied 
from  the  use  of  the  word  rjrnnl  where  the  deed  conveys  only  the  "  right,  title 
nnd   intercut  "  of  the  grantor.     So.  Pac.  Ry.  Co.  v.  Dore,  34  C'al.  App.  521 ; 
108    Pac.    147;    nor   where   the  operative  words   of   conveyance   were   "give, 
grunt,  alien,  and  confirm."     In  re  Wells'  Ent.,  7  Cal.  App.  515;  94  Pac.  856. 


COVENANT    AGAINST    INCUMBRANCES.  301 

or  restrained  by  an  express  covenant  of  special  warranty  contained 
in  the  same  deed.5  A  covenant  that  the  grantor  will  warrant  and 
defend  the  title  against  the  claims  of  all  persons  lawfully  claim- 
ing the  same,  includes  a  covenant  against  incumbrances.6 

The  covenant  against  incumbrances  must  not  be  confounded 
with  a  covenant  to  discharge  existing  incumbrances,  or  to  do  a 
particular  thing  in  exoneration  of  the  covenantee,  or  to  indemnify 
him  against  a  particular  liability.  Such  a  covenant  is  broken  as 
soon  as  the  failure  to  exonerate  the  covenantee,  or  to  discharge  the 
incumbrance,  or  to  indemnify  against  the  liability  occurs,  and  a 
right  to  substantial  damages  immediately  accrues  thereupon  with- 
out alleging  or  proving  any  special  damage.7 

•Funk  v.  Voneida,  11  S.  &  R.   (Pa.)    109;  14  Am.  Dec.  617. 

•Garner  v.  Garner,  117  Miss.  694;  78  So.  623. 

7  Lethridge  v.  Mytton,  2  B.  &  Ad.  772.  Here  the  covenant  was  to  discharge 
incumbrances  on  the  granted  premises  to  the  extent  of  £19,000,  and,  there 
having  been  a  breach,  judgment  for  £19,000  was  entered  for  the  plaintiff, 
though  it  was  not  alleged  or  proved  that  he  had  been  damnified  by  the 
breach.  The  court,  however,  observed  that  the  defendant  might,  if  he  thought 
fit,  go  into  a  court  of  equity  for  an  injunction  against  the  judgment,  but 
did  not  intimate  an  opinion  as  to  whether  the  injunction  could  be  sustained. 
Terrett  v.  Brooklyn  Imp.  Co.,  87  N.  Y.  92.  But  see  Aberdeen  v.  Blackmar, 
6  Hill  (X.  Y.),  324,  where  it  was  held  that  on  a  covenant  to  indemnify  and 
save  harmless,  plaintiff  must  show  that  he  has  been  actually  damnified.  Gardner 
v.  Niles,  16  Me.  280,  obiter,  the  incumbrance  having  been  actually  enforced 
against  the  covenantee.  Gennings  v.  Xorton,  35  Me.  309,  action  on  bond  by 
grantor  to  indemnify  against  a  particular  incumbrance.  Hartley  v.  Gregory, 
9  Neb.  279.  Mr.  Eawle  (Covts.  for  Title  [5th  ed.],  §  740)  cites  several  cases 
to  the  proposition  in  the  text,  which,  upon  examination,  appear  to  have  been 
actions  upon  agreements  by  the  grantee  to  discharge  an  incumbrance  out  of 
the  purchase  money.  Williams  v.  Fowle,  132  Mass.  385;  Furnas  v.  Durgin, 
119  Mass.  500;  20  Am.  Rep.  341.  Dorsey  v.  Dashiell,  1  Md.  204.  Trinity 
Church  v.  Higgins,  48  N.  Y.  532,  and  others.  The  equity  of  this  'application 
of  the  rule  is  plainly  apparent,  inasmuch  as  a  failure  to  discharge  the  incum- 
brance is  in  substance  a  failure  to  pay  part  of  the  purchase  money.  Such  a 
delinquency  would  appear  to  require  a  sterner  rule  of  damages  than  one  in 
which  the  grantor  had  failed  to  provide  an  indemnity  against  a  loss  which 
had  not  as  yet  occurred.  Mr.  Sedgwick  has  criticised  the  rule  stated  in  the 
text.  Sedg.  Measure  of  Dam.  182.  A  contract  of  indemnity  against  liability 
is  held  to  be  broken  as  soon  as  the  liability  occurs,  and  the  measure  of 
damages  is  the  full  amount  of  such  liability.  Webb  v.  Pond,  19  Wend. 
(N.  Y.)  423.  Rockefeller  v.  Donelly,  8  Cow.  (N.  Y.)  623;  Chace  v.  Hinman, 
8  Wend.  (N.  Y.)  452;  24  Am.  Dec.  39.  But  where  the  obligation  is  that 
the  party  indemnified  shall  not  sustain  damage  or  molestation  by  reason  of 


302  MARKETABLE    TITLE    TO    REAL    ESTATE. 

If  the  covenant  be  by  several  persons  it  will  be  construed  to 
extend  to  several  as  well  as  joint  incumbranc.es.8 

§  120.  RESTRICTIONS  AND  EXCEPTIONS  The  covenant 
against  incumbrances  may,  of  course,  be  restricted  to  some  particu- 
lar incumbrance,  or  to  the  acts  of  some  particular  person,  or  a 
particular  incumbrance  may  be  excepted  from  the  operation  of  the 
covenant.9  When  such  a  restriction  or  exception  is  expressed  in 
the  conveyance  in  clear  and  unambiguous  terms,  no  difficulty  will 
arise  in  the  construction  of  the  instrument,  or  in  determining 
whether  there  has  been  a  breach  of  the  covenant.  But  much  litiga- 
tion has  resulted  from  agreements  of  that  character  resting  alto- 
gether in  parol,  or  from  the  use  of  obscure  and  ambiguous  terms 
in  the  conveyance  with  respect  to  a  particular  incumbrance 
adverted  to  by  the  parties.10 

§  121.  Parol  agreements.  It  may  be  stated,  as  a  general  rule, 
that  where  a  conveyance  containing  a  covenant  against  inciim- 
brances  has  been  executed  by  the  seller  and  accepted  by  the  pur- 

the  acts  or  omission*  of  another  or  by  reason  of  any  liability  incurred 
through  such  acts  or  omissions,  there  is  no  breach  until  actual  damage  in 
sustained.  Gilbert  v.  Wyman,  1  Comst.  (N.  Y.)  563;  49  Am.  Dec.  359.  A 
covenant  to  indemnify  and  save  harmless  from  a  particular  incumbrance  is 
broken  as  soon  as  the  grantee's  title  is  extinguished  by  foreclosure.  Dana  v. 
Goodfellow,  (Minn.)  53  X.  W.  Rep.  656. 

•Duval  v.  Craig,  2  Wh.  (U.  S.)  45. 

•In  Duroe  v.  Evans,  101  Iowa  358;  70  N.  W.  610,  the  deed,  after  recit- 
ing that  it  was  subject  to  two  mortgages,  contained  a  covenant  in  print,  that 
the  premises  were  free  from  all  incumbrances,  followed  by  the  written  words 
"except  as  above*'  and  a  printed  special  warranty  to  defend  against  all 
persons,  followed  by  the  written  words  "  in,  through,  or  by  us."  It  was  held 
that  the  special  warranty  did  not  limit  the  general  covenant  against  incum- 
brances,  and  that  the  grantee  had  a  right  of  action  upon  the  existence  of  a 
mortgage  other  than  the  two  named  in  the  general  incumbrance  clause.  In 
a  ease  in  which  the  covenant  excepted  a  mortgage  for  a  named  sum  and  it 
appeared  that  there  were  two  mortgages  instead  of  one,  the1  two  aggregating 
that  MUM.  it  was  held  that  the  covenant  excepted  both  mortgages.  Baker 
v.  Bradt,  168  Mast.  58;  46  N.  E.  409. 

"In  Smith  v.  Abington  Sav.  Bank,  165  Mass.  285;  42  X.  E.  1133,  it  was 
held  that  the  exception  of  "the  taxes  assessed  for  the  year  1893,"  from  the 
covenant  against  incumbrances,  did  not  include  an  assessment  for  the  con- 
struction of  a  sewer,  and  that  the  grantor  \va-  liable  on  his  covenant  for 
«uch  aitfteftsment.  The  court  said  the  exception  indicated  the  common  annual 
taxes  for  a  particular  year  and  nothing  el*e,  and  it  was  immaterial  that  the 
power  to  levy  the  »ewer  assessment  falls  under  the  general  power  of  taxation. 


COVENANT    AGAINST    INCUMBRANCES.  303 

chaser,  evidence  of  any  contemporaneous  parol  agreement  that 
such  covenant  should  not  extend  to  a  particular  incumbrance,11  or 
that  the  grantee  should  assume  and  pay  off  a  particular  incum- 
brance  embraced  by  the  covenant,  will  not  be  received  in  an  action 
for  the  breach  of  such  covenant.12  Xor  will  such  evidence  be 
received,  where  the  conveyance  was  witout  covenants  for  title,  to 
show  that  the  grantor  orally  agreed  to  discharge  and  pay  off  an 
incumbrance  upon  the  premises.13  Such  a  case  is  not  within  the 
rule  which  permits  the  true  consideration  of  a  written  agreement 

"Scott  v.  Tanner,  (Mo.  App.)  208  S.  W.  264;  Morriss  v.  Hesse,  (Tex.  Civ. 
App.)  210  S.  W.  710;  Newmyer  v.  Roush,  21  Idaho  106,  Pac.  464,  the 
particular  incumbrance  in  this  case  being  a  private  road  across  the  premises. 
McPherson  v.  Kissee,  239  Mo.  664;  144  S.  W.  410. 

"Buckner  v.  Street,  5  McCrary  (C.  C.),  59.  Raymond  v.  Raymond,  10 
Gush.  (Mass.)  141;  Howe  v.  Walker,  4  Gray  (Mass:),  318;  Button  v.  Gerish, 
9  Gush.  (Mass.)  94;  55  Am.  Dec.  45;  Flynn  v.  Bourneuf,  143  Mass.  277;  58 
Am.  Rep.  135;  Simanovich  v.  Wood:,  145  Mass.  180;  13  N.  E.  Rep.  391. 
Suydam  v.  Jones,  10  Wend:  (N.  Y.)  185;  25  Am.  Dec.  552.  Johnson  v.  Wal- 
ton, 60  Iowa,  315;  14  1ST.  W.  Rep.  325.  Edwards  v.  Clark,  83  Mich.  246;  47 
N.  W.  Rep.  112.  Bingham  v.  Bingham,  57  Tex.  238.  McKennan  v.  Dough- 
man,  1  Pen.  &  W.  (Pa.)  417.  Grice  v.  Scarborough,  2  Spear  L.  (S.  C.)  650; 
42  Am.  Dec.  391.  Long  v.  Moler,  5  Ohio  St.  272.  McClure  v.  Campbell, 
(Neb.)  40  N.  W.  Rep.  595.  Garner  v.  Garner,  117  Miss.  694;  78  So.  623; 
Weiss  v.  Clamitz,  203  111.  App.  246;  Pierse  v.  Bronnenburg,  40  Ind.  App. 
662,  81  N.  E.  739.  The  grantor  cannot  show  that  the  grantee  knew  of  the 
adverse  claim  under  which  he  was  evicted,  and  that  it  was  agreed  between 
the  parties  that  the  grantor  should  not  be  charged  if  the  grantee  should  be 
evicted.  Townsend  v.  Weld,  8  Mass.  146.  Where  the  grantor  expressly 
covenanted  against  tax  liens,  parol  evidence  was  held  not  admissible  to  show 
an  oral  agreement  by  the  grantee,  before  the  execution  of  the  deed,  to  pay 
off  a  tax  lien  to  which  his  attention  was  called.  Reagle  v.  Dennis,  (Kan. 
App.)  55  Pac.  469.  Parol  evidence  that  the  grantee  assumed  the  payment 
of  taxes  on-  the  land,  as  a  part  of  the  purchase  price,  is  admitted  in  Indiana. 
Carver  v.  Louthain,  38  Ind.  530.  See  also,  O'Connor  v.  Enos,  56  Wash.  448 ; 
105  Pac.  1039;  Clark  v.  Baker,  91  Conn.  651;  101  Atl.  8;  Preble  v.  Baldwin, 
6  Cush.  (Mass.)  549.  In  Burk  v.  Brown,  58  Ind.  App.  410;  108  N.  E.  252, 
it  was  held  that  the  vendor's  oral  agreement  to  pay  off  and  discharge  an 
incumbrance  on  the  property,  was  not  merged  in  the  vendee's  acceptance  of  a 
deed1  to  the  property  from  a  third  person,  and  that  an  action  against  the 
vendor  for  breach  of  the  oral  agreement  was  maintainable  by  the  vendee.  In 
Reds  v.  Epperson,  143  Mo.  App.  90;  122  S.  W.  353,  it  was  held  that  the 
burden  is  on  the  covenantor  to  show  that  the  covenantee  assumed  the  pay- 
ment of  the  incumbrance. 

12  Howe  v.  Walker,  4  Gray  (Mass.),  318.  Duncan  v.  Blair,  5  Den.  (N.  Y.) 
196.  McLeod  v.  Skiles,  81  Mo.  595. 


304  MARKETABLE    TITLE    TO    REAL    ESTATE. 

to  be  shown  by  parol.  -But  whore  the  conveyance  was  "  subject 
to  mortgage "  parol  evidence  was  admitted  to  show  that  the 
grantee  assumed  payment  of  the  mortgage;  in  such  case  the  evi- 
dence is  admitted,  not  as  supplying  a  new  term  of  the  contract, 
but  as  explanatory  of  a  doubtful  expression  employed  by  the 
parties.14  And  parol  evidence  will  be  received  to  show  that  the 
grantee  was,  in  fact,  indemnified  against  a  particular  incum- 
branee,  as  where  other  land  had  been  conveyed  to  him  in  satisfac- 
tion of  an  existing  mortgage  on  the  premises.15  Modifications 
of  the  foregoing  general  rule  have  been  announced  in  several 
cases,  which  are  difficult  to  be  reconciled  with  that  rule.  Thus  it 
has  been  said  that  parol  evidence  will  be  received,  not  to  con- 
tradict the  terms  of  a  written  warranty,  but  to  show  that  the 
projKTty  was  taken  by  the  purchaser  subject  to  incumbrances 
which  he  knew  to  exist  at  the  time  of  the  purchase,  though  not 
mentioned  in  the  deed,  and  though  there  was  a  warranty  against. 
incumbrances.1'  The  rule  excluding  parol  evidence  to  show  an 
exception  from  a  covenant  against  incumbrances  does  not  apply 
to  cases  of  fraud  "  or  mistake.18  But  the  fraud  or  mistake  oom- 

"Aufricht  v.  Xorthrup,  20  Iowa,  81. 

"Johnston  v.  Markte  Paper  Co.,  153  Pa.  St.  189;  25  Atl.  Rep.  560. 

'•Sidder*  v.  Rilry,  22  111.  110,  dirt.,  citing  Allen  v.  Lee,  1  Ind.  58;  48  Am. 
Dec.  352.  Leland  v.  Stone,  10  Mass.  459.  Pitman  v.  Connor,  27  Ind.  337. 
It  in  submitted,  with  diffidence,  that  such  evidence  docs  contradict  the  war- 
ranty. Leland  v.  Stone  was  a  case  of  mistake  in  omitting  the  exception.  This 
ca.se  of  Sidders  v.  Riley  has  been  criticized  by  Mr.  Rawle  (Covts.  for  Title 
[5th  ed.]  p.  113).  Such,  however,  seems  to  be  the  established  rule  in 
Indiana.  Maris  v.  lies.  (Ind.)  30  N.  E.  Rep.  152;  Hendrick  v.  Wisehart,  57 
Ind.  120;  McDill  v.  Ounn,  43  Ind.  315;  Fitzer  v.  Fitzer,  29  Ind.  46S.  And 
whether  or  not  consistent  with  the  doctrine  of  merger  of  parol  agreements 
in  the  covenants  for  title,  it,  doubtless,  in  many  cases,  effectuates  the  true 
intent  of  the  parties.  As  to  the  rule  in  Pennsylvania,  see  post,  §  209. 

"Burkner  v.  Street,  5  MeCrary  (U.  S.),  59.  Helton  v.  Asher,  135  Ky.  751; 
123  S.  W.  285.  Kyle  v.  Febley,  (Wis.)  51  N.  W.  Rep.  257.  In  this  case  the 
grantor,  an  ignorant  woman,  had  been  fraudulently  induced  to  execute  a 
deed,  without  excepting  an  outstanding  lease  from  her  covenants.  Fraud  i» 
not  merged  in  a  covenant  against  incumbrances.  Sargent  v.  CJuttervMi,  13 
N*.  IT.  473.  See  pout.  |  270.  Taylor  v.  Oilman,  25  Vt.  413.  Here  the  incum- 
brance  romplnincd  of  was  a  right  in  a  railroad  company  to  take  gravel  and 
earth  from  the  granted  promises.  It  appeared  that  the  parties  had  divided 
between  thcmMclvcs  the  damages  that  were  to  I*  paid  by  the  company,  and 
had  expressly  agreed  that  the  covenant  should  not  embrace  that  inciimbrance, 
and  it  wa*  considered  that  to  enforce  the  covenant  would  be  to  assist  the 


COVENANT    AGAINST    INCUMBRANCES.  305 

plained  of  must,  of  course,  be  such  as  caused  the  omission  of  the 
true  agreement  of  the  parties  from  the  conveyance,  such  as  a 
fraudulent  representation  that  the  insertion  of  the  exception  was 
unnecessary,  or  that  the  instrument,  in  fact,  contained  the  excep- 
tion, or  other  fraud  of  a  like  kind.  It  could  hardly  be  contended 
that  either  party  was  guilty  of  fraud  in  taking  advantage  of  an 
inadvertent  omission  of  a  part  of  their  agreement  from  the 
instrument.19 

§  121-a.  Conveyance  "subject  to"  incumbrance.  It  fre- 
quently happens  in  the  sale  of  real  property  that  the  purchaser 
agrees  to  pay  off  and  discharge  known  incumbrances  upon  the 
premises  as  a  part  of  the  consideration  of  the  sale.  When  such  is 
the  case  the  seller  should  be  careful  to  see  that  such  an  agreement 
is  fully  and  unequivocally  expressed  in  the  conveyance.20  A  mere 
recital  that  the  grantor  conveys,  or  that  the  purchaser  takes, 
"  subject  to  mortgage  "  or  "  subject  to  incumbrances  "  imposes  no 
obligation  upon  the  grantee  to  pay  the  mortgage  debt  or  remove  the 
incumbrance,  except  for  his  own  protection.21  The  statement  that 

grantee  in  a  fraud.  It  is  not  easy  to  draw  a  distinction  in  principle  between 
this  case  and  any  other  in  Avhich,  for  a  valuable  consideration,  it  was  agreed 
that  the  covenant  should  not  extend  to  a  particular  incumbrance,  and,  in 
which  the  parties  failed  to  insert  the  exception  in  the  deed. 

"Haire  v.  Baker,  1  Seld.  (N.  Y.)  361.  Helton  v.  Asher,  135  Ky.  715; 
123  S.  W.  285.  The  fraud  or  mistake  may,  of  course,  be  shown  in  equity, 
and  in  equitable  defenses  at  law,  very  generally  permitted  by  statute 
throughout  the  American  States. 

19 See  the  remarks  of  the  court  in  Collinwood  v.  Irwin,  3  Watts  (Pa.), 
306. 

20  Jones  Mortg.  §  748;  Rawle  Covts.  for  Title   (5th  ed.),  §  88. 

21  Jones  Mortg.  §  748.    Drury  v.  Tremont  Imp.  Co.,  13  Allen   (Mass.),  171. 
Belmont  v.  Coman,  22  X.  Y.  438.    Strohauer  v.  Voltz,  42  Mich.  444.    Johnson 
V.   Monell,    13   Iowa,   300;   Aufricht  v.   Nbrthrup,   20   Iowa,   61.     Livingston 
Bank  v.  Sailing,  66  Neb.  180;  92  1ST.  W.  318.    See,  also,  Tweddell  v.  Tweddell, 
2  Bro.  C.  154.    Waring  v.  Ward,  7  Ves.  Jr.  337.    Evidence  that  the  purchaser 
was  familiar  with  the  land,  and  that  he  knew  its  value  exceeded  the  pur- 
chase price,  is  not  admissible  for  the  purpose  of  showing  that  he  assumed 
the  payment  of  a  mortgage  on  the  premises.     Morehouse  v.  Heath,  99  Ind. 
509.     It  seems,  however,  that  parol  evidence  will  be  admitted  to  show  that 
the  incumbrance  was  deducted  from  the  purchase  money.     See  Townsend  v. 
Ward,  27  Conn.  610.     Ferris  v.  Crawford,  2  Denio   (N.  Y.)   595.     Thompson 
v.  Thompson,  4  Ohio  St.  333.     McMahon  v.  Stewart,  23  Ind.  590.     Leipold 
v.  Epler,  198  111.  App.  618. 

39 


30()  MAKKETABLK    T1TLK    TO    KEAL    ESTATE. 

the  deed  is  made  "  subject  to  "  designated  incumbrances  is  often 
made  merely  for  tbe  purpose  of  preventing  a  breach  of  the  cove- 
nant against  incumbrances,  and  not  for  the  purpose  of  charging 
the  grantee  with  the  incumbrance.22  If,  however,  the  intention 
of  the  parties  that  the  grantee  should  discharge  incumbrances  in 
part  payment  of  the  purchase  money  appears  from  the  whole 
instrument,  though  not  expressed  in  so  many  words,  it  will  be 
enforced.23  Parol  evidence  will  be  received  to  show  that  a  grantee 
taking  "  subject  to  "  an  incumbrance  was  by  his  contract  obliged 
to  pay  off  and  discharge  the  same  as  part  of  the  consideration.24 
But,  while  a  conveyance  "  subject  to  "  a  particular  incumbrance 
will  not  oblige  the  grantee  to  pay  the  incumbrance,  except  for 
his  own  protection,  it  will,  of  course,  relieve  the  grantor  from 
liability  as  to  that  incumbrance  upon  his  covenant  against  incum- 
brances.25 That  expression  is  sufficient  as  a  special  exception  from 
the  operation  of  the  covenant.2*  And  where  there  has  been  such 
an  exception  the  covenant  will  not  of  course  be  broken  by  the 
existence  of  the  excepted  incumbrance.27  Nor  will  the  grantee  be 
permitted  to  assign  as  a  breach  of  the  covenant  against  incum- 
brances a  mortgage  which  he  himself,  for  an  adequate  considera- 
tion, had  undertaken  to  discharge.28  But  if  a  particular  incum- 
brance of  a  named  amount  be  excepted  from  the  operation  of 
the  covenant,  the  mention  of  such  amount  will  not  be  treated  as 

"Van  Winkle  v.  Earl,  26  N.  J.  Eq.,  242.  Barnett  v.  Keehn,  87  Wis.  154; 
30  N.  W.  112. 

•  Thus  it  has  been  held  that  "  a  conveyance  of  land  expressly  subject  to  all 
incumbrances "  binds  the  grantee  to  pay  off  an  ineumbrance.  Skinner  v. 
Starner,  24  Pa.  St.  123.  A  recital  in  a  deed  that  "  portion  of  the  above- 
described  premises  was  set  off  on  execution  by  A.  against  B.  *  *  *  and 
thia  conveyance  ia  made  subject  to  the  incumbrance  of  said  execution,"  ex- 
cept* such  incumbrance  from  the  grantor's  covenants.  Shears  v.  Dusenbury, 
13  Gray  (Mass.),  292. 

"Aufricht  v.  Northrop,  20  Iowa,  61.  Gill  v.  Ferrin,  71  N.  H.  421:  52  Atl. 
M 

"Freeman  v.  Foster,  65  Me.  508.  Jackson  v.  Hoffman,  9  Cow.  (N.  Y.) 
271;  Walther  v.  Briggs,  69  Minn.  98;  71  N.  W.  909;  Hopper  v.  Smyser,  90 
Mel.  363;  45  Atl.  206.  Van  Winkle  v.  Earl,  26  N.  J.  Eq.  242. 

"Freeman  v.  Foster,  55  Me.  508.  Miller  v.  DeGraffenreid,  43  Colo.  306, 
95  Pac.  941. 

"Pouter  v.  Wood«,  16  Mass.  116. 

»  Watts  v.  Wellman,  2  N.  H.  458,    Reid  v.  Svcks.  27  Ohio  St.  285. 


COVENANT    AGAINST    INCUMBRANCES.  307 

mere  matter  of  description ;  it  will  be  held  a  guaranty  that  the 
sum  mentioned  constitutes  the  whole  amount  of  the  incumbrance, 
and  th»  covenant  will  be  broken  if  the  incumbrance  exceed  that 
amount.29  It  has  also  been  held  that  an  agreement  by  the  grantee 
to  pay  off  incumbrances  might  be  waived  by  the  parties,  and 
that  the  grantee  might,  after  such  waiver,  maintain  an  action  for 
breach  of  the  covenant,  if  the  vendor  failed  to  satisfy  the  incum- 
brances, or  to  redeem  the  land  if  sold  thereunder.30  An  agree- 
ment by  the  grantee  to  assume  payment  of  an  incumbrance  on 
the  premises  need  not  be  contained  in  the  conveyance  to  him. 
Such  an  agreement  contained  in  an  instrument  of  equal  dignity 
with  the  deed,  such  as  a  bond,  will  render  inoperative  a  covenant 
of  warranty  contained  in  the  deed.31  In  Massachusetts  it  is 
settled  that  if  a  conveyance  contain  a  covenant  against  incum- 
brances, excepting  a  particular  incumbrance  and  also  a  cove- 
nant of  warranty,  the  exception  applies  only  to  the  covenant 
against  incumbrance  and  not  to  the  covenant  of  warranty,  and  that 
the  excepted  incumbrance,  if  enforced,  will  constitute  a  breach  of 
the  covenant  of  warranty.32  This  rule,  however,  has  been  thus 
qualified  in  that  State,  namely,  that  if  the  granting  part  of  the 
deed  describe  the  premises  as1  subject  to  an  incumbrance,  a  cove- 
nant of  warranty  following  thereafter  will  be  limited  precisely 
to  what  purported  to  be  conveyed  —  that  is  the  land,  subject  to  the 

29  Smith  v.  Lloyd,  29  Mich.  382.     Potter  v.  Taylor,  6  Vt.  676. 

™  Sherwood  v.  Wilkins,    (Minn.)    52  N.  W.  Rep.  394. 

31  Brown  v.  Staples,  28  Me.  497 ;  48  Am.  Dec.  504.  So  generally,  it  seems, 
if  the  grantee  assume  in  writing,  the  discharge  of  the  incumbrance.  Cope- 
land  v.  Copeland,  30  Me.  446.  McAbee  v.  Cribbs,  194  Pa.  St.  94;  44  Atl. 
1066.  In  Reid  v.  Sycks,  27  Ohio  St.  285,  it  was  held  that  an  agreement  by 
the  purchaser  contained  in  the  contract  of  sale  to  pay  an  incumbrance,  is  not 
merged  in  a  conveyance  of  the  land  with  covenants  for  title. 

32Estabrook  v.  Smith,  6  Gray  (Mass.),  572.  It  is  to  be  observed  that  in 
this  case  there  was  no  mention  of  the  incumbrance  in  the  granting  part  of 
the  deed.  This  decision  has  been  questioned  as  adopting  a  construction  of 
the  covenants  apparently  at  variance  with  the  intention  of  the  parties.  The 
case  has  been  criticized  by  Mr.  Rawle  (Covts.  for  Title  [5th  ed.],  §  290),  and 
disapproved  in  Bricker  v.  Bricker,  11  Ohio  St.  240,  where  a  contrary  decision 
was  rendered  upon  the  same  state  of  facts.  It  was  approved,  however,  in 
King  v.  Kilbride,  58  Conn.  109;  19  Atl.  Rep.  519.  Sandwich  Manfg.  Co.  v. 
Zellman,  (Minn.)  51  N".  W.  Rep.  379,  and  distinguished  in  Toney  v.  Dewey, 
(Ala.)  78  So.  887. 


308  MARKETABLE    TITLE    TO    REAL    ESTATE. 

iiicumbrance.33  And  further,  that  the  exception  of  a  particular 
incumbrance  will  not  be  controlled  by  a  subsequent  covenant  of 
warranty,  if  the  deed  recite8  that  the  grantee  assumes  and  agrees 
to  pay  the  excepted  incumbrance.*4 

In  a  covenant  against  incumbrances,  a  provision  that  the  land 
is  clear  "except  an  incumbrance  of  $1,500,"  merely  identifies  the 
incumbrance  and  does  not  fix  the  amount  -by  payment  of  which 
the  incumbrance  may  be  discharged.  Hence  the  grantor  is  not 
liable  on  his  covenant  for  the  interest  accrued  on.the  mortgage  at 
the  time  of  the  conveyance.35  On  the  other  hand,  it  has  been  held 
that  an  exception  of  an  incumbrance,  payment  of  which  was 
assumed  by  the  grantee,  did  not  embrace  interest  coupons  matured 
and  in  default  at  the  date  of  the  deed,  with  accrued  interest 
thereon,  and  that  the  grantor  remained  liable  for  such  coupons 
and  interest.36 

A  deed  of  trust  to  secure  payment  of  the  purchase  money  in 
which  the  grantor  covenants  to  pay  all  tax  liens  on  the  property, 
operates  to  restrict  or  qualify  a  covenant  against  incumbrances  in 
the  deed -by  the  party  secured  by  the  trust.37 

The  grantee,  by  accepting  a  deed  subject  to  an  incumbrance, 
is  estopped  to  deny  the  validity  of  the  incumbrance.38 

§  122.  WHAT  CONSTITUTES  BREACH.  A  covenant  against  in- 
cumbrances, if  broken  at  all,  is  broken  as  soon  as  made.  The  mere 

"Brown  v.  Bank,  148  Mass.  300;  19  N.  E.  Rep.  382;  Linton  v.  Allen,  154 
Mass.  432;  28  X.  E.  Rep.  780.  Freeman  v.  Foster,  55  Me  508.  But  where 
incumbrances  were  described  in  the  granting  part  of  the  deed,  and  all  of 
them  were  excepted  from  the  covenant  against  incumbrances,  and  the  grantor 
further  covenanted  that  he  would  "  warrant  the  premises  against  all  claims 
and  demands  of  all  persons  except"  (two  of  the  incumbrances  mentioned), 
it  was  held  that  he  had  covenanted  against  the  third  incumbrance,  such  being 
the  consequence  of  lii-  failure  to  except  that  incumbrance  from  his  covenant 
of  warranty.  Schaad  v.  Robinson,  59  Wash.  346;  109  Pac.  1072.  Ayer  v. 
Brick  Co.,  (Maws.)  31  N.  E.  Rep.  717. 

••Lively  v.  Rice,  150  Mass.  171;  22  N.  E.  Rep.  888.  Keller  v.  A«hford,  133 
U.  8.  610*. 

"Bankson  v.  Lagerlof  (Iowa),  75  N.  W.  661;  LaderouUs  v.  Chale,  9  N. 
Dak.  331;  83  N.  W.  218. 

"Reagle  v.  Dennis,  (Kan.  App.)  65  Pac.  469. 

"Cleveland  Park  L.  &  I  Co.  v.  Campbell,  65  Mo.  App.  109. 

*  Johnson  v.  Thompson,  129  Mass.  398;  Fuller  v.  Devoid,  144  Mo.  App.  93; 
128  S.  W.  1011. 


COVENANT  AGAINST  INCUMBKANCES.  309 

existence  of  the  incumbrance,  if  it  be  capable  of  enforcement,  is  a 
breach  of  the  covenant  without  regard  to  the  probability  of  its 
enforcement,  though,  as  we  shall  hereafter  see,  the  plaintiff  can 
recover  no  more  than  nominal  damages  if  he  has  suffered  no  incon- 
venience or  loss  on  account  of  the  incumbrance.39  But  a  cove- 
nant to  defend  the  grantee  against  a  particular  incumbrance  is 
not  broken  by  the  mere  existence  of  that  incumbrance;  such  a 
covenant  is  broken  only  by  an  enforcement  of  the  incumbrance. 
Any  other  construction  would  be  plainly  contrary  to  the  manifest 
intention  of  the  parties,  even  though  the  deed  contained  a  general 
covenant  against  incumbrances.40  The  covenant  is,  of  course,  not 
broken  by  the  existence  of  an  incumbrance  which  the  grantee 
has  assumed-  to  pay.  And  proceedings  to  foreclose  such  an  incum- 
brance, accompanied  by  a  lis  pendens,  cannot  be  held  a  breach  of 
the  covenant  since  these  are  mere  incidents  of  the  incumbrance.41 

Nor  is  the  covenant  broken  by  the  existence  of  an  incumbrance 
when  the  deed  contains  a  provision  that  it  is  made  "  subject  to  " 
such  incumbrance.  That  recital  is  a  part  of  the  description  of  the 
estate,  and  the  covenant  has  reference  to  that  estate  thus  qualified.42 

It  has  been  held  that  an  express  covenant  to  remove  a  particular 
incumbrance  imposes  a  higher  obligation  than  the  ordinary  cove- 
nant against  incumbrances,  and  that  on  the  breach  of  such  cove- 
nant, the  covenantee  may  recover  his  actual  damages,  though  he 
has  not  himself  discharged  the  incumbrance  nor  suffered  eviction 
thereunder.43 

The  covenant  extends  only  to  incumbrances  existing  at  the  time 
thereof;  it  does  not  extend  to  liens  or  incumbrances  created  by  a 
subsequent  purchaser  of  the  premises.44 

39  See  post,  §  129.  Stamburgh  v.  Smith,  23  Ohio  St.  584.  Ladd  v.  'Myers, 
137  Mass.  151.  Moseley  v.  Hunter,  15  Mo.  322.  Dahl  v.  Stakke,  12  N".  Dak. 
325;  96  N.  W.  353;  Jewett  v.  Fisher,  (Kan.  App.)  58  Pac.  1023.  Anniston 
Lumber  Co.  v.  Griffith,  (Ala.)  73  So.  418;  Knowles  v.  Temple,  49  Wash.  595; 
96  Pac.  1;  Dudley  v.  Waldrop,  (Mo.  App.)  183  S.  W.  1095;  Smith  v.  Smith, 
90  N.  J.  L.  282;  101  Atl.  254. 

f  Shelton  v.  Pease,  10  Mo.  473. 

41  Monell  v.  Douglas,  17  N.  Y.  Supp.  178,  not  officially  reported. 

42  Johnson  v.  Nichols,  105  Iowa  122;  74  N.  W.  750;  Brown  v.  Bank,  148 
Mass.  30;   19  N.  E.  382. 

"Bohlcke  v.  Buchanan,  94  Mo.  App.  320;  aff'd.  68  S.  W.  Rep.  92. 
"Naylor  v.  McNair,  91  Ark.  345;   122  S.  W.  662. 


310  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

§  123.  Definition  of  incumbrance.  The  precise  legal  defini- 
tion of  the  term  incuinbramce  is  a  matter  of  some  nicety.  In  a 
popular  sense,  it  means,  as  has  been  said,  a  clog,  load,  hindrance, 
impediment,  weight.  Perhaps  the  best  judicial  definition  of  the 
term  is  that  of  Chief  Justice  PARSON  :  "  Every  right  to  or  inter- 
r.-t  in  the  land  granted,  to  the  diminution  of  the  value  of  the  land, 
but  consistent  with  the  passing  of  the  fee." 45  Hereunder  all 
incumbrances  may  be  classed  as:  (1)  Pecuniary  charges  on  the 
granted  premises:  (2)  Estates  or  interests  less  than  a  fee  in  the 
premises;  and  (3)  Easements  or  servitudes  to  which  the  premises 
:ir<-  subject.  The  definition  given  is  satisfactory  as  to  the  first 
two  of  these  classes ;  for  it  is  plain  that  a  pecuniary  charge  upon 
the  premises,  or  a  lesser  estate  carved  therefrom,  must  diminish 
their  value.  But  the  definition  is  necessarily  inconclusive  as 
respects  the  third  class,  inasmuch  as  there  are  certain  easement-, 
technically  "incumbrances"  which  may  be  beneficial  rather  than 
detrimental  to  the  premises,  such,  for  example,  as  a  railway  or 
a  public  highway;  a  fact  which,  coupled1  with  notice  of  the  exist- 
ence of  the  easements  at  the  time  of  the  purchase,  has  occasioned 
much  conflict  of  decision  as  to  whether  they  constitute  such 
breaches  of  the  covenant  as  entitle  the  purchaser  to  damage.46 

§  124.  Pecuniary  charge  or  lien.  Judgments.  Tax  liens. 
Notice  to  covenantee.  A  pecuniary  charge  or  lien  upon  the 
granted  premises,  existing  at  the  time  of  the  conveyance,  con- 
stitutes a  breach  of  the  covenant  against  incumbrances.  It  i> 
immaterial  whether  the  purchaser  had  or  had  not  notice  of  the 
incumbrance  at  the  time  the  conveyance  was  executed.  The  right 
to  rescind  an  executory  contract  and  to  recover  back  the  purchase 

•Prescott  v.  Trueman,  4  Mass.  627;  3  Am.  Dec.  249.  This  definition  ha< 
been  approved  by  Mr.  ftreenleaf  (2  Ev.  $  242),  and  by  Mr.  Rawlc  (Covts.  fur 
Title  [.1th  ed.)  {;  7ii.  \vlni  ho\\..ver  pertinently  adds  flint  the  question  "what 
doe*  diminish  the  value  of  the  land"  must  sometimes  lie  a  matter  of  doubt, 
a-  where  the  alleged  ineiimhrance  consists  of  a  railroad  or  a  public  hijjhwav. 
either  of  which  may  be  a  benefit  instead  of  a  burden  to  the  land.  Definition 
•tjipro\ed  in  Ilniiik  v.  Moore.  19  Mi.  313.  Bronson  V.  Coflin.  Ins  Mas,.  175; 
II  Am.  Hep.  :{.",:,  Chapman  v.  Kimball.  7  Neb.  399;  Frit/  v.  I'usey.  31  Minn. 
368;  18  N.  W.  Rep.  01.  Clark  v.  Fisher,  54  Kans.  403;  38  Pac.  Rep.  4'.i3: 
'.e  v.  Mtp-.  Co.,  KJrt  Ala.  170;  51  So.  Slil  ;  Tuske-ree  Land  Co.  v  Realty 
Co.,  (Ala.)  49  So.  378:  Booth  v.  Wyatt,  (Utah)  ls:«  I'a,.  ::-j:j.  and  in  many 
other  <  ase». 

-Post,  I  127. 


COVENANT    AGAIKST    INCUMBBANCES.  311 

money  already  paid,  or  to  detain  that  which  remains  unpaid,  has 
been  in  some  cases  denied  on  the  ground  that  the  contract  was 
made  with  notice  of  the  incumbrance.  But  notice  is  of  no  import- 
ance after  a  conveyance  with  covenants  for  title  has  been  executed. 
The  purchaser  takes  the  covenant  as  much  for  protection  against 
known  as  against  unknown  incumbrances,47  and  he  is  not  required 
to  exercise  any  diligence  in  ascertaining  whether  there  are 
incumbrances  on  the  land,48  and  it  is  immaterial  that  an  examina- 
tion of  the  public  records  by  him  would  have  disclosed  the  incum- 
brances of  which  he  complains.49  The  existence  of  the  incum- 
brance constitutes  a  breach  of  the  covenant  though  the 
incumbrance  has  been  neither  actually  nor  constructively 
enforced,  and  though  the  covenant  be  coupled  with  that  for  quiet 
enjoyment,  and  there  has  been  no  eviction  of  the  purchaser.50 
But,  as  will  be  hereafter  seen,  the  purchaser  can  recover  no  more 
than  nominal  damages  if  the  breach  has  occasioned  him  no  loss 
or  injury.51 

A  judgment  lien  binding  the  granted  premises  constitutes,  of 
course,  a  breach  of  the  covenant  against  incumbrances.52  So,  also, 

47  Dunn  v.  White,  1  Ala.  645.     Worthington  v.  Curd,  22  Ark.  285.     Snyder 
v.  Lane,  10  Ind.  424.     Whitten  v.  Krich,  27   Ind.  App.   419;   61  N.  E.  593. 
Townsend  v.  Weld,   8  Mass.   146.     Smith  v.   Lloyd,  29   Mich.   382;    Clore  V. 
Graham,  64  Mo.  249.    Long  v.  Moler,  5  Ohio  St.  272 ;  Lloyd  v.  Quinby,  5  Ohio 
St.  263,  265.     Funk  v.  Voneida,  11  Serg.  &  E.   (Pa.)    109;   14  Am.  Dec.  617. 
Cathcart  v.  Bowman,  5  Pa.  St.  317;  Shaffer  v.  Green,  88  Pa.  St.  370.     Evans 
v.  Taylor,  177  Pa.  St.  286;  35  Atl.  635.     Lane  v.  Richardson,   (N.  Car.)    10 
S.  E.  Rep.  189.     Yancey  v.  Tatlock,   (Iowa)    61  N.  W.  Rep.  997.     Doyle  v. 
Emerson,    145   Iowa   358;    124  N.   W.    176;    Schimmelfenning  v.   Brunk,   153 
Iowa  177;  132  N.  W.  838.    Dudley  v.  Waldrop,  (Mo.  App.)    183  S.  W.  1095; 
O'Connor  v.   Enos,   56  Wash.  448;    105   Pac.   1039;   Anniston  Lumber  Co.  v. 
Griffith,   (Ala.)   73  So.  418;  Xeeley  v.  Lane,   (Tex.  Civ.  App.)   205  S.  W.  154; 
Askew  v.   Brunei-,      (Tex.   Civ.  App.)    205  S.  W.   152;   Delco  Holding  Co.  v. 
Rosenthal,  164  N.  Y.  Supp.  785. 

48  Edwards  v.  Clark,  83  Mich.  246;  47  N.  W.  Rep.  112;  Smith  v.  Lloyd,  29 
Mich.  382.     Woolums  v.  Hewitt,  142  La.  597;  77  So.  295. 

49  Downs  v.  Nally,  161  Ky.  432,  170  S.  W.  1193. 
50 Hall  v.  Dean,  13  Johns.    (N.  Y.)    105. 

'  51Post,  §  129. 

52  Hall  v.  Dean,  13  Johns.  (N.  Y.)  105.  Wilkinson  v.  Olin,  136  111.  App. 
527.  A  sale  of  the  premises  under  an  execution  issued  upon  a  dormant  judg- 
ment without  proceedings  to  revive,  and  without  leave  of  court,  is,  neverthe- 
less, a  breach  of  the  covenant  against  incumbrances.  A  sale  of  property 
under  a  merely  voidable  execution  is  valid.  Jones,  v.  Davis,  24  Wis.  229. 


-"'.  _  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

an  attachment,  though  it  be  in  its  nature  uncertain  and  dependent 
upon  the  final  judgment  to  be  rendered  in  the  action ;  3  the  lien 
which  it  creates  remains  a  continuing  security  for  any  judgment 
that  the  plaintiff  may  obtain  in  the  suit.14  The  covenant  is  also 
broken  by  the  existence  of  a  mechanic's  lien,15  a  vendor's  lien,**  or 
a  mortgage  or  deed  of  trust  upon  the  premises.*  A  mere  lis 
ftmifms,  without  evidence  that  it  is  weil  founded,  is  no  incum- 
brance:  a  neither  is  a  tax  deed  which,  though  recorded,  is  for  any 
reason  insufficient  to  pass  the  title.1*  The  grantee  is  under  no 
obligation  to  the  grantor  to  put  the  deed  on  record,  and  it  is  no 
defense  to  the  grantor  that  an  incumbrance  created  by  him 
would  have  been  defeated  if  the  grantee  had  promptly  had  his 
deed  recorded.** 

Taxes  and  assessments  payable  by  the  grantor  and  levied  upon 
the  property  conveyed,  are  a  breach  of  the  covenant  against  ineum- 
hrances.  especially  under  statutes  which  provide  that  they  shall 
constitute  liens  on  the  property  taxed  or  benefited.*1  Where, 

•Xortoa  T.  Bahtock.  2  Met.  (Mass.)  510;  Kefcer  T.  Remer.  43  Cbaa.  129; 
21  Am  Rep.  03& 

*Johaaaa  v.  ****•+*!  lit  Mam  302, 

•Dyer  T.  Ladoawm  2  DeL  Co.  (X  Rep.  (Pa.)  422,    Redmoa  T.  Pheaix  Fire 
las.  Cou  51  Wm  282  ;  8  X.  W.  Rep.  22*.    Tab  was  a  mit  oa  a  fire  iasmraace 
polirr.  eoatalaiag  a  rtatuatat  that  there  was  ao  iainaJhisau  oa  the  pmamn 
The  right  to  file  a  awchaaks*  bo  at  the  t  iaw  of  the  deed,  is  also  a  breach 
of  the  aast.     Dumr  r.  Sharp,  73  Mo.  App.  31t. 

"MeKeaaaa  T.  Dia^ais.  1  Pea.  4  W.  (Pa.)  417,  Haiti.  Xeefcy  r. 
Laae.  (Tex.  Or.  App.)  193  &  W.  300. 

•TafUT.AdaamSPirk.  (Mam)  54*  Bnwks  v.  Moodr,  20  Pkk.  (Mam) 
474,  Beaa  T.  Mayo.  5  GreeaL  (Me.)  94.  Bord  T.  Bartfctt,  3t  VL  1.  Fuak 
T.  Voaeida.  11  Serg.  4  R.  (Pa.)  100;  14  Am  Dee,  t!7.  Askew  r.  Braaer, 
(Tw.  Or.  App.)  205  S.  W.  152. 

•Klrr  T.  Geiger.  (Wash.)  30  Pac.  Rep.  727.    See.  abo,  post.  If  290,  308. 

•TiafceU*  T.  LatMm  148  Mam  102;  18  X.  K.  Rep.  879. 

•Gremager  T.  Xabor,  98  Kaa.  507;  152  Pac.  023. 

•Carr  T.  Doolrr,  119  MaM.  294.  la  feet,  the  r  i»iil  U  ao  bea  cakas 
ande  ao  hy  lUtate.  Cbokj  oa  Taxatioa,  305.  CadauM  T.  Fagaa.  47  X.  J.  L. 
Mil  Taaea  eamMUhafa  Irvach  of  coveaaat  agaiart  hWMBinacam,  Fuller  T. 
JtDette.  9  Bam  (C  C.)  290.  Loag  r.  Moler,  5  Ohio  St.  271;  Craig  T.  Heit, 
30  Ohio  SL  550.  Codkraa  T.  Guild,  100  Mam  30;  8  Am  Rep.  298;  HOI 
110  Mam  388;  Blackie  T.  Hodaoa.  117  Mam  181.  Mitchell  r. 
F,  5  Wk.  407.  Richard  T.  Beat,  59  ID.  38;  14  Am  Rep.  1;  Almy  r. 
48  10.  45.  Shaffer  T.  Greea.  87  Pa.  St.  370.  Bloavoai  r.  Van  Court, 
34  Mo.  304;  97  Am  Dae.  412.  Reid  T.  Eppenoa,  (Mo.  App.)  122  R.  W.  353; 


313 

however,  the  conveyance  made  was  after  the  tax  bad  been  ordered 
to  be  levied,  or  the  improvement  directed  to  be  made,  but  before 
the  tax  or  assessment  had  been  placed  in  the  hands  of  the  revenue 
officers  for  eotleetion,  questions  have  been  raised  as  to  whether 
the  grantor  or  the  grantee  was  property  chargeable  therewith. 
Independent  of  statutory  construction,  the  general  rule,  supported 
by  the  weight  of  authority,  seems  to  be  that  in  such  a  ease  the  tax 

Brandt  v.  Hough  (Mo.  App.j  20*  &  W,  425;  O'O*«fl  v.  First  Parafc,  2XM 
Ma**.  US;  90X.E.  580-,  Wcghorst  v.  Clark,  (Colo.)  190  Pae.  742.  The  tax 
lien  is  a  breach  of  the  covenant  even  though  there  had  hem  an  invalid  fax 
sale  of  the  land.  In  each  ease  the  purchaser  is  subrogatod  to  the  right  of 
the  State  to  enforce  the  lien-  Seldon  v,  Jones  Cou,  S9  Ark,  294;  11*  S.  W. 
217,  An  express  provision  in  the  contract,  created  in  1910,  that  the  pur- 
chaser should  pay  the  taxes  for  that  year,  is  not  to  he  controlled  by  a 
receipt  for  the  earnest  money  and  an  escrow  deed  showing  that  the  property 
was  to  be  conveyed  free  of  inenmbnuwes,  Colby  v,  Keene,  94  Wash,  ISf ; 
14*  Pae.  309,  Taxes  or  •iwimrnMiifin  vpon  the  granted  premises  pajvble  by 
the  grantor  are  breaches'  as  well  of  a  covenant  against  inevmbrances  created 
by  himself,  as  of  a  general  covenant  against  inenmbrances,  Devine  v,  Bawle, 
(Pa.  St.*  23  AtL  Bep.  1119,  Ifflot  v.  Beed,  (Mont.)  29  Pae.  343.  A  better- 
ment tax  lawfully  assessed,  is  a  breach,  of  the  covenant  against  ineandmnces. 
Folev  v.  City  of  Harerbfll,  144  Mase.  352;  11  X.  E.  Bep.  554;  Simaaovica  v. 
Wood,  145  Mass,  190;  13  X.  E.  Bep.  391.  &mta  v.  Abngton  Sav,  Bank,  171 
Mam.  178;  50  X.  EL  545.  An  unpaid  municipal  daim  for  water  pipe,  not 
entered  of  record  so  as  to  preserve  its  lien,  is  no  breach,  of  the  covenant. 
Stutt  v.  Building  Association,  12  Pa.  Co.  Ct.  Bep.  344,  In  IngalOs  v.  Cooke, 
21  Iowa,  5*O,  it  was  held  that  a  mortgagor  is  not  liable  for  taxes  assessed 
upon  the  property,  after  the  mortgage  was  executed^  Ouc,  JT.,  dimffniing. 
This  decision  is  at  least  on&ctioaable.  A  mortgage  is  a  mere  security  for  the 
payment  of  money,  and  does  not  operate  a  change  of  title  or  ownership, 
(1  Jones  Mortg.  g  11;  Bawle  Covts.  for  Title  [5ta  ed.1,  f  218;  Stanard  v. 
Eldridge,  1*  Johns  [X.  Y.]  254),  and  the  duty  to  pay  the  taxes  would,  there- 
f ore,  seem  to  devolve  upon  the  mortgagor,  otherwise  be  might  suffer  tike 
premises  to  be  sold  for  taxes,  purchase  them  himself,,  and  acquire  the  estate 
discharged  of  toe  mortgage,  which  would  contravene  the  rule  that  the  owner 
of  lands  subject  to  lien  cannot  permit  them  to  be  sold  for  taxes,  and  then 
obtain  a  lax  deed  for  the  purpose  of  catting  off  such  lien.  See  Jones  v.  Davis, 
24  Wis.  229;  Smith  v.  Lewis,  20  Wis.  350;  Bassett  v.  Welch,  22  Wi&  175. 
The  liability  of  a  pew  in  a  church  recently  built,  to  be  assessed  for  further 
building  expenses  incurred  after  the  pew  had  been  conveyed  with  covenants 
against  inenmbrances,  is  not  an  incnmbrance  for  which  the  grantor  is  re- 
sponsible, and  such  an  assessment  is,  therefore,  no  breach  of  the  covenant 
against  ineumbrances.  Spring  v.  Tongue,  9  Mass.  28;  *  Am.  Dee.  21. 

Tax  liens  are   covered  by  the  statutory  covenant   against   incumbranees 
implied  from  the  words  "grant"  or  "convey."     BnUitt  v.   Coryefl,    (Tex. 

40 


314  MAKKETAHLE    TITLE    TO    KEAL    ESTATE. 

relates  back  and  becomes  a  lien  as  of  the  time  when  the  assess- 
ment roll  was  made  up,  or  the  improvement  ordered  to  be  made, 
and  that  in  such  a  case  the  existence  of  the  inchoate  tax  or  assess- 
ment ojierates  a  breach  of  the  grantor's  covenant  against  iucum- 
brances.0  But  where  a  statute  provides  that  all  taxes  and  assess- 
ments shall  become  liens  upon  a  certain  day  of  the  year,  a  tax  or 
assessment  levied  or  ordered  before  that  day,  will  not  constitute  a 
breach  of  the  covenant,  in  a  deed  executed  in  the  interval  between 

Civ.  A  pp. )  84  S.  W.  482.  Special  assessments  for  street  improvements  are 
not  "taxes,"  within  the  meaning  of  an  exception  from  the  operation  of  a 
covenant  against  incumbrances.  Cleveland  Park  L.  &  I.  Co.  v.  Campbell,  65 
Mo.  App.  109.  Knight  v.  Clinkscalea,  51  Okl.  508;  152  Pac.  133.  A  covenant 
of  "  seisin  "  in  a  deed  is  'not  broken  by  the  existence  of  a  tax  deed  to  the 
property,  executed  two  months  after  the  execution  of  the  covenant,  though 
the  tax  certificate  existed,  when  the  covenant  was  executed.  Lerfing  v.  Seelig, 
14  S.  Dak.  303;  85  NT.  W.  585.  An  assessment  lien  which,  if  valid,  would 
have  constituted  a  breach  of  the  covenant  against  incumbrances,  was  declared 
unconstitutional,  whereupon  another  assessment  for  the  -same  improvement, 
but  under  another  statute,  was  made.  Held,  that  the  lien  of  the  second 
assessment  did  not  constitute  a  breach  of  the  covenant  against  incumbrances. 
Barth  v.  Ward,  71  N.  Y.  Supp.  340;  63  App.  Div.  193. 

"Cochran  v.  Guild,  100  Mass.  30;  8  Am.  Rep.  296.  De  Peyster  v.  Murphy, 
fi6  X.  Y.  622.  Sanders  v.  Brown,  65  Ark.  498;  47  S.  W.  461.  Cotting  v.  Com- 
monwealth, 205  Mass.  523;  91  N.  K.  900.  The  liability  of  the  premises  to  an 
assessment  for  the  expense  of  building  a  sewer,  is  an  incumbrancc  from  the 
time  of  the  order  for  the  construction  of  the  sewer,  and  is,  therefore,  a  broach 
of  a  covenant  against  incumbrances  in  a  deed  delivered  before  the  assess- 
ment was  laid,  but  after  the  order  was  passed.  Carr  v.  Dooley,  119  Mass. 
294.  In  LafTerty  v.  Milligan.  165  Pa.  St.  534;  30  Atl.  Rep.  1030,  certain 
street  improvements  were  made  under  an  act  afterwards  held  unconstitu- 
tional. A  curative  art  was  passed  validating  the  improvements,  and  it  wan 
held  that  assessments  therefor  constituted  a  breach  of  a  covenant  against 
incumbrances  in  a  deed  executed  after  the  passage  of  the  curative  act,  though 
at  the  time  of  the  execution  of  the  deed  the  exact  amount  to  be  assessed 
upon  the  property  had  not  been  fixed.  In  Katon  v.  Chesbrough,  82  Mich. 
214;  46  N.  W.  Rep.  365,  it  was  held  that  under  a  city  charter  making  taxes 
a  Hen  upon  real  estate,  without  fixing  a  time  when  such  lien  shall  attach, 
Mich  taxes  become  a  Hen  from  the  time  the  assessment  roll  passed  into  the 
hands  of  the  tax  collector,  that  is,  on  the  first  day  of  July;  so  that  taxes 
for  tho  year  1R89  aMscsscd  upon  a  city  lot,  constituted  a  breach  of  a  covenant 
agaitiNt  i iu  umbrancf*  in  a  conveyance  of  such  lot  executed  and  delivered  in 
the  afternoon  of  the  1st  day  of  July,  1SOO,  in  pursuance  of  a  contract  of 
Mile  made  on  the  22d  day  of  May.  1890.  The  defendant  (vendor)  contended, 
among  other  things,  that  the  covenant  against  incumbrances  related  back  to 
the  date  of  the  contract  (May  twenty-second),  and  that  there  being  no  con- 
summated tax  Hen  at  that  time,  the  covenant  was  not  broken,  but  this  con- 


COVENANT    AGAINST    INCUMBRANCES.  315 

the  date  of  the  levy  and  the  date  on  which  the  tax  became  a  lien.63 
In  such  a  case,  where,  by  the  terms  of  the  contract  made  three 
months  before  December  31st,  the  day  when  taxes  became  a  lien, 
a  deed  was  not  to  be  made  until  after  that  date,  the  vendor  mean- 
time remaining  in  possession,  it  was  held  that  the  covenant  against 
incumbrances  in  the  deed  so  executed,  was  broken  by  the  lien  for 
taxes  which  attached  on  December  31st.  The  vendor  in  such  case 
was  regarded  as  practically  the  owner  until  the  deed  was  delivered 

tention  was  denied  by  the  court.  Under  a  statute  providing  that  a  ditch 
assessment  should  be  a  lien  on  the  property  benefited,  it  was  held  that  the 
lien  attached  when  the  assessment  was  made,  and  constituted  a  breach  of 
covenant  against  incumbrances  in  a  conveyance  of  the  premises,  though  the 
tax,  because  not  spread  upon  the  assessment  roll,  could  not  have  been  paid 
until  after  the  conveyance.  Lindsay  v.  Eastwood,  72  Mich.  336;  40  N.  W. 
Rep.  455.  In  Wisconsin  it  is  provided  by  statute  that  where  land  is  conveyed 
after  the  assessment  but  before  warrant  for  collection  of  the  tax  is  issued, 
the  grantee  shall  be  liable  for  such  tax.  This  statute  has  been  held  appli- 
cable only  to  the  tax  of  the  year  in  which  the  conveyance  was  made.  Peters 
v.  Meyers,  22  Wis.  602.  In  Missouri  it  is  held  that  the  mere  order  for  a  tax 
or  assessment,  though  the  amount  which  the  owner  is  to  pay  be  not  ascer- 
tained, is  an  incumbrance  which  will  entitle  the  grantee  to  damages  if  he 
has  had  the  use  and  enjoyment  of  the  premises.  Barnhart  v.  Hughes,  46 
Mo.  App.  318.  Under  a  statute  providing  that  an  assessment  for  a  street 
improvement  shall  be  a  lien  from  the  time  of  the  completion  of  the  improve- 
ment, a  covenant  against  incumbrances  in  a  deed  executed  after  the  completion 
of  the  improvement  but  before  levy  of  the  assessment,  is  broken.  Hartshorn 
V.  Cleveland,  (N.  J.)  19  Atl.  Rep.  974.  In  Carey  v.  Gundlefinger,  12  Ind.  App. 
645;  40  N.  E.  1112  and  Kimberlin  v.  Templeton,  55  Ind.  App.  155;  102  N.  E. 
160,  it  was  held  that  street  and  sewer  assessments  made  after  the  execution 
of  the  contract,  were  not  incumbrances  on  the  property  within  the  intent 
of  a  covenant  against  incumbrances  in  the  deed  executed  and  delivered  before 
the  assessments  became  a  lien.  The  covenant  is  broken  if,  at  the  time  of 
the  conveyance  to  the  purchaser,  the  report  of  the  assessment  commissioners 
is  on  file.  Pierse  v.  Bronnenburg,  40  Ind.  App.  662 ;  82  N".  E.  126.  Special 
assessments  declared  void  but  subseqently  relevied,  do  not  relate  back  to 
the  original  levy  so  as  to  come  within  a  covenant  against  incumbrances 
entered  into  between  the  first  levy  and  the  relevy.  Armstrong  v.  Trust  Co., 
96  Kan.  722;  153  Pac.  507. 

63 Bradley  v.  Dike,  (X.  J.  Eq.)  32  Atl.  Rep.  132.  Bowers  v.  Real  Est.  Co., 
28  R.  I.  365;  67  Atl.  521.  Thus,  in  Tull  v.  Royston,  30  Kans.  617,  a  statute 
provided  that  taxes  and  assessments  should  be  liens  from  the  first  day  of 
November  in  the  year  in  which  they  were  levied.  Hereunder  it  was  held  that 
an  assessment  for  a  street  improvement  became  a  lien,  not  from  the  time 
the  improvement  was  authorized,  but  from  the  time  the  assessment  became 
due  and  payable,  and  that  a  covenant  against  incumbrances  executed  in  the 
interim  was  not  broken  by  such  assessment.  See,  also,  Overstreet  v.  Dobson, 


310  MARKETABLE    TITLE    TO    REAL    ESTATE. 

and  jxjssession  given.'4  In  the  case  of  a  statute  which  provided 
that  taxes  should  become  a  lien  on  the  land  on  the  first  Monday 
of  March  in  each  year,  it  was  held  that  a  covenant  against  incum- 
hrances  contained  in  a  deed  executed  on  March  25,  1897, 
embraced  taxes  assessed  to  the  grantor  for  the  fiscal  year  beginning 
July  1,  1897.65  In  Xew  York  the  rule  is  that  until  the  amount 
of  a  tax  is  ascertained  and  determined  in  the  manner  provided  by 
law  no  lien  attaches.  Therefore,  where  an  assessment  had  been 
made  prior  to  the  execution  of  a  deed,  but  the  amount  of  the  tax 
was  not  calculated  and  fixed  by  the  authorities  until  after  the 
deed  was  executed,  it  was  held  that  there  was  no  breach  of  the 
covenant  against  incumbrances.6' 

28  Ind.  256.  Long  v.  Mwler,  5  Ohio  St.  272.  Warfleld  v.  Erdman,  19  Ky. 
Law  R.  1559;  43  S.  W.  Rep.  708;  Everett  v.  Marston,  186  Mo.  587;  85  S.  W. 
Rep.  540.  In  Everett  v.  Dilley,  (Kana.)  7  Pac.  Rep.  661,  it  was  said  that 
in  the  absence  of  special  agreement  the  law  determines  which  party  shall 
pay  taxes  accruing  while  the  purchase  money  remains  unpaid,  which  is  as 
much  as  to  say  that  the  tax  follows  the  land,  and  that  the  person  who  is  in 
equity  the  owner  at  the  time  of  the  imposition  of  the  tax  must  pay  it.  In 
Nebraska  a  vendor  selling  after  April  first  in  any  year  is,  by  statute,  liable 
for  the  Caxes  of  that  year.  McClure  v.  Campbell,  (Xeb.)  40  N.  W.  Rep.  595. 
In  Colorado,  a  grantor  conveying  between  May  1st  and  the  following  January 
1st,  pays  the  tax  assessed  for  the  current  tax  year.  Rambo  v.  Armstrong, 
45  Colo.  124;  100  Pac.  5^6.  Where  the  contract  required  the  vendor  to  pay 
all  taxes  except  those  "  not  now  due  and  payable,"  he  was  not  required  to 
pay  special  tax  bills  which,  while  a  lien  at  the  time  of  the  contract,  were  not 
at  that  time  cnforciblc.  Swanson  v.  Spencer,  117  Mo.  App.  124;  163  S.  W. 
286, 

••  Xungesaer  v.  Hart,  122  Iowa,  647 ;  08  N.  W.  Rep.  505. 

*M«-I»ike  v.  H.-at ..ii,  131  Cal.  109;  63  Pac.  Rep.  179. 

*•  l.»t ln-r-  v.  Keogh,  100  X.  Y.  583,  distinguishing  De  Peyster  v.  Murphy,  66 
X.  Y.  622,  and  Barlow  v.  St.  Xicholas  Bank,  63  X.  Y.  399;  20  Am.  Rep.  547; 
McLaughlin  v.  Miller.  124  X.  Y.  510;  26  X.  E.  Rep.  1104;  People  v.  Gilon,  24 
Abb.  X.  C.  (N.  Y.)  125;  9  X.  Y.  Supp.  212,  563;  S.  C.,  56  Hun  (X.  Y.),  641. 
An  elaborate  note  on  the  successive  steps  in  the  incidence  of  taxation,  and 
the  time  at  which  taxes  became  a  lien  on  real  estate,  will  be  found  in  24  Abb. 
X.  C.  (X.  Y.)  130.  Sec  also,  Doonan  v.  Killilea,  222  X.  Y.  399;  118  X.  E. 
H51.  Where  a  statute  provides  that  estimates  for  a  proposed  street  improve- 
ment -hull  IK-  made  from  time  to  time,  and  the  same  shall  constitute  a  lien 
on  the  adjoining  premises,  estimates  made  after  execution  of  a  conveyance 
constitute  no  breach  of  a  covenant  against  incumbrances  therein,  though  the 
contract  for  the  improvement,  had  been  let  before  the  deed  was  executed. 
I^ngmlale  v.  NirkUus,  38  Ind.  289.  The  mere  entry  of  land  in  an  assess 
ment  roll  does  not  constitute  an  incumbrance  thereon,  and  the  subsequent 


COVENANT    AGAINST    INCUMBEANCES.  317 

In  Washington  it  is  held,  as  between  grantor  and  grantee, 
that  a  local  improvement  assessment  does  not  become  a  lien,  so 
as  to  constitute  a  breach  of  a  covenant  against  incumbrances, 
until  after  the  assessment  roll  is  placed  in  the  hands  of  the 
proper  officer  for  collection.67  Taxes  assessed  after  the  execution 
of  a  deed,  which  do  not  relate  back  to  a  time  prior  to  the  execution 
of  the  deed,  are,  of  course,  no  breach  of  the  covenant.68 

assessment  or  levy  of  a  tax  thereon  is  not  a  breach  of  a  covenant  against 
incumbrances  in  a  deed  executed  after  completion  of  the  assessment  roll,  but 
before  levy  of  the  tax.  Barlow  v.  St.  Nicholas  Nat  Bank,  63  N.  Y.  399 ;  20 
Am.  Rep.  547,  distinguishing  Rundell  v.  Lakey,  40  N.  Y.  513.  The  liability 
to  assessment  for  a  local  improvement  is  no  lien  until  the  amount  thereof  has 
been  fixed  and  determined.  Therefore,  where,  before  the  execution  of  a  deed 
with  covenant  against  incumbrances,  the  work  of  paving  a  street  on  which 
the  granted  premises  abutted  had  been  completed,  but  no  proportion  of  the 
cost  was  assessed  against  such  premises  until  after  the  deed  was  executed,  it 
was  held  that  there  was  no  breach  of  a  covenant  against  incumbrances  in  such 
deed.  Harper  v.  Dowdney,  113  N.  Y.  644;  21  N.  E.  Rep.  63.  Hastings  v. 
Land  Imp.  Co.,  61  N.  Y.  Supp.  998;  46  App.  Div.  609.  Where  an  assessment 
for  benefits  has  not,  at  the  time  of  a  conveyance,  been  entered  and  confirmed 
as  required  by  statute  to  make  it  a  lien  on  the  benefited  premises,  it  will  not 
operate  a  breach  of  a  covenant  against  incumbrances  in  such  conveyance. 
Dowdney  v.  Mayer,  54  N.  Y.  186.  Real  Est,  Corp.  v.  Harper,  174  N.  Y.  123; 
66  N.  E.  Rep.  660.  Under  the  New  York  rule  the  burden  devolves  upon  the 
purchaser  to  show  that  the  amount  of  the  tax  or  assessment  had  been  legally 
ascertained  and  determined  at  the  time  the  covenant  was  made.  McLaughlin 
v.  Miller,  124  N.  Y.  510;  26  N.  E.  Rep.  1104.  The  right  of  a  city  to  demand 
payment  for  the  cost  of  laying  water  pipes  in  a  rural  district  from  users 
after  the  district  becomes  urban,  is  not  a  "  tax-lien,  claim,  or  incumbrance  " 
within  the  meaning  of  a  contract  of  sale.  Gilham  v.  Real  Est.,  etc.,  Co.,  203 
Pa.  St.  24 ;  32  Atl.  Rep.  85.  The  covenant  against  incumbrances  is  not  broken 
by  an  assessment  levied  on  the  property  but  not  "  wholly  confirmed "  and 
entered  on  t*he  record  of  assessments  until  after  the  conveyance,  though  the 
assessment  proceedings  were  begun  prior  thereto.  Real  Est.  Corp.  v.  Harper, 
74  N.  Y.  Supp.  1065;  70  App.  Div.  64.  Charges  for  installation  of  a  water 
meter,  being  by  statute  a  lien  on  the  premises,  are  within  a  covenant  against 
incumbrances,  though  not  entered  on  the  books  of  the  water  register  until 
after  the  execution  of  the  deed.  Cuba  v.  Duskin,  120  N.  Y.  Supp.  381;  135 
App.  Div.  508;  95  N.  E.  1126. 

«7Knowles  v.  Temple,  49  Wash.  595;  96  Pac.  1  and  Flajole  v.  Schulze,  80 
Wash.  483;  141  Pac.  1026,  disapproving  Green  v.  Tidball,  26  Wash.  338;  67 
Pac.  84;  55  L.  R.  A.  879. 

•*  Lathers  v.  Keogh,  109  N.  Y.  583;  17  N.  E.  Rep.  131.  Lindenberger  v. 
Rowland,  158  Ky.  760;  166  S.  W.  242;  Taylor  v.  Harvey,  90  Neb.  562;  134 


318  MARKETABLE    TITLE    TO    REAL    ESTATE. 

An  agreement  to  pay  assessment  liens  existing  at  a  specified 
date,  cannot  be  construed  to  include  liens  possible  only  under 
legislation  subsequent  to  tbat  date.69  Taxes  are  none  tbe  less 
incumbrances  in  that  they  constitute  a  personal  liability  of  the 
grantor,  and  may  be  collected  otherwise  than  by  a  sale  of  the 
land.70  Xor  because  they  are  invalid,  if  the  land  be  liable  to 
reassessment.71  Such  reassessment  will  relate  back  to  the  entry 
of  the  land  on  the  original  assessment  roll.78  The  grantee,  com- 
plaining of  a  tax  or  assessment,  must  show  that  it  was  a  valid 
and  subsisting  lien  when  the  deed  was  executed.  He  must  show 
that  the  proceedings  were  regular,  and  that  everything  was  done 
necessary  to  make  the  tax  or  assessment  valid.73  The  same  evi- 
dence is  required  of  him  in  this  respect  as  if  he  were  a  purchaser 
at  a  sale  to  enforce  the  tax  lien,  and  was  asserting  his  title  in 
ejectment.74  If  the  tax  was  voluntarily  paid  by  the  grantee  with- 
out previous  demand  on  the  grantor,  the  latter  may  show  that  the 
tax  was  invalid.75 

X.  W.  173;  Cotting  v.  Commonwealth,  205  Mass  523;  91  N.  E.  900;  First 
Church  Etc.  v.  Cox,  47  Ind.  App.  541;  94  N.  E.  1048;  Blivis  v.  Franklin 
Inv.  Co.,  197  Mo.  App.  369;  1»4  8.  W.  1078;  Patchell  v.  Garvin,  (Okl.)  168 
Pac.  423. 

•Campbell  v.  Haven,  211  Mass.  121;  97  X.  E.  611. 

"Coehran  v.  Guild,  106  Mass.  29;  8  Am.  Rep.  296.  The  same  ru!e  has 
l»een  applied  where  the  tax  was  assessed  after  the  execution  of  a  contract  of 
sale,  but  before  the  execution  of  a  conveyance  of  the  premises.  Gheen  v. 
Harris,  170  Pa.  St.  644;  32  Atl.  Rep.  1094. 

11  Peter*  v.  Meyers,  22  Wis.  602. 

"Colburn  v.  Litchfield,  134  Mass.  449.     Cadmus  v.  Fagan,  47  N.  J.  L.  549. 

"Patterson  v.  Yancey,  81  Mo.  379.  Robinson  v.  Murphy,  33  Ind.  482; 
Kirkpatrick  v.  Pearee,  107  Ind.  520.  Mitchell  v.  Pillsbury,  5  Wis.  410. 
White  v.  Gibnon,  146  Mich.  547:  109  N.  W.  1049.  But  see  Voorhis  v.  Forsyth, 
4  HIM.  (C.  C. )  409,  where  it  was  held  unnecessary  to  aver  that  the  tax  was 
valid,  such  being  the  prima  fade  presumption.  Where  A.  bought  land  of  B. 
in  a  city.  B.  having  previously  unlawfully  connected  a  sewer  on  the  land  with 
a  public  sewer,  no  right  so  to  u»e  the  sewer  paraed  by  implication,  and  A. 
having  been  compelled  to  pay  the  city  a  fee  for  connecting  the  sewer,  could 
not  ret-over  the  amount  thereof  on  B.'s  warranty  against  incumbrances.  such 
fee  not  being  a  lic-n  on  the  premise*  in  favor  of  the  city.  Humstead  v.  Cook, 
189  Man*.  410;  48  N.  E.  Rep.  767. 

"Kennedy  v.  Xewman,  1  Kandf.  (N.  Y.  8.  C.)   187. 

'•Balfour  v.  Whitman,  89  Mich.  202;  50  X.  W.  Rep.  744. 


COVENANT    AGAINST    INCU.MBUAXCES.  319 

The  contention  that  the  tax  lien  is  not  a  breach  of  the  covenant 
until  the  tax  has  become  delinquent,  is  untenable.76 

In  England,  a  land  tax  is  not  deemed  an  incumbrance,  because 
it  is  supposed  to  have  been  contemplated  by  the  parties;  and  if 
nothing  is  said  upon  the  subject,  the  purchaser  will  take  the  estate 
subject  to  the  liability  of  the  tax.77 

The  special  assessments  for  improvements  will  not  be  deemed 
a  breach  of  the  covenant  if  the  improvement  is  one  which  adds 
to  the  value  of  the  property.78 

Drainage  assessments,  it  has  been  held,  are  "  public  charges  " 
growing  out  of  a  benefit  to  the  land,  and  do  not  constitute  a  breach 
of  the  covenant  against  incumbrances.79 

§  125.  Outstanding  estate  or  interest  in  the  premises.  An 
outstanding  estate  or  interest,  less  than  a  fee,80  in  the  granted 
premises  is  an  incumbrance,  and,  therefore,  operates  a  breach  of 
the  covenant  against  incumbrances ; 81  such,  for  example,  as  the 
right  in  a  stranger  to  enter  upon  the  premises  and  cut  and  remove 
timber  therefrom,82  or  a  prior  sale  of  "  all  the  iron  and  coal  "  on 
the  granted  land,  with  right  of  way  and  privilege  of  removal ; 83  or 

'"Lowe  v.  Warehouse  Co.,  39  Utah  395;  117  Pac.  874;  Ann.  Cas.  1913  E. 
246. 

77 1  Sugd.  Vend.   (8th  Am.  ed.)   487. 

"Cornelius  v.  Kronvminga,  179  Iowa  712;  161  N.  W.  625. 

79  Pate  v.  Banks  (N.  C.)    100  S.  E.  251. 

80  The  fact  that  the  fee  is  outstanding,  while  a  breach  of  the  covenant  of 
seisin,  is  no  breach  of  the  covenant  against  incumbrances.    Huron  v.  Stratton, 
120  Ala.  145;  23  So.  Rep.  81.    Tex  &  Pac.  Ry.  Co.  v.  El  Paso  Ry.  Co.   (Tex. 
Civ.  App.),  156  S.  W.  561.     But  see  Morris  v.  Short    (Tex.   Civ.  App.)    151 
S.  W.  633 ;  where  it  was  held  that  a  "  paramount  outstanding  title  "  operates 
a  breach  of  that  covenant. 

"Jenkins  v.  Buttrick,   1  Met.    (Mass.)    480. 

82  Spurr  v.  Andrews,  6  Allen  (Mass.),  420.  Cathcart  v.  Bowman,  5  Pa.  St. 
317.  Clark  v.  Ziegler,  79  Ala.  346;  85  Ala.  154;  4  So.  Rep.  669.  Gates  v. 
Parmly,  93  Wis.  294 ;  66  N.  W.  Rep.  253.  Kreinbring  v.  Mathews,  81  Oreg. 
243;  159  Pac.  75.  But  in  Southwest  Va.  Min.  &  L.  Co.  v.  Chase,  95  Va.  50, 
27  S.  E.  Rep.  826,  it  was  held  that  purchasers  who  accepted  a  warranty  deed 
with  notice  that  standing  timber  on  the  land  had  been  conveyed  to  a  third 
party,  thereby  waived  any  claim  to  an  abatement  of  the  purchase  money  in 
the 'future.  In  Lumpkin  v.  Blewitt  (Tex.  Civ.  App.)  Ill  S.  W.  1072,  it  was 
held  that  the  covenant  was  not  broken  until  the  grantee's  possession  of  the 
timber  had  been  affected  by  the  prior  conveyance. 

M  Stanbaugh  v.  Smith,  23  Ohio  St.  584.  Ibbetson  v.  Knodle,  201  111.  App. 
373. 


ol20  .MARKETABLE    TITLE    TO    REAL    ESTATE. 

the  right  to  enter  on  the  land  and  take  oil  and  asphalt  therefrom ; 84 
or  the  statutory  right  to  redeem  from  a  mortgage  sale.85  So  also 
an  interest  in  the  premises  in  favor  of  a  third  person,  who  holds 
as  a  tenant  in  common,  is  an  incumbrance.88  But  an  adverse 
equitable  claim  to  the  premises  is  not  an  incumbrance;87  nor  is 
a  prior  deed  to  the  premises,  where  such  deed  is  unenforcible 
and  void;88  nor  is  an  unlawful  encroachment,  by  an  adjoining 
owner,  on  the  property  conveyed.89  The  better  opinion  seems  to 
be  that  a  condition  which  may  work  a  forfeiture  of  the  estate 
granted,  or  a  contingency  upon  which  the  estate  is  liable  to  be 
determined  in  the  hands  of  the  purchaser,  amounts  to  a  breach 
of  the  covenant  against  incumbrances,90  such,  for  example,  as 
a  provision  in  the  deed  that  only  buildings  of  a  certain  kind 
should  be  erected  on  the  premises  conveyed,  with  reversion  to 
the  grantor  in  case  of  a  breach  of  the  condition.91 

The  covenant  against  incumbrances  is  broken  by  the  existence 
of  an  outstanding  term  of  years  in,  or  lease  of,  the  granted  prem- 
ises.'2 But  where  the  conveyance  is  taken  with  knowledge  that 

"Flood  v.  Graham.  01  Fla.  207;  54  So.  456;  Ann.  Cas.  1912D,  1137. 

16  Roy  v.  Martin   (Ala.)    SI  So.  142. 

"Comings  v.  Lilt  IP,  24  Pick.    (Mass.)    266. 

"Marple  v.  Scott,  41    111.  50. 

••Reed  v.  Stevens   (Conn.)    107  All.  495. 

"Ratoewirz  v.  Kara,  88  X.  J.  Eq.  201  ;   103  Atl.  912. 

•"((KH.KY,  .!..  in  Post  v.  Campau,  42  Mich.  90,  citing  Jenks  v.  Ward,  4 
Mctc.  (Mass.)  412.  A  possibility  may  be  an  incumhrance.  Sir  F.  Moore's 
Hep.  240,  pi.  3H3;  Haverington's  Case,  Owen,  0.  In  Van  Rensselaer  v. 
Kearney,  11  How.  (U.  S.)  316,  it  was  contended  by  counsel,  argtirntlo,  that 
an  estate  in  expectancy  outstanding  is  an  incumbrance  on  the  land,  citing 
14  Vin.  Abr.  352,  tit.  Encumbrance  H.  Sugden  Vend,  (old  ed.)  527,  S  9.  In 
Estahrook  v.  Smith,  6  Gray  (Mass.),  572;  60  Am.  Dec.  443,  it  was  held  that 
a  condition  in  a  deed  that  the  grantee  (plaintiff'*  vendor)  should  build  a 
hou«>  on  the  premises  within  a  year  from  the  date  of  the  deed  was  not  an 
incumbrance. 

"Locke  v.  Hale,  165  Mass.  20;  42  X.  E.  Rep.  331. 

"Crow*  v.  Noble,  67  Pa.  St.  74,  77;  Dech'n  Appeal,  57  Pa.  St.  467.  Pease 
v.  Christ.  31  X.  V.  141;  Giles  v.  Dugro,  1  Duer  (X.  Y.),  331.  Taylor  v. 
Heitr.,  87  Mo.  660.  Edwards  v.  Clark,  83  Mich.  246;  47  X.  W.  Rep.  112. 
Fritz  v.  Puwy,  31  Minn.  368;  18  X.  \V.  Rep.  94.  Porter  v.  Bradley.  7  R.  I. 
638.  Grice  v.  Scarborough,  2  Spear  L.  (S.  C.)  649;  42  Am.  Dec.  391.  Clark 
v.  Flutter,  54  Kim*.  403;  38  Pac.  Rep.  493;  Smith  v.  Davis,  44  Kani.  362; 
24  Pac.  Rep.  428.  Brass  v.  Vandecar,  (Xeb.)  96  X.  W.  Rep.  1035.  An  out- 
»tanding  lease  of  the  premises  in  an  incumbrance  entitling  the  grantee  to 


COVENANT    AGAIXST    INCUMBRANCES.  321 

the  land  is  in  the  possession  of  a  lessee,  the  existence  of  the  lease 
will  not,  under  a  statute  transferring  the  constructive  possession 
to  the  grantee  without  attornment  by  the  tenant,  operate  a  hreach 
of  the  covenant ; 93  nor,  it  is  apprehended,  independently  of  any 
statute,  where  there  is  an  actual  attornment  by  the  tenant,  or  an 
apportionment  of  the  rent  between  the  parties.94  And  generally 
it  may  be  said  that  if  the  purchaser  knows  that  the  premises  are  in 
the  possession  of  a  tenant,  and  no  special  contract  is  made,  the 
occupant  will  become  tenant  to  the  purchaser,  and  there  will  be 
no  breach  of  the  covenant  against  incumbrances.95  Nor  will  the 
covenant  be  broken  if  the  purchaser  accepts  an  assignment  of  the 
lease ; 96  nor  if  the  lease  was  void  as  to  the  grantee  for  want  of 
record ;  ^  nor  if  the  conveyance  of  the  fee  be  made  expressly  sub- 
ject to  the  lease;  in  such  a  case  the  rent  is  an  incident  to  the 
reversion,  and  passes  with  it.98  An  outstanding  life  estate  in  a 

damages,  if  he  bought  the  property  for  speculation,  and  the  grantor  was 
aware  of  that  purpose.  Batchelder  v.  Sturgis,  3  Gush.  (Mass.)  201.  An 
agreement  that  in  a  certain  event  the  lessee  shall  have  a  further  term  in  the 
demised  premises,  is  no  incumbrance.  Weld  v.  Traip,  14  Gray  (Mass.)  330. 
Barker  V.  Denning,  91  Kan.  485;  138  Pac.  573;  O'Connor  v.  Enos,  56  Wash. 
448;  105  Pac.  1039;  Estep  v.  Bailey,  (Oreg.)  185  Pac.  227;  Morriss  v.  Hesse 
(Tex.  Civ.  App.)  210  S.  W.  710;  Simonds  v.  Diamond  Match  Co.,  159  Mich. 
241;  123  N.  W.  1132;  Crawford  v.  McDonald,  84  Ark.  415;  106  S.  W.  206. 

^Kellum  v.  Berkshire  Life  Ins.  Co.,  101  Ind.  455.  Ream  v.  Goslee,  21  Ind. 
App.  241;  52  N.  E.  Rep.  93.  The  rule  stated  in  the  text  was  approved  in 
Demars  v.  Koehler,  60  N".  J.  L.  314;  38  Atl.  Rep.  808.  But  this  decision  was 
reversed  on  appeal  (62  N.  J.  L.  203;  41  Atl.  Rep.  720),  the  court  reaching 
the  conclusion  that  the  right  to  recover  for  the  breach  was  not  affected  by 
notice  of  the  existence  of  the  lease,  mainly  upon  the  ground  that  in  Xew 
Jersey  parol  evidence  is  not  admissible  to  vary  the  effect  of  the  covenant. 

94Rawle  Covts.  for  Title  (5th  ed.),  §  78.    Haldane  v.  Sweet,  55  Mich.  196. 

95Lindley  v.  Dakin,  13  Ind.  388;  Page  v.  Lashley,  15  Ind.  152.  Mann  v. 
Montgomery,  6  Cal.  App.  646;  92  Pac.  875;  Richardson  v.  Brewer,  71  Wash. 
192;  127  Pac.  1098;  Musial  v.  Kudlik,  87  Conn.  164;  87  Atl.  551;  Ann.  Cas. 
1914  D,  1172.  In  Edwards  v.  Clark,  83  Mich.  246;  47  N.  W.  Rep.  112,  it 
was  said  that  there  would  still  be  a  breach  of  the  covenant,  notwithstanding 
the  acceptance  of  rent,  but  that  the  amount  so  accepted  must  be  deducted 
from  the  damages  for  the  breach. 
'"Gale  v.  Edwards,  52  Me.  363. 

91  Hampton  Park  Co.  v.  Scottile,  102  S.  C.  372;  86  S.  E.  1066. 

98 Pease  v.  Christ,  31  N.  Y.  141.  Spaulding  v.  Thompson,  119  Iowa,  484; 
93  X.  W.  Rep.  498. 

41 


322  MARKETABLE    TITLE    TO    REAL    ESTATE. 

stranger  is  an  incumbrance."  The  weight  of  authority  is  that 
the  covenant  is  broken  by  a  claim  for  dower  in  the  granted  prem- 
ises,1 whether  the  right  be  inchoate  and  contingent,  or  consum- 
mate by  the  death  of  the  husband.2  If  the  covenant  be  special, 
against  any  claim  for  dower  which  a  certain  person  may  set  up, 
it  will  not  be  broken  until  the  right  to  dower  has  been  perfected 
by  the  husband's  death.3  The  right  of  a  wife  to  elect  whether  she 
will  take  dower  in  lieu  of  a  jointure  or  settlement,  is  such  an 
incumbrauce  on  land  acquired  by  the  husband  after  the  settle- 
ment, as  amounts  to  a  breach  of  a  covenant  against  iucumbrances 
in  a  subsequent  conveyance  of  the  land.4  The  rule  that  the 
covenant  is  broken  by  the  existence  of  a  contingent  right  of  dower 

••Christy  v.  Ogle,  33  111.  205.  Mills  v.  Catlin,  22  Vt.  93,  semble.  See 
cases  cited  below. 

'Fishel  v.  Browning,  145  X.  C.  71;  58  S.  E.  759.  In  Allen-West  Com.  Co. 
v.  Patrick,  123  Ark.  55;  184  S.  W.  436,  it  was  held  that  there  was  no  breach 
of  the  covenant  if  there  were  other  lands  of  the  decedent  out  of  which  the 
dower  could  be  assigned. 

'Shearer  v.  Ranger,  22  Pick.  (Mass.)  447;  Jenks  v.  Ward,  4  Met.  (Mass.) 
412:  Harrington  v.  Murphy,  109  Mass.  299.  Blanchard  v.  Blanchard,  48  Me. 
174;  Donnell  v.  Thompson,  1  Fairf.  (Me.)  170;  25  Am,  Dec.  216;  Runnels 
v.  Webber,  59  Me.  490;  Smith  v.  Connell,  32  Me.  120;  Porter  v.  Xoyes,  2 
Greenl.  (Me.)  27;  11  Am.  Dec.  30.  Russ  v.  Peiry.  4!)  X.  H.  549;  Fitts  v. 
Hoitt,  17  N.  H.  530.  Carter  v.  Denman,  3-  Zab.  (X.  J.  L.)  273.  Jones  v. 
Gardiner,  10  Johns.  (X.  Y.)  26§.  Durrett  v.  Piper,  58  Mo.  551;  Henderson 
v.  Henderson,  13  Mo.  151;  Walker  v.  Deaver,  79  Mo.  664;  Ward  v.  Ashbrook. 
78  Mo.  515.  Contra,  dictum  of  STORY,  J.,  in  Powell  v.  Munson,  3  Mason 
(C.  C.),  355.  Xyce  v.  Obertz,  17  Ohio,  70;  Johnson  v.  Xyce,  17  Ohio,  C(i .  f!» 
Am.  Dec.  444.  Hutchins  v.  Moody,  30  Vt.  658,  obiter.  Bostwick  v.  Williams. 
36  111.  65,  acmble;  85  Am.  Dec.  385;  Humphrey  v.  Clement,  44  111.  299,  rti<-tnni. 
It  is  now  settled  in  Illinois  that  an  inchoate  ri»ht  of  dower  is  embraced  by  a 
covenant  against  incumbrances.  MeCord  v.  Massey,  155  111.  123;  39  N.  E. 
Rep.  wan  v.  Kane,  211  111.  527:  71  X.  K.  Rep.  1097;  Raftery  v. 

Ea*eley,  111  111.  App.  413.  In  Blevins  v.  Smith,  (Mo.)  10  S.  W.  Rep.  213,  the 
covenantee  bought  in  an  inchoate  right  of  dower  in  the  premises,  and  it  was 
held  that  he  was  not  entitled  to  damages,  there  Wing  no  menu-  of  computing 
the  value  of  the  interest.  THOMAS,  J.,  dissenting.  In  Kreiiilierg  v.  Mathow*, 
81  Oreg.  243;  159  Pac.  75,  it  is  said  that  the  outstanding  dower  right  is  a 
breach  of  the  covenant  of  *ei>in  rather  than  of  the  covenant  lijjain-t  incura- 
branri-.  in  Aiple  &  C.  Real  Est  Co.  v.  Spelbrink,  211  Mo.  c.71.  Ill  S.  W. 
480,  it  wa*  held  that  there  would  he  no  substantial  l-p-adi  of  Tin-  ...\enant 
until  tin-  do\\er  right  Wiunc  conHiimmate  by  the  death  of  the  husband. 
Meare,  9  R.  I.  106. 

«BigH.,\\    v.   HuMmrd.  !'7    Mass.   195. 


COVENANT    AGAINST    INCUMBRANCES.  323 

in  the  land  conveyed  is  not  changed  by  statutes  which  substitute 
for  dower  a  fee  simple  or  other  interest  in  a  portion  of  the  hus- 
band's lands-.5  The  grantor,  having  been  served  with  notice  of  a 
proceeding  to  establish  the  dower  right  is,  in  the  absence  of  fraud 
or  collusion,  bound  by  a  judgment  in  favor  of  the  plaintiff.6 

§  126.  Easements  or  physical  incumbrances.  An  easement  or 
servitude  to  which  the  granted  premises  are  subject,  and  which 
was  unknown  to  the  purchaser  at  the  time  of  the  conveyance,  or 
subject  to  which  he  cannot  be  reasonably  presumed  to  have  taken 
the  premises,  constitutes  everywhere  a  breach  of  the  covenant 
against  incumbrances.7  Such,  for  example,  as  a  private  right  of 
way  over  the  premises,8  a  building  restriction  running  with  the 
land,  and  binding  the  covenantee ; 9  an  obligation  to  maintain  a 

"Crowley  v.  Lumber  Co.,  66  Minn.  400;  69  N.  W.  Rep.  321. 

'Raftery  v.  Easeley,  111  111.  App.  413. 

7  See  cases  cited  in  the  notes  below. 

8 Blake  v.  Everett,  1  Allen  (Mass.),  248;  Wetherbee  v.  Bennett,  2  Allen 
(Mass.)  428;  Harlow  v.  Thomas,  15  Pick.  (Mass.)  66.  Wilson  v.  Cochran, 
46  Pa.  St.  233;  86  Am.  Dec.  574.  Richmond  v.  Ames,  164  Mass.  467;  41  1ST. 
E.  Rep.  671.  Teague  v.  Whaley,  20  Ind.  App.  26;  50  1ST.  E.  Rep.  41;  Young 
v.  Gower,  88  111.  App.  70.  Smith  v.  White,  71  W.  Va.  639;  78  S.  E.  378. 
The  purchaser's  knowledge  at  the  time  of  the  covenant,  that  there  was  a 
passway  over  the  land,  does  not  affect  his  right  to  recover,  where  he  ,did  not 
know  that  such  passway  was  an  easement  enforcible  against  the  owner  of 
the  premises.  Perry  v.  Williamson,  (Tenn.)  47  S.  W.  Rep.  189.  A  private 
right  of  way  over  the  premises  is  a  breach  of  the  covenant  for  quiet  enjoy- 
ment, though  the  covenantee  bought  with  notice  of  the  easement.  Eller  v. 
Moore,  63  X.  Y.  Supp.  88;  48  App.  Div.  403. 

•Roberts  v.  Levy,  3  Abb.  Pr.  (N.  S.)  (1ST.  Y.)  311.  Greene  v.  Creighton, 
7  R.  I.  1.  Bull  v.  Burton,  227  N.  Y.  101;  124  N.  E.  111.  A  "  condition  "  in  a 
conveyance  that  no  buildings-  shall  be  erected  on  a  particular  part  of  the  lot, 
and  that  no  buildings  of  less  than  a  certain  height  shall  be  erected  thereon, 
is  a  building  restriction  operating  a  breach  of  the  covenant  against  incum- 
brances, and  not  a  condition  -which  may  defeat  the  estate  in  case  of  a  breach. 
Ayling  v.  Kramer,  133  Mass.  12.  A  condition  that  during  a  certain  number 
of  years  only  one  house  shall  be  erected  on  the  premises,  which  shall  be  used 
for  a  dwelling  house  only,  and  by  but  one  family,  constitutes  a  breach  of  a 
covenant  against  incumbrances.  Foster  v.  Foster,  62  N.  H.  46.  A  grantor 
has  a  right  to  impose  building  restrictions,  and  they  are  valid  incumbrances. 
Coudert  v.  Sayre,  (N.  J.  Eq.)  19  All.  Rep.  190.  Whitney  v.  Railroad  Co., 
11  Gray  (Mass.),  359;  71  Am.  Dec.  715.  Building  restrictions,  and  restric- 
tions as  to  the  use  of  the  granted  premises,  whether  they  run  with  the  land 
or  not,  will  be  enforced  in  equity  against  a  purchaser,  with  notice.  Coudert 
v.  Sayre,  (1ST.  J.  Eq.)  19  Atl.  Rep.  190. 


324  MAHKKTABLK    TITLE    TO    RKAL    ESTATE. 

liivisiou  fence;10  the  right  in  a  stranger  to  maintain  a  drain 
across  the  warranted  land ;  ll  the  right  to  conduct  water  from  a 
spring  on  the  granted  premises,  through  pipes  laid  beneath  the 
surface ;  12  the  right  to  have  the  eaves  of  a  building  on  an  adjoin- 
ing lot  overhang  the  granted  premises,  so  as  to  drip  water 
thereon;13  the  right  in  an  adjoining  proprietor  to  dam  up  and 
use  the  water  of  a  stream  running  through  the  granted  premises;  u 
the  right  in  a  stranger  to  divert  the  water  from  a  stream  on  such 
premises ; 15  or  to  flow  the  premises  with  the  waters  of  a  mill 
dam ;  1S  a  restrictive  covenant  against  the  use  of  fire  arms  on  the 

"Kellogg  v.  Robinson,  0  Vt.  276;  27  Am.  Dec.  550.  Bronson  v.  Coffin.  108 
•Mass.  175;  11  Am.  Rep.  335.  Ensign  v.  Colt,  75  Conn.  Ill;  52  Atl.  Rep. 
829.  Sherwood  v.  Johnson,  28  Ind.  App.  227;  62  N.  E.  Rep.  645.  An  agree- 
ment to  maintain  a  certain  fence  upon  designated  premises,  recorded  so  as 
to  bind  a  subsequent  purchaser,  constitutes  a  breach  of  covenant  against 
incumbrances.  Burbnnk  v.  Pillsbury,  48  N.  H.  475;  97  Am.  Dec.  633.  Bui 
see  Parish  v.  Whitney.  3  Gray  (Mass.),  516,  where  it  was  held  that  a  covenant 
to  perpetually  maintain  a  division  fence,  contained  in  the  deed  under  which 
tin-  grantor  holds,  does  not  run  with  the  land,  is  not  binding  on  a  subsequent 
grantee,  and  is,  therefore,  no  breach  of  a  covenant  against  incumbrances  in 
a  conveyance  to  such  subsequent  purchaser.  Explained  in  Bronson  v.  Coffin. 
108  Mass.  186;  11  Am.  Rep.  335,  and  see  cases  there  collected,  showing  that 
such  a  covenant  in  a  deed  poll  does  run  with  the  land. 

11  Ladd  v.  Noyes,  137  Ma^s.  151.  Compare  Williams  v.  Beatty,  139  Mo. 
App.  167;  122  S.  W.  323.  In  Stuhr  v.  Butterfield,  151  Iowa  736;  130  N".  W. 
897;  36  L.  R.  A.  (N.  S.)  321,  it  was  held  that  a  public  drainage  ditch  was 
a  benefit  to  the  land,  and  hence  that  an  order  for  the  excavation  of  such  ditch 
was  not  a  breach  of  the  covenant  in  a  conveyance  of  the  land  subsequently 
executed. 

"McMullin  v.  Wooley.  2  Lans.  (N.  Y.)  394.  Melick  v.  Cross,  62  N.  J. 
KM  545;  51  Atl.  16. 

"Carbrey  v.  Willis,  7  Allen    (Mass.),  364;  83  Am.  Dec.  688. 

"Morgan  v.  Smith,  11   111.  199.     Huyck  v.  Andrews,  113  X.  Y.  81. 

"Mitchell  v.  Warner.  5  Conn.  498,  527,  06. 

"Craig  v.  Lewis,  110  Ma«s.  377;  Isele  v.  Arlington  Sav.  Bank,  135  Mass. 
142.  Patterson  v.  Sweet.  3  111.  App.  550.  Whether  known  to  the  purchaser 
at  the  time  of  the  conveyance  or  not.  Medlar  v.  Hiatt,  8  Ind.  171.  Contra. 
KuU  v.  McCune.  22  Wi«.  028;  99  Am.  Dec.  85.  The  right  of  a  mill  owner 
to  eater  on  adjoining  lands,  through  which  a  raceway  from  the  mill  passes, 
for  the  purpose  of  cleansing  such  raceway,  is  a  right  necessary  to  the  enjoy- 
ment of  hiit  easement,  which  he  would  have  independently  of  agreement  or 
prescription,  and  is,  therefore,  not  an  incumbrance  of  which  a  grantee  of  the 
premise*  traversed  by  the  raceway  can  complain.  Prescott  v.  Williams,  5 
Met.  (Mam.)  433;  39  Am.  Dec.  698.  As  to  whether  the  right  in  u  down- 
stream mill  owner  to  raise  the  water  in  his  dam  to  a  height  that  interferes 


COVENANT     AUAJXST     IXCUMBKAXCES.  325 

land;1'  the  right  to  use  an  adjoining  wall  as  a  support  for 
joists;18  the  right  to  construct  an  irrigation  ditch  across  the 
land ; 19  or  to  harvest,  ice  from  a  pond  on  the  land,  and  to  require 
the  maintenance  of  a  certain  depth  of  water  in  the  pond ; 20  or  to 
maintain  a  telephone  line  along  a  highway  opposite  the  premises 
under  grant  from  the  owner;21  or  the  release  of  a  railway  com- 
pany from  liability  for  damages  from  the  operation  of  its  road  in 
front  of  the  premises  conveyed;22  the  right  to  extract  resin  from 
trees  on  the  land.23  These,  and  other  easements  and  servitudes,24 
all  constitute  breaches  of  a  covenant  against  incumbranees,  if  the 
purchaser  had  no  notice  of  them  at  the  time  of  the  conveyance, 
and,  in  some  of  the  States,  whether  he  did  or  did  not  have  such 
notice.2"  If  the  easement  or  servitude  complained  of  consist  of  a 
mere  license,  revocable  at  the  will  of  the  licensor,  it  will  not,  of 

with  an  adjoining  up-stream  mill  owner,  see  Carey  v.  Daniels,  8  Met.  (Mass.) 
466.  An  owner  of  land  may  by  parol  waive  his  right  to  damages  against  a 
person  flowing  his  land  with  a  mill  dam ;  but  such  waiver  is  not  binding  on 
his  grantee,  and,  therefore,  constitutes  no  breach  of  his  covenant  against 
incumbranees.  Fitch  v.  Seymour,  9  Met.  (Mass.)  466. 

17Fraser  v.  Bentel,   161   Cal.  390;    119  Pac.   509;   Ann.   Cas.   1913B,   1062. 

"Kalin  v.  Cherry,  131  Ark.  49;   198  S.  W.  266. 

"Friendly  v.  Ruff,  61  Oreg.  42;   120  Pac.  745. 

^Gadow  v.  Hunholz,  160  Wise.  293;   151  N.  W.  810;  Ann.  Cas.  1917D,  91. 

"Fossume  v.  Requa,  218  N".  Y.  339;   113  N.  E.  330. 

^Tuskegee  Land  Co.  v.  Realty  Co.,    (Ala.)    49  So.  378. 

"Brodie  v.  Mortgage  Co.,   (Ala.)    51  So.  861. 

24  The  right  in  an  adjoining  owner  to  use  a  stairway  on  the  granted 
premises  is  a  breach  of  the  covenant  against  incumbranees.  McGowen  v. 
Myers,  60  Iowa,  256;  14  N.  W.  Rep.  788.  So  also,  the  right  of  a  railroad 
company  to  take  earth  and  gravel  from  the  granted  premises.  Taylor  v. 
Oilman,  25  Vt.  413.  The  right  of  a  stranger  to  enter  on  the  premises  for  the 
purpose  of  cleansing  a  drain.  Smith  v.  Sprague,  40  Vt.  43.  The  right  of  a 
canal  company  to  appropriate  the  water  in  a  stream  bounding  or  traversing 
the  premises.  Ginn  v.  Hancock,  31  Me.  42.  A  condition  that  no  ardent 
spirits  shall  be  sold  on  the  premises;  such  a  condition  is  not  invalid  as  being 
in  restraint  of  trade.  Hatcher  v.  Andrews,  5  Bush  (Ky.),  561.  The  owner 
of  a  lot  erected  a  building  thereon  with  the  stoop  extending  by  mistake  on 
an  adjoining  lot,  of  which  he  was  an  owner  in  common  witli  another.  He 
then  sold  the  house  and  lot,  and  afterwards  acquired  title  in  severally  to 
the  adjoining  lot  encroached  iipon  by  the  stoop.  Held,  that  such  acquisition 
did  not  create  an  easement  entitling  the  owner  of  the  first  lot  to  maintain 
the  stoop  on  the  second;  and  hence,  there  resulted  no  breach  of  a  covenant 
against  incumbranees  in  a  conveyance  by  the  original  owner  of  the  lot 
encroached  upon.  Farley  v.  Howard,  70  N.  Y.  Supp.  51;  60  App.  Div.  193. 

*Post,  §  127. 


326  MARKETABLE    TITLE    TO    REAL    ESTATE. 

course,  amount  to  an  incumbrance,  and  will,  therefore,  operate  no 
breach  of  the  covenant.28 

A  lease  of  a  right  to  an  adjoining  proprietor  to  use  a  wall  on  the 
granted  premises  as  a  party  wall  is  a  breach  of  the  covenant  against 
iiicumbranoes.17  So,  also,  a  wall  standing  wholly  on  one  lot  with  a 
right  in  the  adjoining  proprietor  to  use  it  creates  a  breach.28  But 
the  better  opinion  seems  to  be  that  a  wall  standing  equally  on  both 
lots,  and  held  in  common  by  the  adjoining  proprietors,  is  not  an 
incumbrance,  but  a  valuable  appurtenant  which  passes  with  the 
title  to  the  property.29  A  covenant  between  adjoining  proprietors 
that  one  may  build  a  party  wall,  and  that  the  other  shall  pay  half 
the  cost  if  he  afterwards  uses  the  wall,  runs  with  the  land  and 
binds  a  subsequent  purchaser  who  avails  himself  of  the  wall.30  In 
such  a  case,  it  is  apprehended,  that  if  the  purchaser  bought  with- 

"  Patterson  v.  Sweet,  3  111.  App.  550. 

r  Giles  v.  Dugro.  1   Duer   (X.  Y.),  331. 

"Mohr  v.  Parmelee.  43  X.  Y.  Super.  Ct.  320. 

"Hendricks  v.  Stark.  37  X.  Y.  106;  93  Am.  Dec.  949  (distinguished  in 
O'Xeill  v.  Van  Tassell,  137  X.  Y.  297;  33  N.  E.  Rep.  314,  and  Corn  v.  Bass. 
59  X.  Y.  Supp.  315)  ;  Mohr  v.  Parmelee,  43  N.  Y.  Super.  Ct.  320.  Bull  v. 
Burton.  227  X.  Y.  101;  124  X.  E.  Ill;  Cap.  City  Inv.  Co.  v.  Burnham,  143 
Iowa  134:  121  X.  W.  70S;  Percivul  v.  Colonial  Inv.  Co.,  140  Iowa  275;  11.". 
X.  W.  941;  24  L.  R,  A.  (X.  S.)  293.  In  Hoffman  v.  Dickson,  65  Wash.  556: 
118  Pac.  737;  39  L.  R.  A.  (X.  S.>  67;  Ann.  Gas.  1913B,  869,  it  was  held 
that  the  value  of  the  easement  right  of  the  one  party  could  not  be  set  off 
.iL'.nii-t  the  lien  of  the  other  party  for  one  half  of  the  cost  of  the  wall.  The 
existence  of  a  party  wall  on  the  granted  premises  is  no  -breach  of  the  cove- 
nant against  incumbrance^,  under  a  statute  authorizing  the  adjoining  owner 
at  any  time  to  build  such  a  wall  without  incurring  any  liability  to  the  owner. 
Bertram  v.  Curtis,  31  Iowa,  46.  And  where  by  statute  adjoining  proprietors 
have  the  right  to  use  division  walls  as  party  walls  no  breach  of  the  covenant 
occurs.  Barns  v.  Wilson,  116  Pa.  St.  303;  9  Atl.  Rep.  437. 

"Richardson  v.  Tobcy,  121  Mass.  457;  23  Am.  Rep.  283;  Savage  v.  Mason. 
3  C'UHh.  (Mass.)  500.  Burlock  v.  Peck,  2  Duer  (X.  Y.),  90.  Compare  Cole 
v.  Hughes,  54  N.  Y.  444;  13  Am.  Rep.  Oil.  In  Mackey  v.  Harmon,  34  Minn. 
168;  24  X.  W.  Rep.  702,  the  whole  wall  was  built  by  H.,  tinder  an  agreement 
that  he  xhotild  be  reimbursed  by  X.,  the  adjoining  owner,  if  he  should  after- 
wards join  to  the  wall.  X.  conveyed  to  the  plaintiff,  who  was  compelled  to 
pay  one-half  the  co*t  of  the  wall  in  order  to  build  to  it,  and  this  was  obviously 
hold  a  bread)  of  the  covenant  against  incumhranccs  contained  in  X.'H  deed. 
See.  »l»o,  Blondeau  v.  Sheridan,  81  Mo.  545;  Keating  v.  Korfhage,  88  Mo. 
624.  Burr  v.  Lamaster,  (Xeb.)  4ft  X.  \V.  Uep.  1015.  An  owner  agreed,  by 
reiairdcd  contract,  to  pay  half  the  coM  of  a  party  wall  if  one  should  bo  built 
MI  n»  to  IK»  capable  of  use  by  him.  and  he  made  the  prospective  half  of  the  cost 


COVENANT    AGAINST    INCUMBKANCES.  327 

out  knowledge  of  his  liability  to  pay  such  cost  he  would  be  entitled 
to  recover  as  damages  the  amount  so  disbursed  by  him. 

A  mere  dedication  to  public  uses  without  evidence  of  use  or 
acceptance  by  the  public  authorities  is  no  breach  of  the  covenant 
against  incumbrances.31 

§  127.  Notice  of  easement.  There  can  be  no  doubt  that  a 
pecuniary  charge  upon  the  granted  premises  such  as  a  judgment, 
a  mortgage,  or  a  vendor's  lien,  constitutes  a  breach  of  the  covenant 
against  incumbrance,  though  the  purchaser  was  fully  advised  of  its 
existence  when  the  contract  was  made  or  the  conveyance  taken. 
The  covenant  is  taken  for  the  protection  of  the  purchaser  in  case 
the  incumbrance  should  not  be  removed  by  the  seller  and  the  pur- 
chaser be  compelled  to  pay  it  at  some  future  day.32  But  such  an 
incumbrance  in  nowise  interferes  with  the  present  enjoyment  and 
possession  of  the  estate,  and  is  seldom  considered  in  fixing  the 
purchase  price  of  the  property,  unless  the  purchaser  undertakes 
to  remove  it  as  a  part  of  the  consideration.33  Therefore,  the 
question  of  notice  of  the  existence  of  the  incumbrance  is  immate- 
rial to  the  right  of  the  purchaser  to  recover  on  the  covenant.  But 
with  respect  to  an  easement  visibly  and  notoriously  affecting  the 
physical  condition  of  the  land  at  the  time  of  the  purchase,  such  as 
a  public  highway,34  public  levee,35  drainage  ditch  right  of  way,3* 

a  lien  on  his  land.  Afterward,  without  having  built,  he  conveyed  with  war- 
ranty against  incumbrances.  It  was  held  that  on  the  purchaser's  building 
the  land  was  charged  with  a  lien  as  per  the  party  wall  contract.  Arnold  v. 
Chamberlain,  14  Tex.  Civ.  App.  634;  39  S.  W.  Eep.  201. 

31  De  Long  v.  Spring  Lake  Imp.  Co.,   (N.  J.  L.)   59  Atl.  Rep.  1034.     It  has 
been  held  that  an  easement  acquired  by  a  city  in  condemnation  proceedings 
does  not  constitute  a  breach  of  a  covenant  of  the  grantor  that  the  premises 
are  free  from  incumbrances  made  by  Mm.     Weeks  v.  Grace,  194  Mass.  296; 
80  N.  E.  220;  9  L.  R.  A.   (N.  S.)    1092. 

32  Ante,  cases  cited,  note  47,  p.  311. 

33Kutz  v.  McCune,.22  Wis.  628;  99  Am.  Dec.  85,  where  it  was  said  that  a 
pecuniary  incumbrance  does  not  affect  the  physical  condition  of  the  premises. 
It  is  a  mere  incident,  and  where  the  purchaser  takes  a  covenant  against 
incumbrances,  there  is  no  reasonable  ground  for  supposing  that  he  intended 
to  have  his  land  subsequently  sold  to  pay  the  vendor's  debt,  or  else  pay  it 
himself. 

3<A  public  highway  through  the  granted  premises,  laid  out,  opened,  in  use 
and  known  to  the  purchaser,  is  no  breach  of  the  covenant  against  incum- 
brances. Whitbeck  v.  Cook,  15  Johns.  (N.  Y.)  483;  8  Am.  Dec.  272,  leading 
case,  in  which,  however,  the  covenant  was  that  of  seisin,  and  not  against 


328  MARKETABLE    TITLE    TO    REAL    ESTATE. 

incumbrances.  The  principle  is  the  same  in  either  case.  Huyck  v.  Amhv\\s. 
113  X.  Y.  81;  Hymes  v.  Esty,  116  N.  Y.  501.  Smith  v.  Hughes,  50  \Vis.  t;-jn. 
Scribner  v.  Holmes,  16  Iml.  142.  Butte  v.  Riffe,  78  Ky.  352.  \Yeller  v.  Trust 
Co.  23  Ky.  Law  R.  1136;  64  S.  W.  Rep.  843.  Lallande  v.  West.  IS  Ln.  Ann. 
290.  Harrison  v.  Railway  Co.,  91  Iowa  114;  58  N.  W.  1081.  A  public 
highway  is  generally  regarded  as  a  .benefit  to  the  land:  and  whether  so  or 
not,  the  purchaser  is  presumed  to  have  taken  it  into  consideration,  and  to 
have  fixed  the  price  with  reference  to  its  supposed  advantages  or  disad- 
vantages. STAPLES,  J.,  in  Jordan  v.  Eve,  31  Grat.  (Va.)  1.  "To  hold  that  a 
public  road  running  through  a  tract  of  land,  \vhidi  was  known  to  the  pur- 
chaser at  the  time  of  his  purchase,  is  such  an  incumbrance  as  would  con- 
stitute a  breach  of  a  covenant  of  warranty  against  incuinhranccs.  would 
produce  a  crop  of  litigation  in  this  State  that  would  be  interminable.''  Per 
curtain.  Desverges  v.  Willis,  56  Ga.  515;  21  Am.  Rep.  2S9.  Ake  v.  Mason. 
101  Pa.  St.  21.  This  was  an  extreme  case.  .The  highway  (a  street)  had 
been  laid  out,  but  not  opened,  and  the  grantee  had  no  other  notice  of  its 
existence  than  constructive  notice  of  the  proceedings  under  which  it  was 
laid  out.  A  strip  was  taken  from  one  end  of  the  premises  by  the  highway. 
This  was  held  no  breach,  SHABSWOOD,  C.  J.,  and  TURNKEY,  P.,  dissenting. 
It  appeared,  however,  that  the  condemnation  money  had  not  been  paid,  and  it 
was  intimated  that  the  remedy  of  the  grantee  was  against  the  pulilie 
authorities.  Highway  no  breach;  Smith  v.  Hughes,  f,(»  \Yi>.  Crl(\.  Scrihner  v. 
Holmes,  16  Ind.  142.  An  alley  known  to  the  purchaser  is  no  incuinliranee. 
Haldane  v.  Sweet,  55  Mich.  196,  .per  COOLEY,  J.,  who  said:  "The  alleys  were 
open  to  observation  at  the  time  (of  the  purchase),  and  the  (grantee)  must 
have  known  all  about  them  and  bought  with  them  in  mind."  If  the  high- 
way be  laid  out,  but  not  opened,  and  the  purchaser  has  no  actual  not  ire  of 
its  existence,  he  will  be  entitled  to  damages,  llymes  v.  Esty,  110  N.  V.  .lit]. 
People's  Sav.  Bank  v.  Alexander,  3  Cent.  Rep.  388.  So,  also,  where  the 
premises  encroach  upon  a  public  highway,  but  the  encroachment  is  not  visible 
to  the  purchaser.  Trice  v.  Kayton,  84  Va."217;  4  S.  E.  Rep.  377.  If  the 
highway  be  merely  laid  out  and  not  visibly  opened,  and  there  lie  nothing  '" 
charge  the  purchaser  with  notice  of  its  existence,  the  covenant  will  of  cour-e 
be  broken.  James  v.  \\arehous,.  c,,.,  (Ky.)  56  S.  W.  Rep.  19.  HMD 

f,  116  N.  Y.  501,  the  court  Baying  that  the  rule  that  a  covenant  of  war- 
ranty is  not  broken  by  the  existence  of  a  public  highway  through  the  war- 
ranted premises  rests  upon  the  presumption  arising  from  the  opportunity 
furnished  the  pun  ha-er  by  the  apparent  existence  or  ii-e  of  the  highway  to 
take  notice  of  it,  and  in  such  case  he  is  charged  with  knowledge  and  i- 
presumed  to  have  purchased  with  reference  thereto.  But  this  rule  does  not 
apply  where,  at  the  time  of  the  conveyance,  there  was  no  indication  or  notice, 

.:il  or  constructive,  of  the  existence  of  a  highway  or  public  easement;    in 

c  a>e,  where  there   i-  a   subsequent  appropriation   for  a   highway  by  tho 

public  in  the  exercise  of  a  pre-existing  right    (the  street  in  this  case  having 

actually  laid  out  and  condemned  but  not  opened)  the  covenant  is  broken. 

These  remarks  were  made  in   respect  of  a  covenant  of  warranty,  but   they 

apply   with   equal    force   to   the   covenant    against    incumbrnnces.      In    the    f.d- 

lowing  cases  a  public  highway  over  the  premises  has  been  held  a  hren 


COVENANT    AGAINST    INCUMBRANCES.  329 

the  covenant  against  incumbrances,  without  regard  to  the  question  of  notice 
on  the  part  of  the  purchaser.  Kellogg  v.  Ingersoll,  2  Mass.  101.  Hubbard  v. 
Norton,  10  Conn.  422.  Butler  v.  Gale,  27  Vt.  739.  Pritchard  v.  Atkinson, 
:>  X.  H.  335.  If  the  public  road  has  been  located  but  not  opened,  it  will  be 
treated  as  an  incumbrance.  Herrick  v.  Moore,  19  Me.  313.  The  highway 
must  be  shown  to  have  been  legally  laid  out.  If  the  record  do  not  show  all 
the  necessary  proceedings,  the  highway  must  have  been  in  use  for  such  a 
length  of  time  that  a  jury  would  be  justified  in  presuming  that  the  road  was 
legally  laid  out,  and  damages  paid  to  the  land  owners.  Pritchard  v.  Atkin- 
son, 3  N~.  H.  336.  The  covenant  against  incumbrances  will  not  be  broken 
if  the  highway  merely  bounds  instead  of  traverses  the  premises.  Frost  v. 
Angier,  127  Mass.  212.  Austin  street,  formerly  a  private  way,  was  laid  out 
in  July,  1882.  Part  of  the  premises  taken  were  conveyed  as  bounded  on 
Austin  street,  with  covenant  against  incumbrances,  in  December,  1882.  In 
18S3  the  street  was  opened  and  graded.  Held,  that  there  was  no  breach  of 
the  covenant  against  incumbrances,  even  though  the  grantor  had  executed  a 
release  of  damages  to  the  city,  and  that  the  grantee  could'  not  recover 
damages  from  the  grantor  caused  by  lowering  the  grade  of  the  street.  Patten 
V.  Fitz,  138  Mass.  456.  A  street  laid  out,  and  dedicated  but  not  opened, 
constitutes  a  breach  of  a  covenant  against  incumbrances,  whether  the  city 
had  or  had  not  accepted  the  dedication.  Daisy  Realty  Co.  v.  Brown,  18  Ky. 
Law  R.  155;  35  S.  W.  637.  Under  Mass.  Stats.  1891,  no  incumbrance  is 
created  by  preliminary  proceedings'  to  lay  out  a  street  in  Boston,  until  a 
plan  is  filedi.  French  v.  Folsom,  181  Mass.  483;  93  K  E.  Rep.  938.  Where 
the  entire  premises  conveyed  consisted  of  a  strip  of  land  that  had  been 
dedicated,  accepted,  and  vised  as  a  public  highway  or  street,  it  was  held  that 
there  was  a  breach  of  the  covenant  'against  incumbrances.  Turner  v.  State 
Bank,  101  Kan.  493;  167  Pac.  1052. 

Recent  Cases.  Walquist  v.  Johnson,  103  Wash.  30;  173  Pac.  735;  Hoyt  v. 
Rothe,  95  Wash.  369;  1G3  Pac.  925;  Crams  v.  Durdall,  154  Iowa  468;  134 
X.  W.  1086;  Sandum  v.  Johnson,  122  Minn.  368;  142  N.  W.  878;  48  L.  R.  A. 
(N.  S.)  619  Killen  v.  Funk,  83  Neb.  622;  120  1ST.  W.  189;  131  Am.  St.  Rep.  658. 
In  McWhorter  v.  Forney,  69  Wash.  414;  125  Pac.  164,  it  was  held  that  a 
well-defined  public  road  across  the  land,  if  a  detriment  and  not  a  benefit  to 
the  land,  was  a  breach  of  the  covenant  against  incumbrances.  In  Newmyer 
V.  Roush,  21  Idaho  106;  1^0  Pac.  464;  Ann.  Cas.  1913D,  433;  a  distinction 
was  drawn  between  a  public  highway  and  a  private  road  —  the  former  being 
held  not  to  be,  and  the  latter  to  be,  a  breach  of  the  covenant  against  incum- 
brances. An  unopened  highway  dedicated  to  public  tise  but  giving  no  indica- 
tion of  its  existence,  is  a  breach  of  the  covenant.  McAndrews  &  C.  Co.  v. 
Bank,  87  N.  J.  L.  231;  94  Atl.  627;  Ann.  Gas.  1917C,  146. 

MSchurger  v.  Mooreman,  20  Idaho  97;  117  Pac.  122;  36  L.  R.  A.  (N.  S.) 
313;  Ann.  Cas.  1912D,  1114.  Ireton  v.  Thomas,  84  Kan.  70;  113  Pac.  306; 
32  L.  R.  A.  (N.  S.)  737. 

3GBirkett  v.  De  Vans,  206  111.  App.  187;   in  which  case  it  was  held,  how- 
ever, that  only  nominal  damages  could  be  recovered  if  the  construction  of 
the  ditch  would  be  a  benefit  to  the  land.     See  post,  §   132. 
42 


330  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

irrigation  ditch.57  public  sewer,88  railway,89  or  canal,  a  different 
rule  as  to  the  effect  of  notice  upon  the  right  to  recover  has  been 
established  in  many  of  the  States.  In  such  a  case  the  purchaser 
has  no  contingent  or  prospective  enforcement  of  the  incumbrance 
to  provide  against  with  covenants  for  title.  There  would  be 
neither  reason,  utility,  nor  convenience  in  requiring  the  vendor 
to  covenant  against  a  fact  that  depreciates  the  value  of  the 
premises,  but  is  capable  of  accurate  and  equitable  adjustment 
l>etween  the  parties  in  fixing  the  purchase  price.  The  purchaser 
is  presumed  to  have  taken  into  consideration  the  existence  of  the 
incumbrance.  and  any  loss  or  inconvenience  it  might  occasion  him, 

"Schurger  v.  Mooreman.  20  Idaho  97;  117  Pac.  122;  36  L.  R.  A.  (X.  S.) 
313;  Ann.  Cas.  19121).  1114.  But  the  right  of  way  for  an  unopened  ditch  is 
a  breach  of  the  covenant.  Feldhut  v.  Bruinmitt,  96  Kan.  127 ;  150  Pac.  549. 

"Burke  v.  Tralme.  13"  Ky.  5SO;  126  S.  W.  125;  Kahn  v.  Cherry,  131  Ark. 
49;  198  S.  W.  266;  First  Unitarian  Soc.  v.  Cit,  &c.  Trust  Co.,  162  Iowa  389; 
142  N.  W.  87;  51  L.  R.  A.  (X.  S.)  428;  Ann.  Oas.  1910B,  575. 

»  Smith  v.  Hughes,  50  Wis.  620;  7  N.  W.  653.  This  would  probably  be  so 
held  wherever  it  is  held  that  a  public  highway  known  to  the  purchaser  would 
not  be  an  incumbrance.  And  obviously  wherever  it  is  hold  that  a  public 
highway  is  such  a  breach,  a  railway  through  the  premises  would  also  be  so 
held.  Kellogg  v.  Malin,  50  Mo.  496;  11  Am.  Rep.  426.  Beach  v.  Miller,  51 
111.  206;  2  Am.  Rep.  290.  Barlow  v.  McKinley,  24  Iowa,  70.  Kostendader  v. 
Pierce,  37  Iowa,  645.  Fierce  v.  Houghton,  (Iowa)  98  X.  W.  Rep.  306. 
Burke  v.  Hill,  48  Ind.  52;  17  Am.  Rep.  731.  Farrington  v.  Tourtellot,  30 
Fed.  Rep.  738.  Van  Xess  v.  Royal  Phosphate  Co.,  60  Fla.  284;  Ann.  Cas. 
1912C,  647:  30  L.  R.  A.  (X.  S.)  833;  53  So.  381;  Goodman  v.  Heilig.  157 
X.  C.  6;  72  S.  E.  866:  30  L.  R.  A.  (N.  S.)  1004.  In  McDonald  v.  Ward, 
99  Wash.  354;  169  Pac.  851:  L.  R.  Ann.  Cas.  1918F.  662,  it  is  said  that  the 
weight  of  authority  is  that  the  existence  of  the  railway  right  of  way  is  a 
breach  of  the  covenant:  citing  Matthews  v.  Livingston.  86  Conn.  263;  85 
All.  529;  Ann.  Cas.  1914A.  195.  In  Gerald  v.  Klley,  51  Iowa,  317,  it  was 
held  that  the  mere  fact  that  a  railroad  company  exercises  a  right  of  way, 
is  not  of  itself  a  breach  of  the  covenant  against  incumbrances.  The  company 
m«y  be  a  trespasser.  It  must  lx>  shown  that  the  right  of  way  has  been 
lawfully  acquired.  The  grantor  cannot  have  his  covenant  against  incum- 
brance* reformed  on  the  ground  that  he  did  not  know  that  it  would  extend 
to  and  embrace  a  railroad  right  of  way  over  the  land,  known  to  the  grantee 
when  the  covenant  wnn  made.  Gerald  v.  Elley,  45  Iowa,  332.  An  unopened 
railroad  right  of  way  in  possession  of  the  company  will  constitute  a  breach 
of  the  covenant  against  incumbrances.  Brims  v.  Schreiber,  (Minn.)  51  X.  W. 
Rep.  120;  especially  where  the  right  of  way  has  been  graded.  Wise.  Cent. 
Ry.  Co.  v.  Schug.  155  Wise.  563;  145  X.  W.  177.  The  encroachment  of  the 
premises  upon  it  railroad  right  of  way.  for  which  the  covenanter  WUH  com- 
pelled to  pay.  i-  a  breach  of  the  covenant.  Pritchard  v.  Rcbori,  135  Tenn. 
32S:  IRC,  S.  W.  121. 


COVENANT    AGAINST    INCUMBKANCES.  331 

and  to  have  agreed  upon  the  consideration  to  be  paid  as  the 
value  of  the  premises  with  the  incumbrance.40  It  is  inconceivable 
that  the  purchaser  would  agree  to  pay  more  for  the  incumbered 
premises  than  they  were  worth,  merely  because  he  could  recover 
damages  on  the  covenant  to  the  extent  of  such  excess.  If  then, 
having  bought  the  premises  at  their  depreciated  value,  with 
reference  to  the  visible  easement,  he  should  be  permitted  to 
recover  damages  for  the  breach  of  the  covenant  against  incum- 
brances  resulting  from  such  easement,  it  is  plain  that  he  would 
be  twice  compensated  for  any  damage  or  depreciation  in  value 
which  the  premises  may  have  sustained.  In  some  of  the  States 
these  principles  are  declared  applicable  to  any  purchase  with 
notice  of  the  easement,  without  regard  to  the  nature  of  the  ease- 
ment, whether  public  or  private ; 41  in  one  State,  at  least,  they 

40 Patterson  v.  Arthur,  9  Watts  (Pa.),  152.  Jaques  v.  Tomb  (Cal.)  177 
Pac.  280;  Sachs  v.  Owings,  121  Va.  162;  92  S.  E.  997. 

41  Deacon  v.  Doyle,  75  Va.  258.  Memmert  v.  Mclveen,  112  Pa.  St.  315, 
where  the  alleged  incumbrance  consisted  of  the  stone  steps  of  an  adjoining 
house,  which  were  so  constructed  as  to  occupy  a  part  of  the  sidewalk  in 
front  of  the  plaintiff's  house.  Kutz  v.  McCune,  22  Wis.  628;  99  Am.  Dec. 
85,  a  mill  pond  of  many  years  standing.  Haldane  v.  Sweet,  55  Mich.  196, 
an  alley.  James  v.  Jenkins,  34  Md.  1 ;  6  Am.  Rep.  300.  Here  the  question 
Was  whether  the  right  of  an  adjoining  proprietor  to  forbid  the  erection  of 
a  wall  on  the  granted  premises  to  such  a  height  as  to  obstruct  the  light  and 
air  from  his  windows,  constituted  a  breach  of  a  covenant  of  special  warranty 
in  a  conveyance  of  such  premises.  Mr.  Justice  ALVEY,  answering  this  ques- 
tion, and  delivering  the  opinion  of  the  court,  said :  "  This  depends  upon  the 
apparent  and  ostensible  condition  of  the  property  at  the  time  of  the  sale.  And 
as  the  wall  had  been  erected,  and  the  lights  therein  were  plainly  to  be  seen 
when  the  appellant  purchased  the  property  overlooked  by  them,  it  is  but 
rational  to  conclude  that  he  contracted  with  reference  to  that  condition  of 
the  property,  and  that  the  price  was  regulated  accordingly.  The  parties,  in 
the  absence  of  anything  to  the  contrary,  are  presumed  to  have  contracted  with 
reference  to  the  then  state  and  condition  of  the  property,  and  if  an  easement 
to  which  it  is  subject  be  opened  and  visible,  and  of  a  continuous  character, 
the  purchaser  is  supposed  to  have  been  willing  to  take  the  property  as  it 
was  at  the  time,  subject  to  such  burden.  That  being  so,  the  covenants  in  the 
deed  must  likewise  be  construed  with  reference  to  the  condition  of  the  prop- 
erty at  the  time  of  conveyance.  The  grantor,  by  his  covenant,  warranted 
the  premises  as  they  were,  and  by  no  means  intended  to  warrant  against  an 
existing  easement  which  was  open  and  visible  to  the  appellant,  and  over 
which  the  former  had  no  power  or  control  whatever.  To  construe  the  cove- 
nant to  embrace  such  subject  would  most  likely  defeat  the  understanding  and 
intention  of  the  parties,  certainly  of  the  grantor."  Citing  Washburn  on 


332  MAKKKTABLE    TITLE    TO    HEAL    ESTATE. 

arc  restricted  to  the  single  case  of  a  purchase  with  notice  of  a 
public  highway  through  the  premises;42  and  in  others  they  are 
rejected  altogether,  upon  the  ground  that  notice  of  an  incum- 
brance  at  the  time  of  the  conveyance  cannot  affect  the  right  to 
recover  on  a  covenant  against  incumbrancee.4*  In  a  recent  well- 
considered  case  in  Pennsylvania  44  it  was  observed  by  the  court 
that  incombrances  are  of  two  kinds,  (1)  Such  as  affect  the  title; 
and  ('2}  Such  as  affect  only  the  physical  condition  of  the  property. 
A  mortgage  or  other  lien  is  a  fair  illustration  of  the  former;  a 
public  road  or  right  of  way  of  the  latter.  Where  incumbrances 
of  the  former  class  exist,  the  covenant  against  incumbrances  is 
broken  the  instant  it  is  made,  and  it  is  of  no  importance  that  the 
grantee  had  notice  of  them  when  he  took  the  title.46  Such  incum- 
brances are  usually  of  a  temporary  character  and  capable  of  re- 
moval ;  the  very  object  of  the  covenant  is  to  protect  the  vendee 

Easements,  68,  and  approving  Patterson  v.  Arthur.  9  Watts  (Pa.),  154.  Se», 
also,  Xewbold  v.  Peabody  Heights  Co.,  70  Md.  493;  17  All.  Rep.  372.  Con- 
structive notice  of  a  building  restriction  from  the  record  of  a  deed  in  which 
it  is  contained  does  not  affect  the  right  of  a  subsequent  grantee  to  recover 
on  a  covenant  against  incumbrances,  but  actual  notice  of  the  restriction  it 
was  intimated  would  go  in  mitigation  of  the  damages.  Roberts  v.  Levy,  3 
Abb.  Pr.  (N.  S.)  311. 

"New  York,  Huyek  v.  Andrews,  113  N.  Y.  81;  20  X.  E.  Rep.  581,  disap- 
proving Kutz  v.  McCune  and  Memmert  v.  McKeen,  supra.  Helton  v.  Asher, 
135  Ky.  ".">!:  123  S.  W.  283. 

41  Van  Wagner  v.  N'ostraml.  19  Iowa,  422:  Barlow  v.  McKinley.  24  Iowa,  69; 
McGowan  v.  Myers,  60  Iowa.  256;  14  N.  W.  Rep.  788;  Flynn  v.  White  Breast 
Coal  Co.,  72  Iowa,  738:  32  N.  W.  Rep.  471.  Fierce  v.  Houghton  (Iowa),  98 
X.  W.  Rep.  306.  Morgan  v.  Smith.  19  111.  199.  Butler  v.  Gate,  27  Vt.  739. 
Watts  v.  Fletcher.  107  Ind.  391;  8  X.  E.  Rep.  Ill;  Burk  v.  Hill,  48  Ind.  52; 
17  Am.  Rep.  731;  Medlar  v.  Hiatt,  8  Ind.  171:  McHargue  v.  Calchina,  78 
Oreg.  326;  153  Par.  99;  Quick  v.  Taylor.  113  Ind.  540;  16  N.  E.  Rep.  588.  In 
this  case  it  seems  that  the  right  of  way  had  been  condemned  but  not  opened. 
Teague  v.  Whaley.  20  Ind.  App.  26;  50  NT.  E.  Rep.  41;  Whiteside  v.  Magruder. 
75  Mo.  App.  364,  an  unopened  railway  right  of  way.  Scott  v.  Tanner.  (Mo. 
App.)  208  S.  W.  264.  Foster  v.  Foster,  62  X.  II.  532.  See,  also,  canes  cited, 
ante,  thin  section,  to  proposition  that  public  highway  or  railway  traversing 
the  premises  is  breach  of  covenant  against  incumbrances.  This  is  true  enough, 
a*  observed  by  Mr.  Hawle  (CovU.  for  Title  1 5th  ed.1,  §  76.  note  3),  where  the 
thing  complained  of  is  really  an  incumbrance,  but  loses  its  application  where 
the  question  is  whether  -HI  h  thing  is  in  fact  an  inciimhrance. 

••Memmert  v.  McKeen,  112  Pa.  St.  320. 

"Catheart  v.  Bowman.  5  Pa.  St.  317;  Funk  v.  Voneida,  11  Serg.  &  R. 
(Pa.)  109:  14  Am.  Dec.  617. 


COVENANT    AGAINST    INCUMBRANCES.  333 

against  them;  hence,  knowledge,  actual  or  constructive,  of  their 
existence  is  no  answer  to  an  action  for  the  breach  of  such  a  cove- 
nant. Where,  however,  there  is  a  servitude  imposed  upon  the  land 
which  is  visible  to  the  eye,  and  which  affects  not  the  title  but  the 
physical  condition  of  the  property,46  a  different  rule  prevails.  Thus 
it  was  held  that  where  the  owner  had  covenanted  to  convey  certain 
lots  free  from  all  incumbrances,  a  public  road  which  occupied  a 
portion  of  the  lots  was  not  an  incumbrance  within  the  meaning 
of  the  covenant.47  This  is  not  because  of  any  right  acquired  by  the 
public,  but  by  reason  of  the  fact  that  the  road,  although  admittedly 
an  incumbrance,  and  possibly  an  injury  to  the  premises,  was'  there 
when  the  purchaser  bought,  and  he  is  presumed  to  have-  had1  knowl- 
edge of  it.  In  such  and  similar  cases  there  is  the  further  presump- 
tion that  if  the  incumbrance  is  really  an  injury,  such  injury  was 
in  the  contemplation  of  the  parties'  and  that  the  price  was  regu- 
lated accordingly. 

The  rule  that  a  purchaser,  with  notice  of  an  easement  affecting 
the  premises,  cannot  complain  thereof  as  a  breach  of  the  covenant 
against  incumbrances  unquestionably  applies  where  the  easement 
is  obviously  an  appurtenance  or  incident  of  the  estate,  aSTothing 
which  constitutes  part  of  an  estate,  or  which,  as  between-  the  par- 
ties, is  to  be  regarded  as  an  incident  to  which  the  estate  is  subject, 
can  be  considered  an  incumbrance.48  And  where  the  owner  of  two 

40  Such,  as  an  irrigation  ditch.  Sisk  v.  Caswell,  14  Cal.  App.  377;  112  Pac. 
185;  Ireton  v.  Thomas,  84  Kan.  70;  113  Pac.  306. 

"Patterson  v.  Arthur,  9  Watts  (Pa.),  152.  But  a  telephone  line  in  opera- 
tion along  a  highway  in  front  of  the  granted  'premises  and  visible  to  the 
purchaser,  has  been  held  to  be  none  the  less  a  breach  of  the  covenant  against 
incumbrances.  Fossume  v.  Requa,  218  N.  Y.  339;  113  N".  E.  330.  The 
encroachment  of  the  premises  upon  a  street  which  was  abandoned  by  the 
public  many  years  after  the  encroachment  began,  has  been  held  not  to  be 
a  breach  of  the  covenant.  Deutzmann  v.  Kuntze,  147  Iowa  158;  125  N.  W. 
1007. 

^Dunklee  v.  Wilton  R.  Co.,  4  Fost,  (N.  H.)  489.  In  this  case  the  plaintiff 
conveyed  to  the  defendants  a  right  of  way  for  their  railroad,  which  inter- 
sected a  mill  race  owned  by  the  plaintiff.  The  action  was  to  recover  dam- 
ages from  the  defendant  for  building  a  culvert  at  a  point  which  caused  a 
deflection  and  less  ready  discharge  of  the  waters  of  the  race.  The  right  to 
have  the  water  flow  freely  under  or  across  the  defendant's  right  of  way  was 
held  no  breach  of  a  covenant  against  incumbrances  in  the  plaintiff's  deed, 
and,  therefore,  that  he  was  not  estopped  by  such  covenant  to  maintain  the 
action. 


334  MARKETABLE    TITLE    TO    REAL    ESTATE. 

tenements  sells  one  of  them,  the  purchaser  takes  the  portion  sold 
with  and  subject  to  all  the  benefits  and  burdens  which  appear  at 
the  time  of  the  sale  to  belong  to  it,  as  between  it  and  the  property 
which  the  owner  retains.49 

Where  a  landowner  has  created  a  servitude  upon  one  portion 
of  his  land  for  the  benefit  of  another  portion,  and  conveys  the 
servient  part,  there  is  an  implied  reservation  of  the  easement  if 
necessary  to  the  enjoyment  of  the  land  reserved ;  and  the  existence 
of  such  an  easement  does  not  constitute  a  breach  of  a  covenant 
against  incumbrances  or  of  general  warranty,  if  the  easement  was 
so  open  and  apparent  that  the  covenantee  must  have  been  aware 
of  its  existence.60 

It  is  suggested,  with  diffidence,  that  it  is  immaterial,  so  far  as 
the  mere  question  of  damages  is  concerned,  whether  a  highway  or 
other  easement  of  which  the  purchaser  had  notice,  shall  be  con- 
sidered a  technical  incumbrance.  If  he  bought,  knowing  that  the 
easement  was  there,  it  will  be  presumed  that  the  price  he  agreed 
to  pay  was  the  value  of  the  land  after  allowing  for  the  loss,  incon- 
venience or  injury  occasioned  by  the  easement.  On  the  other 
hand,  if  it  appear  that  the  easement  is  a  benefit  instead  of  a  bur- 
den to  the  premises,  there  is  no  loss  or  injury  to  the  grantee.51 
In  either  case  it  would  seem  that  he  could  recover  only  nominal 

•James  v.  Jenkins,  34  Md.  1;  0  Am.  Rep.  300.  Seymour  v.  Lewis,  2  Bens. 
(N.  J.)  439.  Harwood  v.  Benton,  32  Vt.  724. 

••Kutz  v.  McCune,  22  Wis.  628;  90  Am.  Dec.  85;  Bennett  v.  Booth,  70 
\V.  Va.  264;  73  S.  E.  909;  39  L.  R.  A.  (N.  S.)  618.  In  both  of  these  cases 
part  of  the  land  conveyed  was  covered  by  a  mill-pond,  and  it  was  held 
that  the  implied  reservation  of  the  right  to  maintain  the  pond  for  the  u*c 
of  the  mill,  was  no  breach  cf  the  covenant  against  incumbrances. 

«Hymes  v.  E«ty,  133  N.  Y.  342;  31  N.  E.  Rep.  105.  Stuhr  v.  Butterfleld, 
151  Iowa  736;  130  N".  W.  897.  Mr.  Rawle  concludes  that  an  easement 
beneficial  to  the  premises  cannot  be  an  incumbrance,  and,  therefore,  cannot 
be  a  breath,  technical  or  substantial,  of  the  covenant  against  incumbrances. 
Also,  that  parol  evidence  may  be  received  as  to  the  nature  of  the  alleged 
incumbrance,  and  that  the  question  whether  the  same  be  or  be  not  in  fact  an 
incumbrance,  is  not  a  mere  abstract  question  of  law,  but  a  question  of  fact 
to  be  determined  by  the  jury  upon  consideration  of  all  the  surrounding 
circumstances,  such  a»  the  advantages  or  disadvantages  accruing  to  the 
premises  from  the  easement,  notice  to  the  purchaser,  the  price  agreed  to  be 
paid,  etc.  (Covenants  for  Title  [5th  ed.],  *<  76,  86).  But  see  Eddy  v. 
Chace,  140  Mass.  471;  5  N.  E.  Rep.  306,  where  it  was  said  that  the  construc- 
tion of  a  deed,  and  the  operation  and  extent  of  the  covenants  therein  con- 


COVENANT    AGAINST    INCUMBRANCES.  335 

damages  for  the  breach.52  It  may  even  be  doubted  whether  the 
easement,  when  it  is  a  benefit,  could  be  regarded  as  a  technical 
breach  of  the  covenant  so  as  to  entitle  the  plaintiff  to  a  judgment 
for  costs.  If  the  grantee  elect,  for  a  number  of  years,  to  treat  the 
easement  as  a  benefit,  he  will  be  estopped  to  set  it  up  as  a  breach 
of  the  covenant,53 

§  128.  ASSIGNABILITY  OF  THE  COVENANT  AGAINST  INCTJM- 
BBANCES.  The  covenant  against  incumbrances,  like  the  covenant 
of  seisin,  has  been  generally  held  in  the  American  States  to  be  an 
agreement  as  to  the  pres&nt  state  of  the  title,  and  to  be  broken  as 
soon  as  made,  if,  at  the  time  of  tlie  covenant,  there  be  an  incum- 
brance  on  the  premises,  and  that,  consequently,  all  rights  of  action 
for  breach  of  contract  being  incapable  of  assignment  at  common 
law  and  by  the  statute  32  Hen.  VIII,  c.  24,  a  grantee  of  the  cove- 
nantee,  or  one  claiming  under  him,  could  bring  no  action  at  law  in 
his  own  name  for  the  breach;  in  other  words,  that  the  covenant 
against  incumbrances  does  not  run  with  the  land.04  This  rule  does 

tained  is  for  the  court  and  not  for  the  jury,  and  that  it  cannot  'be  left  to  the 
latter  to  say  whether,  upon  the  evidence,  a  covenant  against  certain  incum- 
brances was  intended  by  the  deedi 

52  Post,  §  132. 

^Ladue  v.  Cooper,  67  X.  Y.  Supp.  319;  32  Misc.  Rep.  544. 

54  See,  generally,  the  cases  cited  to  the  proposition  that  a  covenant  of  seisin 
does  not  run  with  the  land,  ante,  §  111.  See,  also,  Lawrence  v.  Montgomery, 
37  Cal.  183.  Woodward  v.  Brown,  119  Gal.  283;  51  Pac.  Rep.  2,  542.  Mc- 
Pike  v.  Heaton,  131  Cal.  109;  63  Pac.  Rep.  17D.  Heath  v.  Whidden,  24  Me. 
383.  Mygatt  v.  Coe,  124  N.  Y.  212;  26  N.  E.  Rep.  611.  Stewart  v.  Drake, 
9  N.  J.  L.  139;  Garrison  v.  Sandford,  12  N.  J.  L.  261.  Blondeau  v.  Sheridan, 
81  Mo.  545.  Osborne  v.  Atkins,  6  Gray  (Mass.),  423;  Smith  v.  Richards, 
(Mass.)  18  N.  E.  Rep.  1132.  Guerin  v.  Smith,  62  Mich.  369;  38  N.  W.  Rep. 
906.  Smith  v.  Jefts,  44  N.  H.  482.  Fuller  v.  Jillette,  9  Biss.  (U.  S.)  296, 
obiter.  Sears  v.  Broady,  66  Neb.  207;  92,  N.  W.  Rep.  214;  Waters  v. 
Bagley,  (Neb.)  92  N".  W.  Rep.  637.  Brass  v.  Vandecar,  <Neb.)  96  N.  W. 
Rep.  1035.  Pease  v.  Warner,  153  Mich.  140;  116  N.  W.  994.  Simonds  v. 
Diamond  Match  Co.,  159  Mich.  241;  123  N".  W.  1132.  Thompson  v.  Rich- 
mond, 102  Me.  335;  65  Atl.  649.  Shalet  v.  Stolon*.  120  N.  Y.  Supp.  345;  135 
App.  Div.  376.  In  Pearson  v.  Ford,  1  Kan.  App.  580;  42  Pac.  257,  the  court 
declined  to  pass  upon  the  question  whether  a  covenant  against  incumbrances 
ran  with  the  land,  but  held  that  a  general  warranty  deed  executed  pending 
proceedings  to  foreclose  a  mortgage  on  the  land,  did  not  give  the  grantee  the 
right  to  maintain  an  action  on  an  agreement  in  a  deed  by  his  grantee  to  a 
third  party,  conveying  other  land  by  which  such  third  party  undertook  to 
discharge  the  mortgage  in  question  as  a  part  of  the  consideration  for  his 
deed. 


336  MAKKETABLE    TITLE    TO    REAL    ESTATE. 

not  prevail,  however,  in  many  of  the  States,  their  courts  holding 
that  if  the  loss  resulting  from  a  breach  of  the  covenant  fa41  upon 
the  subsequent  grantee,  he  will  have  a  right  of  action  against  the 
covenantor,  upon  the  ground  that  the  covenant  is  prospective  in  its 
operation,  and  intended  for  the  security  of  the  title  and  the  in- 
demnity of  him  into  whose  hands  the  kird  may  pass.55  A  distinc- 
tion has  also  been  made  between  a  covenant  "  that  the  land  is  free 
from  incumbrances,"  and  one  that  the  covenantee  "  shall  quietly 
enjoy  the  same,  free  from  incumbrances"  it  being  considered  that 
in  this  form  the  covenant  is-  prospective  and  runs  with  the  land.56 

"See  cases  cited  ante,  §  112,  to  proposition  that  covenant  of  seisin  runs 
with  the  land.  See,  also,  Cole  v.  Kimball,  52  Vt.  63fl.  Walker  v.  Denver,  5 
Mo.  App.  139;  Alexander  v.  Schreiber,  13  Mo.  271;  Wmningham  v.  Pennock, 
36  Mo.  App.  688.  Sage  v.  Jones,  47  Ind.  122.  This  case  holds  also  that  the 
grantor  cannot  at  the  time  of  conveyance  reserve,  by  parol,  the  right  to 
recover  for  a  breach  of  the  incumbrance.  Whitten  v.  Krick,  31  Ind.  App. 
577;  68  X.  E.  Rep.  694.  Burk  v.  Hill,  48  Ind.  52;  17  Am.  Rep.  73J; 
Dehority  v.  Wright,  101  Ind.  382;  Mecklem  v.  Blake,  22  Wis.  495;  99  Am. 
Dec.  G6S-.  Killilea  v.  Douglas,  133  Wis.  140;  126  Am.  St.  Rep.  938;  17  L. 
R.  A.  (X.  S.)  1189.  Tucker  v.  Mi-Arthur.  103  Ga.  409;  30  S.  E.  Rep.  283. 
Taylor  v.  Lane,  18  Tex.  Civ.  App.  545;  45  S.  W.  Rep.  317.  Pillsbury  v. 
Mitchell,  .">  Wi-.  17.  Hawthorne  v.  City  Bank,  34  Minn.  382.  This  rule  seema 
also  to  have  been  recognized  in  Virginia.  Wash.  City  Savings  Bank  v. 
Thornton,  83  Va.  157;  2  S.  E.  Rep.  103,  rlictum,  citing  Dickinson  v.  Hoomes, 
8  Grat.  (Va.)  353;  Sheffey  v.  Gardner,  79i  Va.  313.  It  is  settled  in  New 
York  that  a  covenant  against  incumbrances  runs  with  the  land,  and  that  a 
remote  grantee  may  sue  on  the  original  covenant.  Geiszler  v.  De  Graaf, 
166  X.  Y.  330;  59  N.  E.  Rep.  003:  82  Am.  St.  Rep.  650;  Mandigo  v.  Con 
!Hi  \.  Y.  Snpp.  324;  45  Misc.  389.  In  Clarke  v.  Priest.  17  X.  Y.  Supp.  489; 
21  App.  Div.  174,  the  rule  was  thus  stated:  If  the  covenantee  has  on  an 
alienation  of  the  property  by  him,  either  rendered  himself  liable  to  liis 
grantee  by  a  covenant  against  im  •mnhranccs,  or,  by  his  conveyance,  estopped 
himself  from  asserting  title  to  the  incumbrance,  as  against  his  grantee,  should 
he  afterward  acquire  it,  then  his  deed  should  be  held  to  operate  as  an  assign- 
ment to  his  grantee  of  his  right  of  action  against  his  grantor.  The  husband 
of  a  (lei,-.i»cd  Cramer,  not  being  a  party  to  the  deed  containing  a  covenant 
against  incumbrances,  nor  a--ignec  of  such  covenant,  cannot  maintain  an 
action  for  breach  thereof,  though  he  joined  his  wife  in  a  deed  conveying  the 
premi-ex  with  a  covenant  again-t  incunrbrances.  Ladd  v.  Montgomery,  83 
Mo.  App.  356. 

"Rawle  Cuvts.  55  70,  212.  In  Brisbane  v.  M. -Crady,  1  Xott  &  McC.  (S. 
C.)  101.  it  was  held  that  a  covenant  that  the  land  was  free  from  in< mn- 
brances  was  equivalent  to  a  covenant  that  the  grantee  should  quii-My  enjoy 
the  premises  free  from  incumbrances,  and  being  thus  prospective  in  its  char- 


COVENANT    AGAINST    INCUMBRANCES.  337 

As  a  general  rule  the  cases  which  decide  that  the  covenant  of 
seisin  does  not  run  with  the  land,  apply  the  same  rule  to  the  cove- 
nant against  incumbrances,  and  the  reader  is  referred  to  the 
remarks  in  this  work  on  the  assignability  of  the  covenant  of  seisin, 
and  to  the  cases  there  cited,  as  being,  in  the  main,  applicable  to  the 
covenant  against  incumbrances.57  In  several  of  the  States,  how- 
ever, in  which  it  is  held  that  a  covenant  of  seisin  does  not  run  with 
the  land,  a  subsequent  grantee  of  the  land  has  been  permitted  to 
recover  for  a  breach  of  the  covenant  against  incumbrances.58 

acter,  would  pass  with  the  land  to  a  subsequent  grantee.  See,  also,  Jeter  v. 
Glenn,  9  Rich.  L.  (S.  C.)  376.  Tuskegee  Land  Co.  v.  Realty  (Ala.)  49  So. 
378. 

"Ante,  >§  112. 

58  Richard  v.  Bent,  59  111.  38;  14  Am.  Rep.  1.  Newman  v.  Sevier,  134  111. 
App.  544.  In  Ernst  v.  Parsons,  54  How.  Pr.  (N.  Y.)  163,  it  was  held  that 
in  redeeming  land,  which  had  been  conveyed  with  warranty  against  incum- 
brances, from  a  tax  sale,  a  remote  grantee  did  that  which  it  was  the  cove- 
nantor's duty  to  do,  and  that  so  long  as  the  tax  lien  remained  unpaid  there 
was  a  continuing  breach  of  the  covenant,  for  which  the  remote  grantee  had 
a  right  of  action.  The  rule  that  a  covenant  of  seisin  is  broken  as  soon  as 
made,  and,  being  a  chose  in  action,  cannot  run  with  the  land,  is  perhaps 
nowhere  more  firmly  established  than  in  the  State  of  Massachusetts.  It  has 
been  intimated  there,  however,  that  the  same  rule  would  not  apply  in  the 
case  of  a  ^breach  of  the  covenant  against  incumbrances.  In  Sprague  v.  Baker, 
17  Mass.  589,  it  was  held  by  WILDE,  J. :  "There  was  a  breach  of  the  cove- 
nant (against  incumbrances),  it  is  true,  before  the  assignment;  but  for  this 
breach  the  covenantee  could  only  have  recovered  nominal  damages.  The 
actual  damages  accrued  after  assignment.  They  were  sustained  by  the 
assignee,  and  not  by  the  covenantee,  who  has  no  interest  in  them,  except 
what  arises  from  his  covenants  with  the  assignee.  But  suppose  there  had 
been  no  such  covenants,  or  suppose  the  covenantee  to  be  insolvent;  then  unless 
the  assignee  can  maintain  the  present  action  he  is  without  remedy.  This 
certainly  would  not  be  right;  nor  do  I  think  that  such  is  the  law.  It 
.seems  to  me  that,  if  the  present  case  required  a  decision  upon  that  point, 
we  might  be  well  warranted  in  saying  that  the  covenant  against  incum- 
brances, notwithstanding  the  breach,  passed  to  the  assignee,  so  as  to  entitle 
him  to  an  action  for  any  damages  he  might  sustain  after  the  assignment, 
because  the  breach  continued  and  the  ground  of  damages  has  been  materially 
enlarged  since  that  time,  so  that  the  assignee's  title  does  not  depend  upon  the 
assignment  of  a  mere  chose  in  action.  He  is  principally  interested  in  the 
covenant ;  that  those  covenants  run  with  the  land  in  which  the  owner  is  solely 
or  principally  interested,  and  which  are  necessary  for  the  maintenance  of  his 
rights.  Covenant  lies  by  an  assignee  on  every  covenant  which  concerns  the 
land.  Com.  Dig.  B.  S."  The  foregoing  remarks  would  seem  to  apply  with 
equal  force  in  a  case  in  which  actual  damages  from  a  breach  of  the  covenant 

43 


338  MARKETABLE    TITLE    TO    REAL    ESTATE. 

The  rule  that  a  covenant  against  incumbrances  does  not  run 
with  the  land,  is  comparatively  unimportant  where  the  deed  con- 
tains also  a  covenant  of  warranty,  which,  of  course,  must  always 
be  the  case  in  those  jurisdictions  in  which  by  statute  or  judicial 
construction,  a  covenant  of  warranty  includes  a  covenant  against 
incumbrances.  The  covenantee  may  wait  until  he  is  actually 
evicted  by  enforcement  of  the  incumbrance,  or  he  may  suffer  a 
constructive  eviction  by  discharging  the  incumbrance  in  order  to 
prevent  an  actual  dispossession,  and  in  either  case  recover  for 
breach  of  the  warranty,  regardless  of  the  covenant  against  incum- 
brances.69 No  damage,  as  a  general  rule,  flows  from  the  breach 
of  the  covenant  until  the  incumbrance  has  been  actually  or  con- 
structively enforced,  and  when  that  occurs  the  covenant  of  war- 
ranty is  broken  and  an  action  for  damages  immediately  accrues 
in  favor  of  the  pterson  then  owning  the  premises.60 

Of  course  if  the  damage  from  a  breach  of  the  covenant  against 
incumbrances  accrue,  that  is,  if  the  incumbrance  be  enforced,  be- 
fore the  land  passes  from  the  covenantee,  the  right  to  recover  for 
the  damages  thence  ensuing  would  not  pass  to  a  subsequent  grantee 
or  to  the  heir  of  the  covenantee.*1 

The  provisions  of  the  Code,  that  every  action  shall  be  brought  by 
the  real  party  in  interest,  has  been  construed  to  give  to  a  grantee 
of  the  covenantee -the  right  to  maintain  an  action  in  his  own  name 
for  a  breach  of  the  covenant  against  incumbrances.61 

of  seisin  have  been  sustained  by  the  assignee.  In  Stinson  v.  Stunner,  9 
M.i--.  143;  6  Am.  Dec.  49,  a  remote  grantee  was  permitted  to  recover  on  a 
covenant  against  incumbrances.  The  dbjection  that  the  right  of  action  did 
not  pass  to  him  was  not  made.  Later  decisions  in  Massachusetts  have  dis- 
regarded those  cases,  and  the  rule  that  the  covenant  against  incumbrances 
does  not  run  with  the  land  may  be  considered  to  be  settled  in  that  State 
Osborne  v.  Atkins,  6  Gray  (Mass.)  423;  Whitney  v.  Dinsmore,  6  Cush 
(Mass.)  128. 

•Worley  v.  Hineman,  (Ind.)  33  N.  E.  Rep.  260.  Mauzy  v.  Flint,  42  Ind. 
App.  386;  83  N.  E.  757.  Maitlen  v.  Maitlen,  44  Ind.  App.  559;  89  N.  E.  966. 

••Tufts  v.  Adams,  8  Pick.  (Mass.)  549;  Thayer  v.  Clemence,  22  Pick. 
(Maw.)  490.  Lloyd  v.  Quimby,  5  Ohio  fit.  262. 

"Frink  v.  Belli*,  33  Ind.  135;  5  Am.  Rep.  193.  2  Sugd.  Vend.  (8th  Am. 
ed.)  577  (237). 

"Andrews  v.  Appel,  22  Hun  (N.  Y.),  429.  This  was  an  action  on  a  cove- 
nant against  incumbrances  brought,  by  the  last  grantoe,  after  several  mesne 
conveyances.  The  plaintiff  had  been  compelled  to  redeem  the  land  from  a  tax 


COVENANT    AGAINST    INCUMBRANCES.  339 

In  the  State  of  New  York,  where  it  is  held  that  the  covenant 
against  incumbrances  runs  with  the  land,  it  is  also  held  that  a 
subsequent  co'nveyance  "  subject  to  "  an  incumbrance  constituting 
a  breach  of  the  covenant  in  the  original  conveyance,  breaks  the 
continuity  of  the  covenant  and  extinguishes  its1  benefits,  so  that 
a  subsequent  grantee  who  acquires  title  under  a  deed  containing 
such  a  covenant,  cannot  recover  upon  it  as  against  the  original 
grantor.63 

§  129.  MEASURE  OF  DAMAGES.  General  Rules.  Incumbrances 
are  of  two  kinds,  namely:  (1)  Pecuniary,  or  those  which  the 
debtor,  his  creditors  and  purchasers  from  him,  have  a  right  to 
remove  after  maturity  by  payment  of  the  debt  which  the  incum- 
brance secures1,  such  as  a  mortgage,  deed  of  trust,  judgment  or 
other  lien.64  (2)  Permanent,  or  those  which  cannot  be  removed 
without  the  consent  of  him  who  has  the  right,  such  as  an  out- 
standing life  estate,  an  unexpired  lease,  a.  right  of  way,  easement, 
building  restriction  or  the  like.  If  the  breach  of  the  covenant 
against  incumbrances  consist  in  the  existence  of  a  pecuniary 
incumbrance  upon  the  estate  the  covenantee  can  recover  no  more 
than  nominal  damages  if  he  has  not  been  disturbed  in  the  enjoy- 
ment of  the  estate  or  has  paid  nothing  or  sustained  no  loss  on 
account  of  the  incumbrance.6"  But  he  will  be  entitled  to  nominal 

sale  under  tax  liens  existing  at  the  time  the  original  conveyance  was  made. 
The  court  held  that  the  plaintiff  having  suffered  the  loss  occasioned  by  the 
incumbrance,  was  the  real  party  in  interest  and  acquired  the  right  to  enforce 
the  covenant  by  an  assignment  implied  in  equity  from  the  original,  and  each 
successive  conveyance.  2  Story  Eq.  §  1040. 

"Geiszler  v.  De  Graaf,  166  N.  Y.  329;   59  N.  E.  Rep.  993. 

*4  As  to  the  right  of  a  purchaser  or  creditor  to  pay  off  an  incumbrance  and 
be  subrogated  to  the  rights  of  the  incumbrancer,  see  Sheldon  on  Subrogation, 
§  29  et  seq. 

«5Sedg.  Dam.  p.  953;  Rawle  Covt.  (5th  ed.)  §  188;  3  Washb.  Real  Prop. 
(3d  ed.)  495.  Delavergne  v.  Norris,  7  Johns.  (1ST.  Y.)  359;  5  Am.  Dec.  281, 
leading  case;  Stanard  v.  Eldridge,  16  Johns.  (N.  Y.)  254;  Andrews  v.  Appel, 
22  Hun  (N.  Y.),  474;  Reading  v.  Gray,  37  N.  Y.  Super.  Ct.  70,  distinguish- 
ing Rector  v.  Higgins,  48  N.  Y.  532;  McGuckin  v.  Milbank,  83  Hun  (N.  Y.), 
473;  31  N".  Y.  Supp.  1049.  Prescott  v.  Trueman,  4  Mass.  627;  3  Am.  Rep. 
249;  Wyman  v.  Ballard,  12  Mass.  304;  Brooks  v.  Moody,  20  Pick.  (Mass.) 
474;  Harrington  v.  Murphy,  109  Mass.  299.  Bean  v.  Mayo,  5  Gr.  (Me.)  94; 
Randell  v.  Mallett,  14  Me.  51;  Clark  v.  Perry,  30  Me.  148.  Richardson  v. 
Dorr,  5  Vt.  9.  Briggs  v.  Morse,  42  Conn.  258.  Brown  v.  Brodhead,  3  Whart. 
(Pa.)  88.  This  was  an  action  on  a  title-bond  to  indemnify  the  purchaser 


340  MARKETABLE    TITLE    TO    BEAT,    ESTATE. 

damages  though  the  incumbrance  was  paid  off  before  his  action 

against  incumbrances.  Pomeroy  v.  Burnett,  8  Bl.  (Ind.)  142;  Reasoner  v 
Edmundson,  5  Ind.  393;  Black  v.  Coan,  48  Ind.  385;  Bundy  v.  Ridenour,  6J 
Ind.  406.  Willets  v.  Burgess,  34  111.  494.  Lane  v.  Richardson,  (X.  C.)  1( 
S.  E.  Rep.  189.  Wilcox  v.  Musrhe,  39  MSch.  101;  Norton  v.  Colgrove,  41  Mich 
544.  Egan  v.  Yearman,  (Tenn.)  46  S.  W.  Rep.  1012.  Eaton  v.  Lyman,  3( 
Wis.  41,  Dixox.  C.  J.,  dissenting,  held  the  co\-enant  could  not  even  recovc.j 
nominal  damages.  If  the  grantee,  selling  the  premises,  receive,  in  con 
sequence  of  the  incumbrance,  a  less  price  than  he  would  have  received  if  th< 
incumbrance  had  not  existed,  he  will  be  entitled  to  recover  as  damages  th< 
difference  between  what  he  actually  received  and  what  he  would  have  receive* 
if  there  had  been  no  incumbrance.  McGuckin  v.  Milbank,  152  X.  Y.  297; 
46  X.  E.  Rep.  490. 

Recent  Cases.  D'Amelio  v.  Abraham,  105  N.  Y.  Supp.  1019,  S.  C.,  10J 
X.  Y.  Supp.  1128;  Gen.  Underwriting  Co.  v.  Stilwell,  123  N.  Y.  Supp.  653; 
139  App.  Div.  189;  King  v.  Union  Tr.  Co.,  133  X.  Y.  Supp.  18;  148  App 
Div.  110;  Killilea  v.  Douglas,  133  Wta.  140;  113  N.  W.  411;  126  Am.  St 
Rep.  938;  17  L,  R.  A.  (X.  S.)  1189.  X.  Y.  City  v.  Tranp'n.  Co.,  172  N.  Y 
Supp.  495;  104  Misc.  Rep.  438;  Woods  v.  Bennett,  (Cal.  App.)  181  Pac.  25; 
Internat'l  Dev.  Co.  v.  Clemans,  59  Wash.  398:  109  Pac.  1034;  Seldon  v.  Jones 
Co.,  89  Ark.  234;  116  S.  W.  217;  Ledowsky  v.  Rubin,  194  111.  App.  442.  Ir 
Boice  v.  Coffeen,  158  Iowa  705;  138  X.  W.  857,  it  was  held  that  the  rul( 
stated  in  the  text  does  not  control  in  equity  suits,  and  that  a  court  of  equity 
may  provide  in  the  decree  for  substantial  damages  which  the  covenante< 
must  incur  in  paying  off  an  incumbrance  in  the  future. 

It  is  easy  to  see  that  a  pecuniary  incumbrance  upon  the  premises  may  be  a 
source  of  loss  or  injury  to  the  covenantee  in  some  way  other  than  the  men 
removal  of  the  incumbrance,  and  that  a  breach  of  the  covenant  of  seisin 
may  result  in  serious  loss  to  the  covenantee,  though  the  adverse  title  nevei 
be  asserted.  Thus,  it  frequently  happens  that  negotiations  for  the  sale  ol 
the  property  are  broken  off  upon  the  discovery  of  an  incumbrance  or  a  defect 
in  the  title,  the  purchaser  preferring  to  abandon  his  bargain  rather  than 
await  the  removal  of  the  objection.  In  such  a  case  the  incumbrance,  or  the 
defect,  is  the  immediate  and  proximate  cause  of  the  loss  of  the  sale.  The 
injury  need  not  consist  in  the  loss  of  a  bargain,  or  the  difference  between 
the  consideration  money,  paid  by  the  covenantee,  and  that  which  he  was  tc 
receive  from  the  prospective  purchaser;  the  right  of  action,  if  any  exist 
would  be  for  the  lo»»  of  the  opportunity  to  sell.  This  question  was  rained 
in  McCarty  v.  Leggett,  3  Hill  (X.  Y.),  134,  but  was  not  decided,  the  judg- 
ment of  the  court  below  having  been  reversed,  and  the  case  sent  back  on 
other  grounds.  A  practical  inconvenience,  however,  resulting  from  a  recovery 
of  damages  in  such  a  cane  would  be  that  the  recovery  would  satisfy  the 
breach,  it  !s  apprehended,  and  the  judgment  might  be  pleaded  in  bar  of  any 
further  action  in  cane  the  incumbrance  should  be  enforced,  or  the  cove- 
nantee evicted.  Rawle  Covt.  (5th  ed.)  I  189.  If,  however,  he  should  remove 
the  incumfcrance,  there  seems  to  be  no  reason  why  the  covenantee  should  not, 
in  addition  to  the  amount  paid  for  that  purpose,  recover  damages  for  what- 
ever actual  injury  he  may  have  sustained  from  U*  existence,  provided  the 


COVENANT    AGAINST    INCUMBRANCES.  34*1 

was  commenced.66  In  Massachusetts1  it  has  been  held  that  in  case 
of  a  breach  of  this  covenant,  resulting  from  an  outstanding  inter- 
est in  the  premises  in  favor  of  a  tenant  in  common,  the  covenantee 
may  recover  substantial  damages  though  the  incumbrance  has 
never  been  enforced  by  proceedings  for  partition.67 

The  mere  fact  that  the  property  has  depreciated  in  value  during 
the  period  intervening  between  the  execution  of  the  deed  and  the 
time  when  incumbrances  on  the  property  became  barred  by  the 
statute  of  limitations,  does  not  entitle  the  covenantee  to  damages, 
where  he  has  paid  nothing  on  account  of  the  incumbrance,  and 
has  never  been  disturbed  in  the  possession  and  enjoyment  of  the 

•  fiS 

premises. 

In  a  case  in  which  the  deed  contained  a  covenant  to  "  pay  and 
satisfy  "  011  demand,  a  particular  judgment  against  the  grantor, 
which  was  a  lien  on  the  premises  conveyed,  it  was  held  that  the 
covenantee  was  entitled  to  recover  the  amount  of  the  judgment 
as  damages  for  a  breach  of  the  covenant,  though  he  had  neither 
paid,  nor  had  been  called  upon  to  pay,  anything  on  that  account. 
The  distinction  made  by  the  court  was  that  a  covenant  to  "  pay 
and  satisfy "  was  more  onerous  than  a  mere  covenant  of 
indemnity.69 

It  seems  that  a  judgment  for  nominal  damages  for  a  breach  of 
the  covenant  against  incumbrances  will  operate  as  a  bar  to  any 
future  recovery  upon  the  covenant,  after  actual  damages  shall  have 
been  sustained.70  Practically  the  rule  is  of  no  great  importance, 

total  recovery  do  not  exceed  the  consideration  money  and  interest.  In  Har- 
rington v.  Murphy,  109  Mass.  299,  it  was  held  that  the  covenantee  could  not 
recover  as  damages  a  sum  paid  by  him  to  an  auctioneer  for  selling  the  land 
to  a  person  who  refused  to  complete  the  purchase  on  discovering  an  incum- 
brance. 

"  Smith  v.  Jefts.  44  N~.  H.  482.  Hasselbusch  v.  Mohmking,  76  N.  J.  L.  .9-61 ; 
73  Atl.  961.  In  Harwood  v.  Lee,  (Iowa)  52  N".  W.  Rep.  521,  the  court  refused 
to  reverse  a  judgment  merely  for  failure  to  give  nominal  damages  for  a 
breach  of  the  covenant  against  incumbrances 

67  Comings  v.  Little,  24  Pick.    (Mass.)    266. 

•"Egan  v.  Yeaman,   (Tenn.)   46  S.  W.  Rep.  1012. 

*  Bristor  v.  McBean,  37  N.  Y.  Supp.  18 ;   1  App.  Div.  217. 

70Rawle  Covts.  for  Title  (5th  ed.),  §§  176,  189.  Taylor  v.  Heitz,  87  Mo. 
660.  In  Eaton  v.  Lyman,  30  Wis.  41,  it  was  held  that  the  plaintiff  was 
entitled  to  nominal  damages,  though  he  had  not  removed  the  incumbrance, 


342  MARKETABLE    TITLE    TO    REAL    ESTATE. 

inasmuch  as  an  action  upon  the  covenant  will  seldom  be  brought 
until  the  ineumbranco  has  been  actually  or  constructively  enforced, 
and  the  covenanter  has  sustained  actual  damages,  in  which  case, 
as  we  have  seen,  the  plaintiff  will  be  entitled  to  substantial  dam- 
ages. 

§  130.  Measure  of  damages  where  covenantee  discharges 
incumbrance.  The  covenantee  may,  of  course,  pay  off  an  incum- 
brance on  the  premises,  and  thereby  become  entitled  to  substantial 
damages  for  broach  of  the  covenant,  without  waiting  to  be 
evicted,71  provided  the  grantor  has  refused  to  remove  the  incum- 
brance after  notification  and  request."  But  in  such  case  he  can 
recover  as  damages  no  more  than  the  amount  actually  and  fairly 

but  the  court  declined  to  say  whether  a  second  action  could  be  maintained 
and  damages  recovered  if  the  incumbrance  should  be  enforced  and  actual 
damages  sustained.  In  Harsin  v.  Oman,  08  Wash.  281;  123  Pac.  1,  it  was 
held  that  the  judgment  for  damages  would  not  bar  a  suit  after  actual  'lam- 
.!-•  -  had  been  sustained. 

nHall  v.  Dean,  13  Johns.  (X.  Y.)  105.  Rainey  v.  Hines,  121  N.  C.  318; 
28  S.  K.  Rep.  410.  King  v.  Union  Tr.  Co.,  133  N.  Y.  Stipp.  18;  148  App. 
Div.  110;  Thompson  v.  Conran,  (Mo.  App.)  181  S.  W.  505;  Pee  Dee  Stores 
Co.  v.  Hamer,  02  S.  C.  423;  75  S.  E.  605. 

71  Warren  v.  Stoddart,  (Idaho)  50  Pae.  Rep.  540.  Greene  v.  Tallmnn,  20 
X.  Y.  101 ;  75  Am.  Dec.  384.  Here  the  incumbrance  complained  of  was  a 
species  of  quit  rent  due  the  city  of  Xew  York.  The  court,  by  STRONG,  J., 
said,  that  in  order  to  avail  himself  of  the  discharge  of  the  incumbrance  the 
covenantee  "would  be  bound  to  prove  either  that  what  had  been  paid  by  him 
was  actually  due,  or  that  he  had  given  notice  to  his  vendor  requiring  that 
such  vendor  should  pay  off  the  ineumltrance  within  a  limited  time,  or  that, 
otherwise,  the  purchaser  would  pay  a  specified  amount.  Some  of  the  authori- 
ties lay  down  the  rule  that  the  purchaser  may  set  off  or  recover  the  amount 
paid,  without  any  qualification,  but  it  seems  to  us  that  a  vendor  who  has 
been  innocent  of  any  fraud  should  have  an  opportunity  to  set  himself  right, 
before  he  should  be  obliged  to  pay,  or  allow  more  than  the  amount  actually 
due.  It  is,  I  think,  well  settled  that  where  the  incumbrance  has  not  been 
paid  off  by  the  purchaser  of  the  land,  and  he  has  remained  in  quiet  and 
peaceable  possession  of  the  premises,  he  cannot  have  relief  against  his  con- 
tract to  pay  the  purchase  money,  or  any  part  of  it,  on  the  ground  of  defect 
of  title.  The  reason  is,  that  the  incumbrance  may  not,  if  let  alone,  ever  be 
asserted  against  the  purchaser,  as  it  may  be  paid  off  or  satisfied  in  some 
other  wny."  The  purchaser's  damages  include  the  amount  expended  by  him 
in  getting  in  an  outstanding  tax  title;  but  he  has  the  burden  of  showing 
the  validity  of  the  tax  title.  Dininny  v.  Brown,  133  X.  Y.  Supp.  314;  148 
App.  Div.  671. 


COVENANT    AGAINST    INCUMBEANCES.  343 

paid  to  discharge  the  incumbrance,73  together  with  compensation 
for  his  trouble  and  expenses  incurred  in  that  behalf.74  He  will 
be  entitled  to  that  amount  as  damages  even  though  paid  after  the 
institution  of  his  action  on  the  covenant,75  or  before  the  incum- 
brance  was  due.76  But,  it  seems,  that  in  order  to  recover  fees  paid 
counsel  in  defending  a  suit  to  enforce  the  incumbrance,  he  must 
have  given  the  covenantor  notice  to  defend  the  suit.77  The  cove- 

73Washb.  Real  Prop.  (4th  ed.)  495;  Sedg.  Dam.  198;  Rawle  Covt.  (5th  ed.) 
§  192;  4  Kent  Com.  (llth  ed.)  563.  Delavergne  v.  Norris,  7  Johns.  (N.  Y.) 
358 ;  5  Am.  Dec.  281 ;  Braman  v.  Bingham,  26  N.  Y.  483,  494.  McGuckin  v. 
Millbank,  31  N.  Y.  Supp.  1049;  83  Hun,  473.  Hastings  v.  Hastings,  58  N.  Y. 
Supp.  416;  27  Misc.  244.  Seventy-third  St.  Bldg.  Co.  v.  Jencks,  46  N.  Y. 
Supp.  2;  9  App.  Div.  314.  Prescott  v.  Trueman,  4  Mass.  627;  3  Am.  Dec. 
249;  Smith  v.  Carney,  127  Mass.  179;  Coburn  v.  Litchfield,  132  Mass.  449. 
Richmond  v.  Ames,  164  Mass.  467;  41  N.  E.  Rep.  671.  Davis  v.  Lyman,  6 
Conn.  255,  obiter.  Cole  v.  Kimball,  52  Vt.  639;  Downer  v.  Smith,  38  Vt.  464. 
Willson  v.  Willson,  5  Fost.  (N.  H.)  229;  57  Am.  Dec.  320.  Reed  v.  Pierce, 
36  Me.  455;  58  Am.  Dec.  761.  Mayo,  etc.  v.  Maxwell,  (Ark.)  215  S.  W. 
678;  Boice  v.  Coffeen,  158  Iowa  705;  138  N.  W.  857;  Helm  v.  Griffith,  (Ala.) 
82  So.  570.  Anderson  v.  Knox,  20  Ala.  156.  Amos  v.  Cosby,  74  Ga.  793. 
Schumann  v.  Knoebel,  27  111.  175 ;  McDowell  v.  Milroy,  69  111.  498.  Rinehart 
v.  Rinehart,  91  Ind.  89.  Edington  v.  Nix,  49  Mo.  134;  Kellogg  v.  Malin,  62 
Mo.  429;  11  Am.  Rep.  426.  Guthrie  v.  Russell,  46  Iowa,  269;  26  Am.  Rep. 
135.  Pillsbury  v.  Mitchell,  5  Wis.  17.  Pearson  v.  Ford,  1  Kan.  App.  580; 
42  Pac.  Rep.  257.  Dahle  v.  Stakke,  12  N.  Dak.  325;  96  N.  W.  Rep.  353; 
even  though  the  covenantor  deceived  him  as  to  the  existence  of  the  incum- 
brance; Thomas  v.  Ellison,  (Tex.  Civ.  App.)  116  S.  W.  1141.  Where  the 
covenantee  discharged  a  mortgage  on  the  premises  executed  to  secure  a  debt, 
and  to  indemnify  the  mortgagee  against  certain  liabilities,  but  paid  nothing 
on  account  of  the  liabilities  in  question,  it  was  held  that  he  was  only  entitled 
to  recover,  as  damages,  the  amount  he  had  actually  paid  out.  Comings  v. 
Little,  24  Pick.  (Mass.)  266.  The  grantee  cannot  recover  a  sum  paid  by 
him  to  a  mortgagor  for  release  of  his  right  to  redeem  after  that  right  had 
become  barred  by  the  Statute  of  Limitations.  McMichael  v.  Russell,  74 
N".  Y.  Supp.  212;  68  App.  Div.  104. 

"Willson  v.  Willson,  5  Fost.  (N.  H.)  229;  57  Am.  Dec  320.  Lost  time, 
legal  expenses  and  car  fares  incurred  in  removing  from  the  record  an  appar- 
ent lien,  which  the  covenantor  had  discharged,  are  not  within  a  statute  which 
provides  that  a  grantee  may  recover  for  all  damages  sustained  in  removing 
an  incumbrance  on  the  premises,  when  there  is  a  covenant  against  incum- 
brances.  Bradshaw  v.  Crosby,  (Mass.)  24  N".  E.  Rep.  47. 

"Brooks  v.  Moody,  20  Pick.  (Mass.)  475.  Kelly  v.  Lowe,  18  Me.  244. 
Mosely  v.  Hunter,  15  Mo.  322. 

7«Snyder  v.  Lane,  10  Ind.  424. 

"Richmond  v.  Ames,  164  Mass.  467;  41  N.  E.  Rep.  671. 


344  MARKETABLE    TITLE    TO    REAL    ESTATE. 

nantee  is  not  necessarily  entitled  to  recover  as  damages  the  whole 
sum  paid  by  him  to  remove  an  incumbrance  on  the  premises, 
even  though  such  sum  do  not  exceed  the  purchase  price  of  the 
estate.  He  is  entitled  to  recover  only  what  he  fairly  and  reason- 
ably paid  for  that  purpose.78  Of  course,  if  it  should  appear  that 
the  incumbrance  removed  was  the  first  lien  on  the  premises,  and 
could  have  been  satisfied  in  full  if  enforced,  and  the  covenantee 
had  paid  the  full  face  value  of  the  incumbrance,  it  is  apprehended 
that  such  payment  would  be  deemed  fair  and  reasonable,  for  it 
is  to  be  presumed  that  no  creditor  would  part  with  a  solvent 
security  for  less  than  its  face  value.  But  in  any  case  in  which  it 
might  appear  that  the  incumbrance,  either  because  a  junior  lien  ™ 
or  because  the  premises  had  decreased  in  value,  or  for  any  other 
reason,  was  not  worth  the  sum  paid  to  remove  it,  the  grantee  must 
show  that  the  sum  so  paid  was  the  fair  and  reasonable  value  of 
the  incumbrance.  He  will  also  have  the  burden  of  showing  that 
the  incumbrance  was  valid  and  enforcible  against  the  premises.80 
If  the  covenantee  buys  in  an  incumbrance  he  must  extinguish  it 
by  foreclosure  or  otherwise  before  he  will  be  permitted  to  recover 
as  for  a  breach  of  covenant  against  incumbrances.  The  reason 
is  that  if  he  were  permitted  to  recover  substantial  damages  with- 
out extinguishing  the  incumbrance  he  might  be  in  a  position  to 
perpetrate  a  fraud  ujxm  the  covenantor  by  transferring  his  notes 
secured  by  the  incumbrance  to  innocent  purchasers  for  value 
before  maturity.81  The  covenantee  paying  to  his  grantee  the 
amount  of  an  incumbrance  on  the  land  must  show,  as  against  the 
covenantor,  that  the  payment  removed  the  incumbrance,  or  that 
his  grantee  took  subject  thereto.82 

The  covenantee  cannot  recover  a  sum  paid  by  him  to  extinguish 

n2  Devlin  on  Deeds,  5  910.  GiVbert  v.  Rushmer.  49  Kans.  632;  31  Par. 
Rep.  123.  Anderson  v.  Knox,  20  Ala.  156.  Guthrie  v.  Russell,  46  Iowa,  269: 
26  Am.  Rep.  125. 

WA»  in  Gilbert  v.  Rushmer,  49  Kans.  632;  31  Pac.  Rep.  123. 

*  Robinson  v.  Bierce,  102  Tcnn.  428;  52  S.  W.  Rep.  992;  47  L.  P.  A.  275. 
Maitlen  v.  Maitlen,  44  Ind.  App.  559;  89  X.  K.  966;  Globe  Merc.  Co.  v.  Perkey, 
(Ind.  App.)  121  X.  E.  844. 

"Ilarwood  v.  Lee,   (Iowa)   52  X.  W.  Rep.  521. 

"Ostrow  v.  Lwer,  151  N.  Y.  Supp.  612,  citing  Delavergne  v.  Norris,  7 
Johns.  358;  5  Am.  Dec.  281. 


COVENANT    AGAINST    1NCUMBEANCES.  345 

an  incumbrance  on  the  premises  if  the  right  to  enforce  the  incum- 
brance  was  barred  by  the  statute  of  limitations  at  the  time  of 
the  payment.83 

In  Massachusetts,  as  has  already  been  seen,  if  the  covenantee 
be  evicted  by  the  enforcement  of  an  incumbrance,  but  has  a  right 
to  redeem  the  premises,  the  measure  of  his  damages  will  be  the 
amount  he  will  be  obliged  to  pay  for  the  purpose  of  redemption.84 
This  rule  seems  eminently  fair  and  reasonable,  since  it  prevents 
the  covenantee  from  recovering  the  consideration  money  and 
interest  from  the  covenantor,  and  then  regaining  the  estate  by 
redeeming  it  with  a  smaller  sum.  The  earlier  Massachusetts  cases 
hold  that  in  case  of  eviction  under  an  incumbrance  the  measure 
of  damages  is  the  purchase  money  and  interest,85  and  there  are 
several  decisions  to  the  same  effect  in  other  States,86  but  it  does  not 
in  them  "appear  that  the  covenantee  had  a*  right  to  redeem,  or  that 
the  limitation  of  his  damages  to  the  redemption  money  was 
demanded  by  the  defendant.  No  duty,  however,  devolves  upon  the 
covenantee  to  discharge  the  incumbrance  before  it  is  enforced,87 
or  to  redeem  the  premises  after  enforcement,88  and  his  failure 
to  redeem,  by  reason  of  which  the  title  of  the  purchaser  under 
the  incumbrance  becomes  absolute,  will  not  affect  his  right  to 
recover  the  consideration  money  and  interest  as  damages.  Nor 
will  the  measure  of  his  damages  be  affected  by  the  fact  that  he 
bought  with  notice  of  the  incumbrance.89  Evidence  of  the  pur- 
poses for  which  the  covenantee  bought  the  premises,  e.  g.,  as  a 
speculation,  is  inadmissible  for  the  purpose  of  aggravating  the 


v.  Russell,  74  N.  Y.  Supp.  212;  68  App.  Div.  104. 

84  Ante,  this  section.     The  rule  was  so  stated  in  an  early  edition  of  Mr. 
Rawle's  Covenant  for  Title,  but  in  the  last  edition  of  that  valuable  treatise 
(5th  ed.,  §  182)   it  has  fallen  a  sacrifice  to  the  author's  theory  that  the  cove- 
nantee cannot  be  deprived  of  his  right  to  damages  by  the  subsequent  acquisi- 
tion of  a  perfected  title  to  the  estate. 

85  Chapel  v.  Bull,  17  Mass.  213;   Jenkins  v.  Hopkins,  8  Pick.    (Mass.)    348. 
89  Waldo  v.  Long,  7  Johns.   (N".  Y.)    173;  Bennet  v.  Jenkins,  13  Johns.   (N. 

Y.)  50.     Stewart  v.  Drake,  4  Halst.  (N.  J.)   139.    King  v.  Kerr,  5  Ohio,  155; 
22  Am.  Dec.  777. 

87  Bank  v.  Clements,  16  Ind.  132. 

88  Sanders  v.  Wagner,  32  N.  J.  Eq.  506. 

8»Mohr  v.  Parmelee,  43  N.  Y.  S.  C.  320.     Snyder  v.  Lane,  10  Ind.  424;  Med- 
ler  v.  Hiatt,  8  Ind.  171. 

44 


346  MARKETABLE    TITLE    TO    REAL    ESTATE. 

damages,90  unless  it  can  be  shown  that  the  intention  with  which 
the  premises  were  bought  was  known  to  the  other  party  and  entered 
into  the  consideration  of  the  sale.'1  Except  where  the  right  of 
redemption  exists,  the  measure  of  the  covenantee's  damages  in 
case  of  eviction  is  the  same,  whether  the  action  be  for  a  breach 
of  the  covenant  of  warranty,  or  that  against  incumbrances.  In 
neither  case  can  the  plaintiff  recover  for  his  improvements  or  the 
increased  value  of  the  estate.92 

§  131.  Damages  cannot  exceed  purchase  money  and  interest. 
But  while  the  covenantee  is,  as  a  general  rule,  entitled  to 
recover  as  damages  the  amount  paid  by  him  to  remove  the  incum- 
brance,  it  has  been  held  that  such  recovery  cannot  exceed  the 
purchase  price  of  the  land  with  interest.  This  limitation  of 
the  rule  has  been  recognized  in  most  of  the  States  in  which  it  has 
been  considered.93  In  Missouri,  however,  it  has  been  rejected.94 

"Batchelder  v.  Curtis,  3  Gush.  (Mass.)  204;  Greene  v.  Creighton,  7  R,  I.  10. 

w  Foster  v.  Foster,  62  N.  H.  46. 

"Stewart  v.  Drake,  4  Halst.  (N.  J.)   139. 

*4  Kent  Com.  (llth  ed.)  503;  Rawle  Covt.  §  193.  Dimmick  v.  Lockwood, 
10  Wend.  (X.  Y.)  142;  Grant  v.  Tallman,  20  N.  Y.  191;  75  Am.  Dec.  384; 
Andrews  v.  Appel,  22  Hun  (X.  Y.).  429.  Boyd  v.  Whitfleld,  19  Ark.  447; 
Collier  v.  Cowger,  52  Ark.  322;  12  S.  W.  Rep.  702.  Kelsey  v.  Remer,  43 
Conn.  129;  21  Am.  Rep.  638.  Foote  v.  Unmet,  10  Ohio,  333;  36  Am.  Dec.  90; 
Xyce  v.  Obertz,  17  Ohio,  77;  49  Am.  Dec.  444.  Eaton  v.  Lyman,  30  Wis.  41. 
Willetts  v.  Burgess,  34  111.  494,  obiter.  He  cannot  recover  the  increased 
value  of  the  land  resulting  from  improvements  made  by  him.  King  v.  Union 
Tr.  Co.,  133  X.  Y.  Supp.  18;  148  App.  Div.  110.  Knadler  v.  Sharp,  41  Iowa, 
332,  has  'been  supposed  to  depart  from  the  rule  limiting  damages  for  breach 
of  the  covenant  against  incumbrances  to  the  purchase  money  and  interest. 
Rawle  Covt.  (5th  ed.)  275.  Guthrie  v.  Russell,  46  Iowa,  271;  26  Am.  Dec. 
135.  It  is  by  no  means  clear  that  such  was  the  intention  of  the  court.  The 
opinion  in  the  case,  however,  is  somewhat  obscure.  On  page  237  it  is  said 
that  the  grantees  had  a  right  to  the  benefit  of  their  purchases  and  not  simply 
to  a  return  of  their  money  and  interest.  And  in  the  next  sentence  the 
apparently  conflicting  statement  is  made  that  any  expenditure  the  grantee 
mipht  be  required  to  mnke  in  order  to  protect  his  title,  not  exceeding  the 
purchase  money  and  interest,  he  might  properly  mnke  and  demand  its  return 
from  the  grantor,  etc.  In  Hawthorne  v.  City  Bank,  34  Minn.  382;  26  X.  W. 
1  :<•!>.  4,  it  was  held  that  a  statute  providing  that  the  covenantor  should,  in 
case  an  incumbrance  appeared  of  record  to  exist  on  the  premises,  be  liable 
for  all  damage*  incurred  in  removing  the  same,  applied  only  to  incumbrances 
appearing  of  record  lut  not  exit  ting  in  fact,  a»d  was  not  intended  to  change 
the  rule  limiting  the  damage*  for  a  breach  of  the  covenant  to  the  considera- 
tion money. 

••Walker  v.  Dearer,  5  Mo.  App.  139,  where  it  was  held  that  the  covenantee 


COVENANT    AGAINST    INCUMBRANCES.  347 

In  Massachusetts  it  has  been  held  that  the  recovery  cannot  exceed 
the  value  of  the  land  at  the  time  the  incumbrance  was  removed,95 
and  this,  it  is  presumed,  would  be  the  rule  in  each  of  the  New 
England  States  in  which  the  covenantee  is  allowed  as  damages  the 
value  of  the  land  at  the  time  of  eviction.  The  rule  limiting  the 
damages  to  the  consideration  money  and  interest,  of  course  denies 
to  the  plaintiff  any  recovery  for  the  value  of  improvements  placed 
by  him  on  the  land.  Incumbrances  must  appear  of  record  in  order 
to  bind  the  property  at  the  time  of  purchase,  and  if  the  plaintiff 
improved  the  estate  without  examining  the  title,  the  loss  of  the 
improvements  is  the  result  of  his  own  negligence.96  The  payment 
of  the  incumbrance  by  the  covenantee  is  a  material,  traversable 
fact,  and  in  an  action  on  the  covenant  should  be  set  forth  in  the 
declaration  or  complaint,  so  that  issue  may  be  taken  upon  it.97 

If  the  consideration  expressed  in  the  deed  be  merely  nominal, 
but  the  real  consideration  is  some  benefit  to  accrue  to  the  grantor 
not  easily  susceptible  of  exact  measurement  in  money,  such,  for 
example,  as  the  increase  in  the  value  of  adjoining  property 
belonging  to  the  grantor  from  the  use  to  be  made  of  the  granted 
premises  by  the  grantee,  the  measure  of  damages  will  be  the 
amount  actually  paid  by  the  grantee  to  protect  himself  against 
the  incumbrance,  not  exceeding  the  then  value  of  the  premises.98 

§  132.  Measure  of  damages  where  the  incumbrance  is  per- 
manent. Where  the  incumbrance  is  permanent,  or  one  that  ihc 
covenantee  cannot  remove  as  a  matter  of  right,4  he  will  be  entitled 
to  a  just  compensation  for  the  injury  sustained,99  the  measure  of 

is  entitled  to  recover  what  he  fairly  and  reasonably  paid  to  remove  the 
incumbrance,  regardless  of  the  consideration  money  and  interest,  and  that 
the  question  of  the  fairness  and  reasonableness  of  the  payment  so  made  was 
for  the  jury.  Dimmick  v.  Lockwood,  supra,  was  expressly  disapproved.  See 
also,  Henderson  v.  Henderson,  13  Mo.  151;  St.  Louis  v.  Bissell,  46  Mo.  157; 
Winningham  v.  Pennock,  36  Mo.  App.  688. 

95Xorton  v.  Bafocock,  2  Met.    (Mass.)    510. 

94  Dimmick  v.  Lockwood,  10  Wend.   (N.  Y.)    142. 

97Pillsbury  v.  Mitchell,  5  Wis.  17,  citing  De  Forest  v.  Leete,  16  Johns. 
(N.  Y.)  122.  Funk  v.  Voneida,  11  S.  &  R.  (Pa.)  109;  14  Am.  Dec.  617. 
Tufts  v.  Adams,  8  Pick.  (Mass.)  549. 

98  Utica  C.  &  S.  V.  R.  Co.  v.  Gates,  47  X.  Y.  Supp.  231 ;  21  Misc.  205,  in 
which  case  the  granted  premises  were  to  be  used  for  railroad  purposes. 

"•3  Washb.  Real  Prop.    (4th  ed.)   495;   Sedg.  Dam.    (6th  ed.)    199;   Rawle 


348  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

which  will  be,  as  a  general  rule,  the  difference  between  the  present 
value  of  the  premises  and  their  fair  market  value  without  the  in- 

Covt.  291.  Prescott  v.  Trueman.  4  Mass.  630;  3  Am.  Dec.  249;  Harlow  v. 
Thomas,  15  Pick.  (Mass.)  69.  Richmond  v.  Ames,  164  Mass.  467;  41  N.  E. 
Rep.  671.  Hubbard  v.  Norton,  10  Conn.  4oO:  Mitchell  v.  Stanley,  44  Conn. 
312.  The  incumbrance  complained  of  in  this  case  was  a  right  to  pass  and 
repass  on  the  premises  for  the  purpose  of  cleaning  a  canal.  The  actual  dam- 
age was  found  to  be  ten  dollars,  but  that  by  reason  of  the  easement  the 
value  of  the  land  was  diminished  by  $750.  Judgment  was  rendered  for  $750. 
Mackey  v.  Harmon,  34  Minn.  168;  24  X.  W.  Rep.  702.  The  measure  of  dam- 
ages  for  a  breach  of  the  covenant  against  incumbrances  resulting  from  a 
building  restriction  is  the  actual  impairment  of  the  value  of  the  estate 
because  of  the  incumbrance.  Foster  v.  Foster,  62  N.  H.  46.  Where  the 
incumbrance  was  the  prior  condemnation  of  a  drainage  ditch  right  of  way 
through  timber  lands,  the  measure  of  damages  was  held  to  be  the  purchase 
price  of  the  timber  lost,  with  interest.  Scott  v.  Tanner  (Mo.  App.)  208 
S.  W.  264.  In  Kellogg  v.  Malin,  62  Mo.  429;  11  Am.  Rep.  426,  the  incum- 
brance complained  of  was  a  right  of  way  through  the  warranted  land.  The 
court,  after  declaring  that  the  grantee  was  entitled  only  to  nominal  dam- 
ages where  he  had  not  suffered  any  actual  injury  from  the  incumbrance,  and 
that  if  he  removed  the  incumbrance  he  was  entitled  to  recover  what  he  paid 
for  that  purpose,  if  reasonable,  continued:  "When,  however,  the  incum- 
hrance  has  inflicted  an  actual  injury  upon  the  purchaser,  the  rule  can  only 
be  generally  stated  to  be  that  the  damages  are  to  be  proportioned  to  the 
actual  loss  sustained.  Thus,  if  the  incumbrance  be  of  a  character  which 
cannot  be  extinguished,  such  as  an  easement  or  servitude,  an  existing  lease 
or  the  like,  it  is  said  that  the  damages  are  to  be  estimated  by  the  jury 
according  to  the  injury  arising  from  its  continuance.  There  is  a  good  reason 
for  the  distinction.  In  case  of  an  incumbrance  by  an  ordinary  lien  or 
mortgage,  the  grantee  may  pay  off  the  inrumbnince  at  any  time  and  free 
the  premises,  or  the  person  who  made  the  lien  or  mortgage  may  extinsjui>h 
them,  and  the  grantee  may  never  be  injured.  But  an  easement  or  servitude  is 
unextinguishable  by  any  act  of  the  parties,  either  grantor  or  grantee,  and 
if  its  continuance  is  permanent  the  damages  must  be  assessed  accordingly." 
Whiteside  v.  Magruder,  75  Mo.  App.  364.  In  Greene  v.  Creighton,  7  R.  I. 
10.  it  was  held  that  the  covenantor  will  not  be  liable  for  damages  arising 
from  the  unfitness  of  the  premises,  by  reason  of  the  casement,  for  use  in 
riiimeetinn  with  adjoining  premises,  for  which  use  the  covcnantee  purchased 
the  premises,  the  covenantor  being  ignorant  of  such  intended  use.  Such 
damages  are  too  remote.  A  party  wall  standing  wholly  on  the  warrnnt-'d 
land  is  an  incumbrance  for  which  the  grantee  is  entitled  to  more  tlmn 
nominal  damage*.  Mohr  v.  Parmelee,  43  X.  Y.  S.  C.  320.  In  Ko^tenbader  v. 
Pierce,  41  Iowa,  204,  where  the  incumbrance  consisted  of  a  railroad  right  of 
way  through  the  premises,  it  was  held  that  the  appreciation  in  value  of  the 
remainder  of  the  land  could  not  b*  considered  in  estimating  the  damages 
to  the  <  Mv.-nant.-r.  A  division  to  the  contrary  was  m.idr  in  U'adhams  v. 
Swan,  109  111.  46.  An  annuity  charged  upon  the  premises  in  favor  of  a  widow 
is  not  a  permanent  incumbrance  entitling  the  purchaser  to  damages  for  actual 


COVENANT    AGAINST    INCUMBRANCES.  349 

cumbrance.1  If  the  incumbrance  consist  of  an  unexpired  lease  of 
the  premises,  the  whole  purchase  money  cannot  be  recovered  as 
damages.2  In  such  a  case  it  has  been  held  that  the  annual  value 
of  the  land,  or  the  interest  on  the  purchase  money,  is  the  proper 
rule  of  damages.3  This,  however,  has  been  denied,  and  the  better 
rule  declared  to  be  that  the  covenantee  is  entitled  only  to  a  just 
compensation  for  whatever  injury  he  may  have  suffered,  to  be 
determined  by  the  jury  from  all  the  circumstances  of  the  case,  for 
which  purpose  the  annual  value  or  annual  interest  on  the  purchase 
money  may  be  taken  into  consideration.4  If  he  has  sustained  no 
loss  or  injury  on  account  of  the  incumbrance,  he  will  be  entitled 
to  nominal  damages  only.5  If  the  covenantee  has  been  kept  out 
of  the  estate  by  a  life  tenant,  the  measure  of  damages  will  be 
the  value  of  the  estate  for  the  time  that  he  has  been  deprived  of 
its  enjoyment.6 

injury  to  the  estate.  It  is  a  pecuniary  incumbrance,  which  will  entitle  him 
to  damages  only  so  far  as  he  may  have  made  payments  thereon.  Myers  v. 
Brodbeck,  110  Pa.  St.  198;  5  Ail.  Rep.  662. 

*Sutton  v.  Baillie,  65  Law  Times  Rep.  528.  Bronson  v.  Coffin,  108  Mass. 
175;  11  Am.  Rep.  335.  Streeper  v.  Abelin,  59  Mo.  App.  485.  Smith  v.  White, 
71  W.  Va.  639;  78  S.  E.  378;  Helton  v.  Asher,  135  Ky.  751;  123  S.  W.  285; 
Tuskegee  Land  Co.  v.  Realty  Co.,  5  Ala.  App.  499;  59  So.  557.  The  real 
measure  of  damages  is  the  amount  of  actual  injury  to  the  premises,  and  not 
such  sum  as  the  grantee  might  be  required  to  pay  to  remove  the  easement. 
Smith  v.  Davis,  (Kans.)  24  Pac.  Rep.  428. 

2Rickert  v.  Snyder,  9  Wend.   (N.  Y.)    423. 

"Rickert  v.  Snyder,  9  Wend.  (N.  Y.)  423.  Porter  v.  Bradley,  7  R.  I.  542. 
Moreland  v.  Metz,  24  W.  Va.  137;  49  Am.  Rep.  246.  Barker  v.  Denning, 
91  Kan.  485;  138  Pac.  573;  Malsbary  v.  Jacobus,  88  Neb.  751;  130  N.  W. 
524.  In  O'Connor  v.  Enos,  56  Wash.  448;  105  Pac.  1039,  it  was  held  that 
the  measure  of  the  covenantee's  damages  was  the  reasonable  rental  value 
of  the  premises  during  the  time  the  possession  was  withheld. 

4Batchelder  v.  Sturgis,  3  Gush.  (Mass.)  204,  disapproving  Rickert  v. 
Snyder,  supra.  Brass  v.  Vandecar,  (Nebr.)  96  N.  W.  Rep.  1035.  The 
measure  of  damages  is  the  rental  value  of  the  land  for  the  unexpired  term. 
Wragg  v.  Meade,  120  Iowa,  319;  94  N.  W.  Rep.  856.  Estep  v.  Bailey,  (Oreg.) 
185  Pac.  227.  In  Hartman  v.  Stoll  (Mich.)  171  N".  W.  369,  the  damages 
were  limited  by  the  court  to  the  amount  paid  by  the  covenantee  to  the 
tenant  in  consideration  of  his  removal  from  the  premises.. 

BFishel  v.  Browning,  145  N.  C.  71;  58  S.  E.  759;  Schwartz  v.  Black,  131 
Tenn.  360;  174  S.  W.  1146;  L.  R.  A.  Ann.  1915  D,  898;  Ann.  Gas.  1916  C, 
1195,  where  the  incumbrance  complained  of  was  a  railway  across  the  premises, 
which  the  court  held  to  be  a  benefit,  instead  of  injury,  to  the  land. 

•  Christy  v.  Ogle,  33  III.  296. 


350  MARKETABLE    TITLE    TO    REAL    ESTATE. 

The  fair  annual  rent  of  the  premises  will,  in  the  absence  of 
evidence  to  the  contrary,  be  taken  to  be  that  paid  by  the  tenant  in 
possession.7  If  the  incunibrance  consist  oi  a  present  outstanding 
life  estate  it  has  been  held  that  the  value  of  that  estate,  as  gov- 
erned by  the  probable  duration  of  the  life  of  the  tenant,  is  the 
measure  of  the  plaintiff's  damages,  and  that  the  jury  may  make 
use  of  approved  tables  of  longevity  in  computing  the  damages.8 
It  may  be  observed  here  that  wherever,  as  in  the  case  just  men- 
tioned, the  coverrantee  is  entitled  to  prospective  as  well  as  past 
damages  for  a  breach  of  the  covenant  against  incumbrances  by 
which  he  is  kept  out  of  the  estate,  he  must  include,  both  in  his 
recovery.  He  cannot  take  judgment  for  the  value  of  the  estate 
up  to  the  time  of  verdict,  and  after  the  estate  has  expired  main- 
tain another  action  to  recover  the  value  for  the  time  intervening 
between  the  judgment  in  the  first  action  and  the  expiration  of  the 
estate.  There  can  be  but  one  recovery  for  one  breach  of  the  cove- 
nant against  incumbrances,  and  the  judgment  for  the  annual  value 
of  the  estate  accrued  at  that  time  would  be  a  bar  to  any  further 
action  for  the  same  breach.9  Where  the  incunibrance  complained 
of  is  an  easement  which  has  never  been  used,  and  from  which  the 
covenantee  has  suffered  no  real  injury,  it  has  been  held  that  he 
can  recover  only  nominal  damages.10  But  the  fact  that  an  ease- 
ment or  servitude  was  extinguished  without  expense  to  the  plain- 
tiff before  action  brought,  will  not  of  necessity  deprive  him  of 
the  right  to  substantial  damages.  He  may  have  been  prevented 
from  improving  the  estate,  or  may  have  been  otherwise  injured 
by  the  existence  of  the  incunibrance.  He  is  entitled  to  comjx^nsa- 
tion  for  whatever  actual  damage  he  may  have  suffered.11 

'Moreland  v.  Met*.  24  W.  Va.  137;  4J>  Am.  Rep.  246. 

•  Mills  v.  Catlin.  22  Vt.  08. 

•Rawle  Covt.  {  ISO.  Taylor  v.  Hertz,  87  Mo.  6flO.  But  a  judgment  foh 
nominal  damagcK  in  an  action  for  breach  of  the  covenant  against  incum- 
brancea  in  no  bar  to  an  action  on  a  covenant  of  warranty,  contained  in  the 
Mine  conveyance,  brought  after  the  incnmhrance  was  enforced  and  the  plain- 
tiff evicted.  Donnell  v.  Thompson,  1  Fairf.  (Me.)  170;  25  Am.  Dec.  210. 

"  Ronenberger  v.  Keller.  33  Grat.  (Va.)  403.  Kn»ign  v.  Colt,  75  Conn. 
Ill;  52  Atl.  Rep.  820.  Hunter  v.  Keightley,  184  Ky.  835;  213  S.  \V.  201. 
an  unopened  railroad  right  of  way. 

"Wetherbee  v.  Bennett,  2  Allen  (Ma*».),  428.  HOAR.  ,T..  Having:  "The 
incumbrnnce  waff  a  right  of  way  over  the  land,  which  mibuisted  at  the  time  of 


COVENANT    AGAINST    INCUMBRANCES.  351 

If  the  easement  affects  the  market  value  of  the  property,  the 
covenantee  is  entitled  to  recover  the  difference  between  the  value 
of  the  premises  with  and  without  the  easement,  though  he  has 
expended  no  money  on  account  of  the  easement.12 

Where  the  incumbrance  consists  of  a  restriction  of  the  uses  to 
which  the  premises  may  be  put,  and  the  grantee  is  made  defend- 
ant to  a  suit  to  enforce  the  restriction,  he  will  be  entitled  to  recover 
on  the  covenant  against  incumbrances  the  expenses  of  his  defense, 
including  fair  and  reasonable  attorney's  fees.  He  will  be 
entitled  to  recover  what  his  attorney's  services  were  reasonably 
worth,  but  nothing  in  excess  of  the  value  of  such  services.13 

In  a  case  in  which  the  breach  consisted  of  the  existence  of  a 
restrictive  covenant  against  the  use  of  fire  arms  on  the  land,  it 
was  held  that  the  covenantee  was  entitled  to  nominal  damages 
only,  in  the  absence  of  anything  to  show  actual  damages  from  the 
breach.14 

Damages  to  other  lands  of  the  covenantor  not  embraced  in  the 
deed  containing  the  covenant,  cannot  be  considered.15 

Notice  to  covenantor  to  defend.  A  judgment  enforcing  the 
incumbrance  as  against  the  covenantee  is  conclusive  upon  the 

the  conveyance  and  for  some  time  after.  The  defendant  contended  that  the 
evidence  showed  that  the  plaintiff  had  never  been  disturbed  in  the  enjoyment 
of  his  estate  by  any  user  of  the  way,  and  that  the  right  of  way  had  been 
extinguished  without  expense,  and  asked  that  the  jury  be  instructed  to  return 
a  verdict  for  nominal  damages  only,  but  the  judge  declined  to  give  these 
instructions.  It  does  not  follow  from  these  facts  than  no  actual  damage  had 
been  sustained.  While  the  right  of  way  lasted  the  plaintiff  was  precluded 
from  using  the  part  of  the  land  covered  by  the  way  as  fully  as  he  might 
otherwise  have  done.  He  could  not  set  a  tree  or  a  post  or  a  building  upon  it. 
or  sell  or  lease  it  to  any  person  to  whom  such  an  incumbrance  would  be 
objectionable.  It  was  an  apparently  permanent  subtraction  from  the  sub- 
stance of  the  estate."  But  see  Herrick  v.  Moore,  19  Me.  313,  where  it  was 
held  that  if  a  country  road,  being  an  incumbrance  on  the  land,  was  discon- 
tinued without  expense  to  the  plaintiff  before  he  brought  his  action,  he  could 
recover  only  nominal  damages. 

"Herb  v.  Met.  Hosp.  &  Disp.,  80  N.  Y.  Supp.  552;  80  App.  Div.  145. 

"Charman  v.  Tatum,  66  N.  Y.  Supp.  275;  54  App.  Div.  61.  If  the  incum- 
brance enhances  the  market  value  of  the  property  but  decreases  its  rental 
value  for  a  particlar  use,  the  covenantee  can  recover  only  nominal  dam- 
ages. Tuskegee  Land  Co.  v.  Realty  Co.,  (Ala.)  59  So.  557. 

14Fraser  v.  Bentel,  161  Cal.  390;  119  Pac.  509;  Ann.  Cas.  1913  B,  1062. 

"Smith  v.  White,  77  W.  Va.  377;  87  S.  E.  865. 


MAKKKTAHLK    TIT1.K    TO    KKAL    KSTATE. 

covenantor  in  a  case  in  which  he  neglects  a  notice  and  request 
hy  the  covenantee  to  appear  and  defend  the  suit.16 

§  1^2a.  Statute  of  Limitations.  In  some  of  the  States  it  is 
held  that  inasmuch  as  the  covenant  against  incumbrances  is 
broken  as  soon  as  made  if  there  is  an  iucumbrance  upon  the  proj>- 
erty,  the  statute  of  limitations  begins  to  run  against  an  action 
ujxm  the  covenant  from  the  time  the  deed  was  made.17  I>ut  in 
those  States  in  which  it  is  held  that  a  covenant  against  incum- 
brances runs  with  the  land,  the  statute  of  limitations  does  not 
begin  to  run  until  the  covenantee  has  sustained  actual  damages 
from  the  breach.18 

§  133.  PLEADING  AND  PROOF.  In  assigning  a  breach  of  the 
covenant  against  incumbrances,  it  is  not  sufficient  merely  to  nega- 
tive the  words  of  the  covenant,  alleging  that  the  premises  were  not 
free  from  incumbrances,  or  that  the  defendant  did  not  indemnify 
the  plaintiff,  and  save  him  harmless  from  incumbrances;  the 
plaintiff  must  go  further  and  set  forth  the  incumbrance  which 
produces  the  breach ; 19  that  is,  he  must  describe  the  incumbrance, 
giving  name,  date,  amount  and  other  particulars  of  description, 
but,  of  course,  without  reciting  the  instrument  in  so  many  words.20 
It  is  necessary  that  the  incumbrance  be  substantially  described,  in 
order  that  the  court  may  determine  whether  it  l)e  in  fact  an  incum- 

'•Post,  $  175.  Ballon  v.  Clark,  (Iowa)  171  X.  W.  682,  where  it  was  held, 
however,  that  the  covenantor  was  not  concluded  as  to  the  amount  of  dam* 
ages  awarded  against  the  covenantee. 

"Guerin  v.  Smith,  62  Mich.  369;  38  N.  W.  906. 

"Ante.  I  114;  Killilea  v.  Douglas,  133  Wis.  140;  113  X.  W.  411;  126 
Am.  St.  Rep.  938;  17  L.  R.  A.  (X.  S.)  1189;  Hunt  v.  Marsh,  80  Mo.  390; 
Thompson  v.  Conran  (Mo.  App.)  181  S.  W.  505;  Maitlen  v.  Maitlen.  44  Ind. 
App.  559;  89  N.  E.  966;  Whitten  v.  Krick,  31  Ind.  App.  577;  68  X.  E.  694. 

"Marston  v.  Hobbs,  2  Mass.  433;  3  Am.  Dec.  61;  Bickford  v.  Page,  2 
Mass.  455.  French  T.  Slack,  89  Vt.  514;  96  Atl.  6.  Mills  v.  Catlin,  22  Vt. 
98.  Shelton  v.  Pea**,  10  Mo.  473.  If  tho  facts  get  out  in  the  complaint 
constitute  a  breach  of  the  covenant  against  incumb ranees  as  well  an  a  breach 
of  the  covenant  of  warranty,  the  plaintiff  is  not,  under  the  Code,  practice, 
bound  to  elect  upon  which  breach  he  will  proceed.  Bruna  v.  Schreiber, 
(Minn.)  61  N.  W.  Rep.  120. 

"Duval  v.  Craig,  2  Wh.  (U.  8.)  45.  Morgan  v.  Smith,  11  111.  200.  It 
would  be  unsafe  to  «et  forth  the  incun&rance  in  turo  verba,  because  if  not 
accurately  described,  there  would  be  a  variance.  In  an  action  on  a  cove- 
nant against  incumbrance*  win  re  the  breach  alleged  is  an  outstanding  tax,  a 
variance  Itetwi-cn  the  description  of  the  premises  contained  in  the  deed  and 


COVENANT    AGAIXST    INCUMBRANCES.  353 

brance.21  It  is  not  necessary  to  allege  an  eviction  under  the  incum- 
brance.22  If  the  declaration  be  upon  a  special  or  limited  covenant, 
it  will  be  fatally  defective  if  it  does  not  allege  that  the  incum- 
brance  complained  of  originated  from,  by,  or  under  the  grantor.23 
If  the  plaintiff  has  extinguished  the  incumbrance,  he  must  aver 
that  fact  in  the  declaration ; 24  and  the  declaration  will  be  bad  on 
demurrer  if  he  fails  to  allege  that  he  has  not  been  reimbursed  by 
the  grantor.25  Under  a  statute  permitting  the  plaintiff  to  amend 
his  declaration  if  he  does  not  change  the  form  or  ground  of  his 
action,  he  may  add  a.  new  count  setting  forth  a  new  and  distinct 
incumbrance.26 

The  burden  of  proof  will  be  on  the  plaintiff  to  establish  the 
existence  of  the  incumbrance,27  and  to  show  that  it  was  a  valid 
and  subsisting  lien  at  the  time  of  the  conveyance.28 

The  plaintiff  must  produce  in  evidence  the  deed  containing  the 
covenant  against  incumbrances.  If  the  deed  be  in  existence,  he 
cannot  show  by  parol  testimony  that  it  contains  such  a  covenant.29 

The  remedy  for  a  breach  of  a  covenant  against  incumbrances  is 
by  action  at  law  on  the  covenant,  and  not  a  suit  in  equity  to  com- 
pel the  covenantor  to  satisfy  and  discharge  the  incumbrance.30 

that  contained  in  the  assessment  roll  is  immaterial,  provided  the  same  land 
is  adequately  and  particularly  described  in  each,  though  by  different  words. 
Mitchell  v.  Pillsbury,  5  Wis.  410. 

21Vorhis  v.  Forsyth,  4  Biss.    (C.  C.)   409. 

22  De  Jarnette  v.  Dreyfus,  166  Ala.  138;  51  S.  932. 

23  Mayo  v.  Babcock,  40  Me.  142.     The  incumbrance  complained  of  here  was 
taxes  on  the  premises.    The  declaration  did  not  allege  that  they  were  assessed 
while  defendant  was  the  owner  of  the  property. 

"Ante,  §  131.  Pillsbury  v.  Mitchell,  5  Wis.  22.  De  Forest  v.  Leets,  16 
Johns.  (N.  Y.)  122.  The  reason  of  this  rule  is,  that  inasmuch  as  no  actual 
damage  necessarily  results  from  a  breach  of  the  covenant  against  incum- 
brances, it  must,  if  sustained,  be  specially  laid  to  prevent  surprise. 

25  Kent  v.  Cantrell,  44   Ind.   452. 

28  Spencer  v.  Howe,  26  Conn.  200. 

27Jerald  v.  Elly,  51  Iowa,  321;   1  X.  W.  Rep.  639. 

28  Abb.  Tr.  Ev.  520.    Kirkpatrick  v.  Pearce,  107  Ind.  520;  8  N.  E.  Rep.  573, 
citing  Cook  v.  Fuson,  66  Ind.  521,  and  other  Indiana  cases;  Rife  v.  Glass  Co., 
42  Ind.  App.  346;   85  N".  E.  726. 

29  Patter  son  v.  Yancey,  81   Mo.  379.     The  rule  requiring  the  best  evidence 
makes  the  production  of  the  deed  necessary. 

30  Hastings  v.  Hastings,  58  N.  Y.  Supp.  671;  41  App.  Div.  540. 

45 


CHAPTER  XIV. 

COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT. 

FORM.     §    134. 

CONSTRUCTION  AND  EFFECT.     §    135. 
QUALIFICATIONS  AND  RESTRICTIONS.     §    130. 
WHEN  IMPLIED.     §    137. 

PARTIES  BOUND  AND  BENEFITED.     §    138. 
Married  women.     §    138-a. 

Heirs  and  devisees.     Joint  covenantors.      §  139. 
Personal  representatives.     §    140. 
Municipal  corporations.     §    140-a. 
Who  may  sue  for  breach  of  warranty.     §    141. 
WHAT  CONSTITUTES  BREACH. 
Tortious  disturbances.     §    142. 

Eminent  domain  and  acts  of  sovereignty.     §    14.'J. 
Actual  eviction. 

Ueneral  rule.     §  144. 

/,'ti/n/  by  adverse  claimant.     Legal  process.     §   145. 
Constructive  eviction. 

Inability  to  grt  possession.    §  146. 

Vacant  and  unoccupied  lands.     §   147. 
Surrender  of  possession.     §   148. 

Hostile  assertion   of  adverse  claim.      §    149. 
Purchase  of  outstanding   title.     §    150. 

Hostile  assertion   of  adverse  claim.      §    151. 
Loss  of  incorporeal  rights.     §    152. 

COVENANT  OF  WARRANTY  RUNS  WITH  THE  LAND. 
General  rule.     §    153. 

Assignee  may  sue  in  his  own  name.     §   154. 
Separate  actions  against  original  covenantor.     £    155. 
Release  of  covenant  by  immediate  covenantee.     §    150. 
Quit  claim  passes  benefit  of  covenant,     jj    157. 
Immediate   covenantee   must   have  been   damnified.     §    158. 
Remote  assignee  may  sue  original  covenantor.     S    159. 
Mortgagee  entitled  to  benefit  of  covenant.     $    100. 
Original  covenantor  must  have  been  actually  seised.     §    101. 
Assignee  not  affected  by  equities  between  original  parties.     8    102. 
Covenant  extinguished  by  reconveyance  to  covenantor.     §    103. 
MEASURE  OF  DAMAOES. 
General  rule,     i    164. 
New  England  rule.      $   105. 
Amount  to  which  assignee  is  entitled.     $   106. 

[354] 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       355 

Consideration  may  be  shown.     §    167. 

Where  covenantee  buys  in  paramount  title.     §   168. 

Loss  of  term  for  years.      §    169. 

Eviction  from  part  of  the  estate.     §    170. 

Improvements.     §    171. 

Interest  on  damages.     §   172. 

Costs.     §   173. 

Counsel  fees  and  expenses.     §    174. 

NOTICE  OF  HOSTILE  SUIT  AND  BEQUEST  TO  DEFEND.     §    175. 
PLEADING  AND  BURDEN  OF  PROOF.     §    176. 
CONVENANT  FOR  QUIET  ENJOYMENT.     §   177. 

§  134.  GENERAL  OBSERVATIONS.     FORM  OF  THE  COVENANT. 

The  modern  covenant  of  warranty  is  derived  from  the  ancient 
common-law  warranty,  though  it  is  neither  in  terms  nor  in  effect 
the  same.  The  latter  was  an  agreement  on  the  part  of  the  feoffor 
or  grantor  to  iiwest  the  feoffee  or  grantee  with  other  lands  of 
equal  value  in  case  he  should  be  evicted-  from  the  demised  prem- 
ises.1 It  could  be  created  only  by  deed2  and  by  the  use  of  the 
technical  word  warrant,  the  formula  being,  "  I  and  my  heirs  will 
warrant."  3  It  was  a  covenant  real,  that  is,  a  covenant  for  the 
breach  of  which  a  personal  action  sounding  in  damages  could  not 
be  maintained.  The  remedy  was  by  "voucher  to  warranty,"  in 
which  the  feoffor  was  called  upon  to  make  good  his  covenant  by 
rendering  to  the  feoffee  other  lands  equal  in  value  to  those  lost ; 
or  by  writ  of  warrantia  cliartce*  in  which  the  same  relief  was 
afforded  and,  it  seems,  a  recompense  in  money  in  case  the  feoffor 
were  unable  to  make  restitution  in  kind.5  With  the  disuse  of 
real  actions  warranty  fell  into  disuse  in  England,  and  has  been 
there  entirely  superseded  by  personal  covenants  for  title,  for  the 
breach  of  which  a  personal  action  of  covenant  sounding  in  dam- 
ages may  be  maintained.6  And  with  the  disuse  of  warranty  these 
ancient  remedies  have  also  disappeared  in  that  country. 

'Co.  Litt.  365a,     Stout  v.  Jackson,  2  Rand.    (Va.)    142. 

2  Co.  Litt.  386a. 

3  Ego  et  hcrredes  mei  ^carrant^zabimus  in  perpetuum.     Bac.  Abr.  Warranty 
M.  Tabb  v.  Binford,  4  Leigh  (Va.),  140  (150)  ;  26  Am.  Dec,  317. 

4  Stout  v.  Jackson,  2  Rand.    (Va.)    132. 

5Paxson  v.  Lefferts,  3  Rawle  (Pa.),  68,  n.,  citing  Fitzh.  Nat.  Brev.  135  H.; 
Id.  315. 

8  The  covenant  of  warranty  is  not  found  among  those  enumerated  by  Sir 
Edward  Sugden.  See  Sugd.  Vend.  (8th  Am.  ed.)  ch.  14,  §  3. 


356  MARKETABLE    TITLE    TO    REAL    ESTATE. 

The  modern  covenant  of  warranty  is  peculiar  to  the  American 
States,  being  unemployed  in  England,7  where  its  place  is  taken  by 
the  covenant  for  quiet  enjoyment.  Xo  case,  it  is  believed,  can  be 
found  in  the  American  reports  in  which  the  covenant  of  warranty 
has  been  treated  as  a  covenant  real  and  judgment  entered  directing 
the  covenantor  to  yield  other  lands  to  the  covenantee  equal  in 
value  to  those  whereof  he  had  been  evicted ;  nor  any  case  in  which 
a  voucher  to  warranty  or  writ  of  warrantia  cAor/rt^has  been  main- 
tained against  the  covenantor.  These  remedies  have  been  deemed 
nnsnited  to  the  character  of  our  institutions  by  many  decisions  in 
the  older  States,  which  declare  that  the  remedy  of  the  covenantee 
in  case  of  eviction  is  by  personal  action  for  breach  of  the  covenant 
of  warranty." 

7  3  Washb.  Real  Prop.  466  (660);  Rawle  Covts.   (5th  ed.)   oh.  8. 

•Townsend  v.  Morris.  6  Cow.  (X.  Y.)  123,  a  leading  case.  Chapman  v. 
Holmes,  5  Halst.  (X.  J.  L,)  24.  Stout  v.  Jackson.  2  Rand.  (Va.)  W2.  See 
the  erudite  opinions  of  GKEEX  and  OOALTER,  JJ..  in  this  case,  in  which  the 
nature  of  the  real  actions  of  voucher  and  trarrantia  chart<r,  and* the  practice 
therein,  are  set  forth.  Ricketts  v.  Dickens,  1  Murph.  L,  ( X.  C. )  343  -,  4  Am. 
Dec.  555;  Jacocks  T.  Gillian,  3  Murph.  L,  (X.  C.)  47.  Booker  v.  Bell,  3 
Bibb  (Ky.  i.  173;  6  Am.  Dec.  641.  Jourdain  v.  Jourdain,  9  Serg.  &  R.  (Pa.) 
276;  11  Am.  Dec.  24.  Stewart  v.  West,  14  Pa.  St.  336.  The  American  doc- 
trine and  practice  upon  this  point  is  fairly  represented  by  the  following  ex- 
tract from  the  cam  of  Booker  v.  Bell,  3  Bibb  (Ky.).  173;  6  Am.  Dec.  641: 
•*  Where  the  conveyance  was  by  feoffment  with  warranty,  the  ancient  and 
usual  remedy  in  case  the  feoffee  was  evicted  was  by  voucher  of  trarrantia 
ekarttr.  Whether  in  such  a  case  an  action  of  covenant  would  not  also  lie 
is  not  very  clearly  settled  in  the  English  books,  so  far  as  we  have  had  an 
opportunity  of  examining  them.  It  is,  however,  said  to-be  the  better  opinion 
that  it  would  not.  But  be* that  as  it  may,  it  does  not  necessarily  follow  that 
the  same  doctrine  will  hold  good  -with-  regard  to  a  warranty  contained  in  a 
deed  of  bargain  and  sale,  or  other  deed  operating  under  the  statute  of  mes. 
It  is  evident  that  prior  to  that  statute,  if  any  action  would  lie  for  a  breach 
of  the  covenant  of  warranty  contained  in  such  a  deed,  it  must  have«been  an 
action  of  covenant.  It  could  then  have  been  but  a  personal  covenant,  and 
ought,  we  apprehend,  -to  be  still  so  considered.  But  there  are  other  consider- 
ations which  we  think  are  entitled  to  greater  weight  upon  this  point.  The 
covenant  of  warranty  has  ever  since,  and  long  before  the  establishment  of  thin 
commonwealth,  been  uniformly  treated  as  a  personal  covenant,  upon  which 
the  action  of  covenant  would  lie.  The  invariable  practice  for  so  many  years 
in  a  case  where  the  balance  hangs  so  nearly  in  rguilibris,  ought  to  turn  the 
scale  in  favor  of  the  action;  more  especially  as  the  remedy  by  voucher  is 
taken  away  by  statute,  and  the  writ  of  trarrantia  charter  has  become 
ctnkte." 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       357 

The  modern  covenant  of  warranty  can,  like  the  ancient  war- 
ranty, be  created  only  by  deed.8  A  covenant  in  an  instrument,  in 
form  a  deed,  but  in  fact  a  will,  cannot  be  treated  as  a  covenant  of 
warranty,  and,  therefore,  is  not  broken  by  a  subsequent  convey- 
ance on  the  part  of  the  maker  of  the  instrument.10  It  is  not  neces- 
sary, however,  that  the  covenant  should  appear  in  any  particular 
part  of  the  deed.11  The  four  corners  of  the  instrument  are  to  be 
looked  to  in  order  to  ascertain  the  intention  of  the  parties.  And 
it  has  been  held  that  a  covenant  of  warranty  indorsed  upon  a  deed 
is  valid.12  If  a  person,  under  a  fictitious  or  assumed  name,  exe- 
cute a  conveyance,  he  will,  under  his  real  name,  be  bound  by  the 
covenants  for  title  therein  contained.13 

The  covenant  of  warranty  as  employed  in  America  is  either  gen- 
eral, that  is,  against  the  claims  of  all  persons  whatsoever,  or 
special,  that  is,  against  any  claim  by,  through  or  under  the 
grantor,  or  against  the  claims  of  a  designated  person  or  persons.14 
The  covenant  of  general  warranty  is  usually  thus  expressed :  "  The 
said  (grantor)  covenants  that  he,  his  heirs  and  personal  repre- 
sentatives, will  forever  warrant  and  defend  the  said  property  unto 

» Scott  v.  Scott,  70  Pa.  St.  244. 

10  Scott  v.  Scott,  70  Pa.  St.  244. 

"Midgett  v.  Brooks,  12  Ired.  L.  (X.  C.)   145,  148;  55  Am.  Dec.  405. 

"Platt  Covts.  136.    Coster  v.  Monroe  Mfg.  Co.,  1  Gr.  Ch.  (N.  J.)  478. 

"Preiss  v.  Le  Poidevin,  19  Abb.  N.  Cas.  (X.  Y.)   123. 

14  See  §  67  note,  for  form  of  general  and  special  covenants  of  warranty.  A 
covenant  to  defend  the  title  against  any  person  claiming  under  the  original 
grantee  or  patentee  of  the  land  is  equivalent  to  a  covenant  of  general  war- 
ranty. Little  v.  Allen,  56  Tex.  133.  The  word  "  warrant n  is  not  indispens- 
able in  a  covenant  of  warranty.  A  covenant  to  "  defend  "  the  title  against 
the  claims  of  all  persons,  etc.,  is  sufficient.  Kirkendall  v.  Mitchell,  3  McL. 
(U.  S.)  144.  An  interesting  case  arose  in  Wisconsin  in  which  the  question 
was  whether  the  covenant  was  to  be  treated  as  general  or  special.  A  printed 
form  for  a  special  warranty  deed  was  used,  containing  the  usual  clause  that 
the  grantor  the  peaceable  possession  of  the  premises  "  against  every  person 

claiming  any  part  thereof  -by,  through,  or  under  ,  and  no  other  , 

will  forever  warrant  and  defend."  The  deed  was  executed  without  filling 
these  blanks.  It  was  held  that  the  court  had  no  power  either  to  fill  the 
blanks,  so  as  to  make  a  special  warranty,  nor  to  disregard  them  and  treat 
the  language  as  a  general  warranty;  and  hence,  that  the  clause  was  mean- 
ingless, and  that  the  grantee,  who  had  been  evicted  by  the  holder  of  a  better 
title,  was  without  relief.  Miss.  River  Logging  Co.  v.  Wheelihan,  94  Wis.  96; 
68  X.  W.  Rep.  878. 


358  MAKKETAULK    TITLE    TO    HEAL    ESTATE. 

the  grantee,  his  heirs,  personal  representatives  and  assigns,  against 
the  claims  and  demands  of  all  persons  whomsoever."  The  cove- 
nant of  special  warranty  is  expressed  in  the  same  way,  except  the 
last  clause,  which  is  written  "  against  the  claims  and  demands  of 
the  (grantor),  and  all  persons  claiming  or  to  claim  by,  through 
or  under  him."  15  In  some  of  the  States,  these  forms  may,  by 
statute,  be  greatly  abbreviated,  a  covenant  that  the  grantor  "  will 
warrant  generally  the  property  hereby  conveyed,"  or  a  mere  con- 
veyance "  with  general  warranty,"  being  given  the  force  and  effect 
of  a  full  covenant  of  warranty.  In  the  same  way,  the  grantor 
may  "  warrant  specially  "  the  property  conveyed,  or  convey  "  with 
special  warranty,"  and  these  forms  will  be  given  the  same  effect 
as  a  covenant  of  special  warranty  expressed  at  full  length.16  We 
have  seen  that  at  common  law  a  warranty  could  not  be  created 
except  by  the  use  of  the  word  wwrani.  But  no  such  strictness 
prevails  at  the  present  day.  While  the  foregoing  forms  are  those 
usually  employed,  the  law  has  not  appropriated  any  particular 
form  of  words  to  the  creation  of  a  covenant ;  any  words  sufficient 
to  show  the  intention  of  the  parties  will  suffice  as  a  covenant17 
In  some  of  the  American  States,  there  is  employed'  what  is  called 

M  If  the  warranty  be  special  there  is,  of  course,  no  breach  if  the  coyenantee 
be  evicted  under  a  title  adverse  to  that  of  the  covenantor.  Sour  Lake  (*>.  v. 
Jackson,  (Tex.  Civ.  App.)  130  S.  W.  6G2. 

"See  Va.  Code,  1887,  S  2446. 

17  Platt  Covts.  28;  Rawle  Covts.  (5th  ed.)  8.22,  notes,  Johnson  v.  Hollens- 
worth,  48  Mich.  140.  Cole  v.  Lee.  30  Me.  392;  citing  4  Cruise,  447,  449. 
Lant  v.  Norris,  1  Burr,  290.  Buller's  X.  P.  158,  and  Cro.  James,  391.  Trutt 
v.  Spott,  87  Pa.  St.  339.  In  Midgett  v.  Brooks,  Ired.  L.  (N.  C.)  145;  55 
Am.  Dec.  405,  the  following  language  in  the  habendum  of  a  deed,  "free  and 
clear  from  me,  my  heirs,  etc.,  and  from  all  other  persons  whatsoever,"  was 
held  sufficient  as. a  covenant  for  quiet  enjoyment.  The  objection  that  a  cove- 
nant of  warranty  is  inoperative  because  the  word  "he"  is  omitted  from  the 
blank  space  in  which  it  should  have  been  written  preceding  the  words  "  will 
forever  defend,"  etc.,  is.  frivolous  and  untenable.  Peck  v.  Houghtaling,  38 
Mich.  127.  But  we  Bowne  v.  Wolcott,  (N.  Dak.)  48  N.  W.  Rep.  426.  and 
Thayer  v.  Palmer,  86  111.  477.  An  agreement  to  make  a  general  warranty 
deed  is  performed  by  a  deed  containing  a  recital  that  the  grantor  "  will  for- 
ever warrant  and  defend  the  title,"  etc.  4  Kent  Com.  492;  Athens  v.  Nale, 
25  111.  198;  Caldwoll  v.  Kirkpatrick,  6  Ala.  60;  41  Am.  Dec.  36.  Tin-  fol- 
lowing language  in  a  deed,  "to  have  and  to  hold  the  said  land  unto  tin-  said 
grantee,  his  heirs  and  assigns  forever  as  a  good  and  indefeasible  estate  in  fee 
nimple,"  does  not  amount  to  a  covenant  of  warranty.  Wheeler  v.  Wayne  Co., 
(111.)  24  N.  E.  Rep.  625. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       359 

the  covenant  of  non-claim.  It  is  in  substance  a  covenant  by  the 
grantor  that  neither  he  nor  any  one  claiming  under  him  will  there; 
after  lay  any  claim  to  the  granted  premises.  It  has  been  fre- 
quently held  to  be  the  same  in  effect  as  a  covenant  of  special 
warranty.18 

§  135.  CONSTRUCTION  AND  EFFECT.  In  a  number  of  the 
States  the  covenant  of  warranty  includes  by  virtue  of  statutory 
provision  or  judicial  construction  all  the  other  covenants  for  title.19 

"Gee  v.  Moore,  14  Cal.  472;  Kimball  v.  Semple,  25  Cal.  452;  Morrison  v. 
Wilson,  30  Cal.  348.  Cole  v.  Lee,  30  Me.  392.  Newcomib  v.  Presbrey,  8  Met. 

(Mass)  406;  Miller  v.  Ejiving,  6  Cush.   (Mass.)  34;  Gibbs  v.  Thayer,  6  Gush. 

(Mass.)  33. 

19  So  in  Iowa,  Funk  v.  Creswell,  5  Iowa,  62 ;  Van  Wagner  v.  Van  Nostrand, 
19  Iowa,  422,  and  in  South  Carolina,  Evans  v.  McLucas,  12  S.  C.  56.  Butte 
v.  Riffe,  78  Ky.  353;  Smith  v.  Jones,  (Ky.)  31  -S.  W.  Rep.  475.  Measer  v. 
Oestrich,  52  Wis.  693,  10*  X.  W.  Rep.  6.  In  Ohio  a  covenant  of  warranty  is 
by  statute  made  to  include  a  covenant  of  seisin.  But,  if  the  deed  contain  a 
covenant  of  warranty  and  a  covenant  of  seisin  the  covenantee  cannot  recover 
for  a  breach  of  the  warranty  without  averring  an  eviction.  Innes  v.  Agnew, 
1  Ohio,  389.  Mr.  Rawle  closes  his  discussion  of  what  constitutes  a  breach  of 
the  covenant  of  warranty  with  the  following  observations,  which  will  be 
found  pertinent  to  the  subject-matter  of  the  text  above:  "In  reviewing  the 
numerous  cases  upon  the  subject  of  what  constitutes  an  eviction  within  the 
covenant  of  warranty  it  seems  proper  to  recur  to  the  remark,  which  has  else- 
where been  made  in  the  course  of  this  treatise,  that  covenants  for  title  should 
not  and  cannot  be  regulated  in  all  cases  by  the  artificial  and  technical  rules 
which  properly  govern  the  law  of  real  estate.  Reference  may  be  had,  there- 
fore, not  only  to  the  intention  of  the  parties  as  expressed  in  the  conveyance 
which  contains  the  covenants,  but  also  to  the  local  practice  of  conveyancing 
itself.  In  those  parts  of  this  country,  if  any  such  exist,  where  the  refinements 
of  English  conveyancing  prevail  and  the  covenants  for  title  are  inserted  with 
exactness  and  fulness,  the  omission  of  a  covenant  for  seisin  or  against  incum- 
brances  would  justify  the  inference  that  the  terms  of  the  contract  did  not 
give  the  purchaser  the  peculiar  benefit  which  such  covenant  strictly  confers; 
and  the  more  exactly  and  particularly  the  covenants  were  expressed  the.  more 
rigid  would  be  their  construction.  So  far,  however,  from  such  being  the 
practice  of  conveyancing  in  this  country  it  is  rarely,  if  ever,  the  case  that 
covenants  for  title,  which  are  inserted,  are  expressed  otherwise  than  very 
briefly.  So  in  some  of  the  States  long-settled  usage  has  caused  the  omission 
of  all  the  covenants  for  title  except  that  of  warranty,  which,  by  common  prac- 
tice at  least,  is  looked  upon  as  containing  all  that  is  necessary  to  assure  the 
title  to  the  purchaser.  Where  such  has  become  the  settled  practice  of  a  State 
it  is  suggested  with  great  deference  that  technical  rules  based  upon  a  differ- 
ent custom  of  conveyancing  lose,  to  some  extent,  their  application,  and  to  say 
that  '  the  purchaser  should  have  protected  himself  by  other  covenants  '  is  to 
apply  a  hard  rule  in  States  where  those  other  covenants  are  never  employed." 
Covenants  for  Title  (5th  ed.),  §  154. 


360 


MARKETABLE    TITLE    TO    HEAL    ESTATE. 


But  in  most  of  the  States  it  is  regarded  only  as  a  covenant  against 
eviction  by  one  claiming  under  a  better  title.  It  is  not  to  be 
denied,  however,  that  the  popular  notion  of  a  covenant  of  war- 
ranty is  that  it  is  an  ample  protection  against  any  imperfection 
in  the  grantor's  title.  But  this  covenant  is  not  a  warranty  that  the 
title  is  good.  "  It  has  been  thought  by  country  scriveners,  and 
even  by  members  of  the  profession,  to  contain  the  elements  of  all 
the  rest  ;  but  the  terms  of  it  are  too  specific  to  secure  the  grantee 
against  every  disturbance  by  those  who  may  have  a  better  title. 
It  binds  the  grantor  to  defend  the  possession  against  every  claim- 
ant of  it  by  right,  and  it  is  consequently  a  covenant  against  eviction 
only."  *°  The  purchaser  should  require,  as  a  matter  of  abundant 
caution,  all  of  the  six  covenants  for  title,  for  there  may  be  occa- 
sions when  he  would  be  entitled  to  relief  under  some  one  of  these 
when  he  would  not  be  entitled  to  relief  under  the  covenant  of 
warranty.11 

Indej)endently  of  custom  or  statutory  provision,  the  covenant  of 
warranty  includes  a  covenant  against  incumbrances,  in  the  sense 
that  an  eviction  under  an  incumbrance  is  as  much  a  breach  of  the 
covenant  of  warranty  as  if  the  covenantee  had  been  evicted  by  one 
claiming  under  a  superior  title.  In  such  a  case  the  purchaser  is 
as  fully  protected  by  the  covenant  of  warranty  as  he  would  be  by  a 
covenant  against  incumbrances.22  But  it  seems  that  an  agreement 
to  execute  a  conveyance  with  a  covenant  against  incumbranccs 
would  not  be  performed  by  executing  a  deed  with  general  war- 
ranty.23 A  judgment  for  nominal  damages  for  a  breach  of  the  cove- 
nant against  incumbrances  is  no  bar  to  a  suit  for  breach  of  war- 
ranty after  an  eviction  under  the  incumbrance.24  The  general  rule, 
therefore,  is,  unless  varied  by  statute  or  custom  in  particular  local- 
ities, that  the  covenant  of  warranty  does  not  include  a  covenant 


,  C.  J.,  in  Dobbins  v.  Brown,  12  Pa.  St.  79.  Oliver  v.  Bush,  125 
Ala.  534  ;  27  So.  Rep.  023. 

"Aw  in  Wash.  City  Savings  Bank  v.  Thornton,  83  Va.  157;  2  S.  K.  Ilrp. 
103. 

"King  v.  Kcrr,  5  Ohio,  158;  22  Am.  Dec.  777.     PoHt,  ft  365. 

"Botftwirk  v.  William*,  36  III.  65;  85  Am.  Dec.  386.  Sec,  also,  Findlay  v. 
Toncray,  2  Rob.  (Va.)  374,  379. 

"Donnell  v.  Thomp«on,  1  Kairf.  (Me.)  170;  26  Am.  Dec.  216;  Smith  v. 
Wahl,  88  N.  J.  L.  623,  97  Atl.  261. 


COVENANTS  OF  WAKBANTY  AND  FOB  QUIET  ENJOYMENT.       301 

against  incumbrances.2"  The  ancient  common-law  warranty 
extended  only  to  a  freehold  estate,  that  is,  an  estate  of  an  indeter- 
minate duration.  The  same  rule  has  been  recognized  as  applicable 
to  the  modern  warranty.26  Practically,  however,  it  would  seem 
unimportant,  as  a  covenant  for  quiet  enjoyment  is  always  implied 
in  a  conveyance  for  years,  the  only  estate  less  than  freehold  that  is 
of  any  consequence.27 

The  effect  of  a  covenant  of  warranty  as  an  estoppel  is  elsewhere 
considered  in  this  work.28 

The  covenant  of  warranty  is  intended  as  much  for  the  protec- 
tion of  the  purchaser  against  known  defects  of  title  as  against 
those  which  are  latent  and  unknown.  It  is,  therefore,  no  defense 
to  an  action  on  the  covenant  that  the  purchaser  knew,  at  the  time 
it  was  taken,  that  there  was  an  adverse  claim  to  the  land,29  or  that 

25  See  ante,  §  119. 

"•Co.  Lift.  389a;  Shep.  Touch.  184;  Mitchell  v.  Warner,  5  Conn.  497. 

"Post,  "Implied  Covenants,"  §  137. 

28  Post,  §  216. 

29  Barlow  v.  Delaney,  40  Fed.  Rep.  97.    Ballard  v.  Burroughs,  51  Iowa,  81; 
50  N.  W.  Rep.  74.     Osburn  v.  Pritchard,   104  Ga.   195;   30  S.  E.  Rep.  656; 
Goodwin  v.  Maxwell,  106  Ga.  194;  32  S.  E.  Rep.  114;  McCall  v.  Wilkes,  121 
Ga.  722;  49  S.  E.  Rep.  722;  Allen  v.  Taylor,  121  Ga.  841;  49  S.  E.  Rep.  799; 
Bailey  v.   Murphy,    (Colo.   App.)    74   Pac.   Rep.   798;    Batter  ton  v.   Smith,  3 
Kans.  App.  419;  43  Pac.  Rep.  275;  Anthony  v.  Rockefeller,   (Mo.)    74  S.  W. 
Rep.  648.    Rea  v.  Minkler,  5  Lans,  (N.  Y. )   196,  where  the  covenant  was  taken 
with  knowledge  that  there  was  a  .private  right  of  way  over  the  premises. 
Abernathy  v.  Boazman,  24  Ala.  189.     In  this  case  the  grantor  was  himself 
already  in  possession  under  an  adverse  claimant.     In  Tallmadge  v.  Wallis,  25 
Wend.   (N.  Y.)    115,  the  reason  for  the  rule  was  thus  explained  by  Chancellor 
WAL WORTH:   "It  is  a  well-known  fact  that  land  is  frequently  conveyed  with 
general  warranty,  which  is  warranty  against  eviction  only,  when  both  parties 
to  the  sale  perfectly  understand  that  the  title  is  doubtful,  or  that  there  is 
some  outstanding  contingent  interest  which  may,  perhaps,  at  a  future  period, 
be  the  means  of  evicting  the  purchaser;   and  to  protect  the  purchaser,  and 
enable  him  to  recover  against  the  vendor  in  case  of  eviction,  the  covenant  of 
Warranty  is  inserted  in  the  deed." 

Recent  cases.  Callanan  v.  Keenan,  224  N.  Y.  303,  121  N.  E.  376;  New 
York,  etc.,  Coal  Co.  v.  Graham,  226  Pa.  348,  75  Atl.  657;  Smith  v.  Ward, 
66  W.  Va.  190,  66  S.  E.  234,  33  L.  R.  A.  (N.  S.)  1030;  Joiner  v.  Trust 
Co.,  33  Okl.  266,  124  Pac.  1073;  Sanders  v.  'Boynton,  (S.  C.)  98  S.  E. 
854 ;  Mayer  v.  Wooten,  46  Tex.  Civ.  App.  327,  102  S.  W.  423;  Coleman  v. 
Luetcke  (Tex.  Civ.  App.)  164  S.  W.  1117;  Scott  v.  Tanner  (Mo.  App.)  208 
S.  W.  264. 

46 


362  MAKKETA11LE    TITLE    TO    KEAL    ESTATE. 

an  easement  in  the  land  was  being  enjoyed  by  a  third  party.80  But 
a  covenant  of  warranty  will  not  embrace  incumbrances  known  to 
the  grantor  at  the  time  of  the  purchase,  and  which  he  agreed  to 
pay  off  as  a  part  of  the  purchase  money.  Parol  evidence  will,  in 
some  of  the  States,  be  admitted  to  show  such  an  agreement.81  A 
mere  sale  and  conveyance,  however,  with  general  warranty,  sub- 
ject to  a  prior  mortgage,  will  not  of  itself  be  construed  as  an 
agreement  by  the  grantee  to  pay  the  mortgage  as  a  part  of  the 
purchase  money.82 

Want  of  consideration  is  no  answer  to  an  action  for  breach  of  the 
covenant  of  warranty.88 

A  covenantee  who  has  been  evicted  from  the  demised  premises, 
and  who  has  recovered  damages  for  breach  of  the  warranty,  is 
not  bound  to  reconvey  the  title ;  if  justice  should  require  a  recon- 
veyance, it  should  be  enforced  by  making  the  collection  of  the 
judgment  conditional  upon  a  reconveyance.84 

It  will  be  seen  hereafter  that  the  covenant  of  warranty  does  not 
amount  to  a  covenant  that  the  title  is  indefeasible,  and  that  it  is 
broken  only  by  an  eviction  of  the  covenantee.  Hence,  it  follows 
that  the  statute  of  limitations  will  not  begin  to  run  upon  the 
covenant  until  an  eviction  has  occurred,  there  being  up  to  that 
time  no  cause  of  action  on  the  covenant.86 

"Mahoney  v.  Simms,  148  X.  Y.  Supp.  1060,  80  Misc.  Rep.  484. 

Tost,  §§  181,  269;  ante,  $  121.  Allen  v.  Lee,  1  Ind.  58;  48  Am.  Dee.  .'r.2; 
Pittman  v.  Conner,  27  Ind.  237.  In  Ross  v.  Davis,  122  N.  C.  265;  29  S.  E. 
Rep.  338,  it  was  held  that  one  who  took  a  deed  with  general  warranty  from  a 
widow  as  life-tenant  and  her  daughter  as  remainderman,  with  notice  of  the 
life-tenancy,  and  who  was  evicted  after  the  expiration  of  the  life-tenancy  of 
the  widow,  could  not  recover  on  the  warranty.  In  effect,  the  court  held  that 
her  warranty  extended  only  to  her  interest  in  the  estate.  In  Menasha  Wood- 
enware  Co.  v.  Nelson,  53  Wash.  160,  101  Pac.  720,  parol  evidence  was  ad- 
mitted to  show  that  the  covenantee  knew  the  condition  of  the  title,  and,  as 
part  of  the  consideration  of  the  deed,  undertook  himself  to  remedy  the  de- 
fects. 

"Aufricht  v.  Xorthrup,  20  Iowa,  61. 

"Math.-r  v.  Coi-Iis*.  In.-?  Mass.  568,  571;  Comstock  v.  Son,  154  Mass.  38fl; 
28  X.  E.  Rep.  296.  The  covenantor  is  estopped  to  net  up  the  defense  that 
there  was  no  consideration  for  the  warranty,  and  that  he  r\<>< -nit-d  the  deed 
merely  as  a  matter  nf  accommodation  to  others.  Cornelius  v.  Kinnard,  157 
Ky.  50,  102  S.  \v.  :,j». 

"Ives  v.  Nile*.  5  Watts   (Pa.)    323. 

"Crisfleld  v.  Storr,  36  Md.  129;  11  Am.  Rep.  480.     Post,  this  ch.,  |  144. 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET  ENJOYMENT. 

As  a  consequence  of  the  rule  that  all  prior  agreements  of  the 
parties  respecting  the  title  are  merged  in  a  conveyance  with  cove- 
nants for  title,  the  grantor,  when  sued  for  a  breach  of  the  covenant 
of  warranty,  will  not  be  permitted  to  show  an  agreement  by  the 
purchaser,  prior  to  the  conveyance,  by  which  he  was  to  share  the 
expense  of  buying  in  an  outstanding  claim  to  a  part  of  the  prem- 
ises, if  it  should  be  asserted.36 

It  is  no  defense  to  an  action  on  the  warranty  that  land  to 
which  the  grantor  had  no  title  was,  by  mistake,  included  in  the 
deed.37 

The  United  States,  claiming  under  a  defective  scrip  entry  of 
public  lands,  is  a  "  person,"  within  the  meaning  of  a  warranty 
against  all  persons  lawfully  claiming  the  land.38 

Warranty  does  not  extend  to  quantity.  A  covenant  of  war- 
ranty in  a  conveyance  of  lands  by  metes  and  bounds  or  within 
certain  designated  limits,  and  as  containing  a  certain  number  of 
acres,  is  not  broken  if  the  lands  described  do  not  contain  the 
number  of  acres  mentioned.39  The  covenant  of  warranty  does  not 

34  Post,  §  181;  ante,  §  121.  Beaseley  v.  Phillips,  10  Ind.  App.  182;  50  N.  E. 
Rep.  488. 

37  Thompson  v.  Hill,  137  Ga.  308,  73  S.  E.  640. 

MGiddings  v.  Holter,  19  Mont.  263;  48  Pac.  Rep.  8. 

39Rawle  Covts.  (5th  ed.)  §  297.  Ricketts  v.  Dickens,  1  Murph.  (N.  C.) 
343;  4  Am.  Dec.  555;  Powell  v.  Lyles,  1  Murph.  (N.  C.)  348,  HALL,  J.,  dis- 
senting; Huntley  v.  Waddill,  12  Ired.  L.  (N".  C.)  32.  Dickinson  v.  Voorhees, 
7  W.  &  S.  (Pa.)  357.  Here  there  was  a  deficiency  of  445  acres  out  of  a 
tract  of  3,235  acres  conveyed  with  warranty.  Allison  v.  Allison,  1  Yerg. 
(Tenn.)  16;  Miller  v.  Bentley,  5  Sneed  (Tenn.),  674.  Daughtrey  v.  Knolle, 
44  Tex.  455;  Doyle  v.  Hord,  67  Tex.  621;  4  S.  W.  Rep.  241.  Sine  v.  Fox,  33 
W.  Va.  521;  11  S.  E.  Rep.  218;  Burbridge  v.  Sadler,  46  W.  Va.  39;  32  S.  E. 
Rep.  1028;  Adams  v.  Baker,  50  W.  Va.  249;  40  S.  E.  Rep.  356;  Maxwell  v. 
Wilson,  54  W.  Va.  495;  46  S.  E.  Rep.  349;  Gerhart  v.  Spalding,  1  N.  Y. 
Supp.  486;  Gunn  v.  Moore,  61  N.  Y.  Supp.  519;  46  App.  Div.  358;  Fitz- 
patrick  v.  Crowther,  100  Kan.  3-55,  164  Pac.  300;  Mosteller  v.  Astin,  61  Tex. 
Civ.  App.  455,  129  S.  W.  1136;  Hannis  v.  Scholz  (Tex.  Civ.  App.)  120  S.  W. 
1056;  Holland  v.  Ashley,  (Tex.  Civ.  App.)  15S  S.  W.  1032;  Brown  v.  Yoakum 
(Tex.  Civ.  App.)  170  S.  W.  803;  Nicholson  v.  Slaughter  Co.,  (Tex.  Civ.  App.) 
217  S.  W.  716;  Gulf  Coal  Co.  v.  Musgrove,  195  Ala.  219;  70  So.  179.  A 
covenant  that  the  grantor  was  seized  of  the  land,  described  in  the  deed  as 
containing  fifty  acres,  refers  to  the  quantity  and  quality  of  the  grantor's 
estate  in  the  land,  and  not  to  the  quantity  of  the  land,  and  therefore,  is  not 
broken  if  the  tract  contain  less  than  fifty  acres.  Austin  v.  Richards,  7 
Heisk.  (Tenn.)  665.  A  covenant  of  warranty  is  not  qualified  by  a  phrase 


364  MAKKETABLE    TITLE    TO    HEAL    ESTATE. 

extend  to  quantity.  Such  a  case  is  obviously  different  from  one 
in  which  the  grantee  is  unable  to  get  possession  of,  or  is  evicted 
from,  a  portion  of  the  lands  within  the  given  bounds.40  A 
deficiency  in  the  acreage,  when  the  sale  was  by  the  acre,  is  the 
result  either  of  fraud  by  the  vendor  or  mistake  of  the  parties ;  in 
either  of  which  cases  the  purchaser  has  his  remedy  in  equity." 
A  breach  of  warranty  can  only  be  with  respect  to  the  precise 
lands  conveyed  by  the  deed,  and  parol  evidence  will  be  inad- 
missible to  show  that  certain  lands  of  which  the  plaintiff  has 
been  evicted  were  included  in  his  purchase  and  should  have  been 
embraced  in  the  deed.42  And  if  a  deed  convey  a  lot  with  warranty 

such  as  "being  the  same  land  conveyed  by  A.  to  me;"  such  phrase  is  in- 
tended merely  as  an  aid  to  identifying  the  land.  Shaw  v.  Bisbee,  83  Me.  400; 
22  Atl.  Rep.  361.  Where  a  conveyance  is  made  by  course  and  distance,  and 
a  covenant  therein  extends  to  the  entire  quantity  of  land,  a  further  descrip- 
tion of  the  land  in  the  deed  as  a  tract  which  had  passed  to  the  grantor  by  cer- 
tain deeds  will  not  restrain  the  warranty  to  the  original  bounds  of  the  tract. 
Stcincr  v.  Baughman,  12  Pa.  St.  106.  If  the  purchaser  gets  all  of  the  land 
covered  by  the  description  in  his  deed,  it  is  no  breach  of  the  covenant  of  war- 
ranty that  the  deed  does  not  embrace  all  the  land  within  the  boundaries 
pointed  out  by  the  grantor.  Littleton  v.  Green,  130  Ga.  692,  61  S.  E.  593. 
Compare  the  following  cases:  Davis  v.  Fair,  (Tex.  Civ.  App.)  152  S.  W.  218; 
Withers  v.  Crenshaw,  (Tex.  Civ.  App.)  155  S.  W.  1189;  Moore  v.  Johnson,  87 
Ala.  220;  Henofer  v.  Realty  Co.  (N".  C.)  101  S.  E.  265.  It  seem*  to  have  been 
assumed  in  Burton  v.  Cowles,  156  Ky.  435,  160  S.  W.  782,  that  an  action 
would  lie  to  recover  the  purchase  money  paid,  to  the  extent  of  the  denVicii.  v. 
as  money  paid  under  a  mistake  of  fact.  In  Jeffords  v.  Driesbaeh,  168  Mo. 
App.  f)77.  1  "»•'!  S.  W.  274,  it  was  held  that  where  property  is  conveyed  as  a 
numbered  lot  on  a  map  or  plat  of  an  addition  to  a  city,  there  is  a  breach  of 
the  covenant  unless  the  grantee  gets  the  full  amount  of  land  called  for  on 
the  map  or  plat. 

«•  Houston  v.  Cameron  Co.  (Tex.  Civ.  App.)   135  S.  W.  699. 

41  Broadway  v.  Buxton,  43  Conn.  282.  Smith  v.  Fly,  24  Tex.  345;  O'Con- 
iicll  v.  Duke,  29  Tex.  299.  Bennett  v.  Latham,  18  Tex.  Civ.  App.  403;  45 
S.  \V.  l!,-p.  ?i::i:  Stark  v.  Homuth,  (Tex.  Civ.  App.)  45  S.  W.  Rep.  761; 
Barm-s  v.  J,i«litfiM.t,  (Tex.  Civ.  App.)  62  S.  W.  Rep.  r>f>4. 

"Tymason  v.  Bates,  14  Wend.  (X.  Y.)  671.  K  seems  that  this  rule  d...--; 
not  apply  in  Texas.  Where  the  grantor  at  the  time  of  the  Half,  points  out 
the  boundaries  of  the  -tract  sold,  as  established  by  natural  or  artificial  monu- 
ments, the  warranty  in  hi*  deed  applies  to  the  very  land  so  pointed  out  by 
him,  though  the  cull*  in  his  deed  to  the  eovenantee  do  not  include  a  strip  on 
one  of  the  sides  of  the  land  as  pointed  out.  Meade  v.  Jones,  (Tex.  Civ.  App.) 
\V.  Hep.  .-510.  Meade  v.  Itu..iie.  ( Tex.  Civ.  App.)  3.'i  &  W.  483.  King 
v.  Bressie,  (Tex.  Civ.  App.)  32  S.  W.  Rep.  729.  And  in  Kentucky  it  has  been 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       365 

without  reference  to  or  description  of  the  buildings  thereon,  the 
fact  that  a  house  on  the  lot  projects  over,  and  is  situated  partly 
on  an  adjoining  lot,  so  that  the  grantee  is  obliged  to  buy  the 
adjoining  lot  to  save  the  house,  does  not  amount  to  a  breach  of 
the  covenant  of  warranty.43 

Nor,  if  the  deed  embraces  all  the  land  within  the  boundaries 
pointed  out  by  the  grantor  to  the  grantee,  is  there  a  breach  of 
the  warranty  if  the  description  in  the  deed  embraces  other  land 
in  the  possession  of  a  third  party  to  which  the  grantor  had  no 
title.44 

§  136.QUALIFICATIONS  AND  RESTRICTIONS  OF  THE  COVE- 
NANT OF  WARRANTY.  The  parties  may,  of  course,  so  frame  the 
covenant  of  warranty  as  to  limit  or  restrict  the  liability  of  the 
covenantor.  No  difficulty  arises  where  the  only  covenant  in  the 
conveyance  is  restricted  and  limited  in  express  terms.  But  some- 
times, and  this  may  well  happen  where  printed  forms  of  convey- 
ances are  used  and  the  blanks  are  filled  by  unskilled  persons,  a 
deed  will  be  found  to  contain  a  general  covenant,  followed  by  a 
special  covenant,  or  by  language  inconsistent  with  or  restrictive 
of  the  general  covenant.  Under  such  circumstances  the  follow- 
ing rules  have  been  formulated  by  Sir  Edward  Sugden  for  the 
construction  of  the  instrument:45  (1)  An  agreement  in  any  part 
of  a  deed  that  the  covenants  shall  be  restrained  to  the  acts  of 
particular  persons  will  be  good,  notwithstanding  that  the  cove- 
nants themselves  are  general  and  unlimited.  (2)  General  cove- 
nants will  not  be  cut  down  unless  the  intention  of  the  parties 
clearly  appears.46  (3)  Where  restrictive  words  are  inserted  in 

held  that  a  material  deficiency  in  the  quantity  of  land  conveyed,  is  a  breach 
of  the  covenant  of  warranty.  Patton  v.  Schneider,  23  Ky.  L.  Rep.  2190;  66 
S.  W.  Rep.  1003. 

48  Burke  v.  Nichols,  34  Barb.   (N.  Y.)  430;  S.  C.,  2  Keyes  (N.  Y.),  670. 

"Morgan  v.  Godlbee,  146  Ga.  352,  91  S.  E.  117. 

43  2  Sugd.  Vend.  (14th  ed.)  279  (605)  ;  Rawle  Covts.  (5th  ed.)   §  289. 

48 2  Sugd.  Vend.  (14th  ed.)  605;  Rawle  Covts.  (5th  ed.)  §  295.  Everts  v. 
Brown,  1  D.  Chip.  (Vt.)  96;  1  Am.  Dec.  699.  Black  v.  Barton,  13  Tex.  82. 
Where  a  deed  of  bargain  and  sale,  written  on  a  printed  blank,  contained  a 
proviso,  following  immediately  after  the  covenants,  that  the  premises  should 
be  kept  for  the  manufacture  of  lumber,  it  was  held  that  the  proviso  applied 
to  the  grant  only,  and  not  to  the  intervening  covenants  for  title.  Reed  v. 
Hatch,  55  N.  H.  336. 


066  MARKETABLE    TITLE    TO    REAL    ESTATE. 

the  first  of  several  covenants  having  the  same  object,  they  will  "be 
construed  as  extending  to  all  the  covenants,  although  they  are 
distinct/7  (4)  Where  the  first  covenant  is  general,  a  subsequent 
limited  covenant  will  not  restrain  the  generality  of  the  preced- 
ing covenant,  unless  an  express  intention  to  do  so  appear,  or  the 
covenants  be  inconsistent,  or  unless  there  appear  something  to 
connect  the  general  covenant  with  the  restrictive  covenant,  or 
unless  there  are  words  in  the  covenant  itself  amounting  to  a 
qualification.48  As,  on  the  one  hand,  a  subsequent  limited  cove- 
nant does  not  restrain  a  preceding  general  covenant,  so,  on  the 
other,  a  preceding  covenant  will  not  enlarge  a  subsequent  limited 
covenant.  (6)  Where  the  covenants  are  of  divers  natures  and 
concern  different  things,  restrictive  words  added  to  one  will  not 

41  Browning  v.  Wright,  2  Bos.  &  Pul.  13;  Hoiwell  v.  Richards,  11  East,  633; 
Whallon  v.  Kauffman,  19  Johns.  (N.  Y.)  97.  Davis  v.  Lyman,  6  Conn.  252. 
Duval  v.  Craig,  2  Wh.  (U.  .S.)  45.  See,  also,  Xind  v.  Marshall,  1  Brod.  & 
Bing.  319.  Dickinson  v.  Hoomes,  8  Grat.  (Va.)  353.  Campbell  v.  Watkins, 
105  Va.  824,  54  S.  E.  989.  A  formal  covenant  of  warranty  will  not  be  cut 
down  by  the  use  of  doubtful  expressions.  Thus,  where  such  a  covenant  was 
followed  by  the  words  "  according  to  a  mortgage  this  day  assigned "  to  the 
grantee,  the  meaning  of  which,  upon  all  the  facts  of  the  case,  was  left  in 
doubt,  the  court  held  that  they  did  not  limit  or  control  the  preceding  cove- 
nant. Cornish  v.  Capron,  136  N.  Y.  232;  32  X.  E.  Rep.  773.  Where  the  gran- 
tees covenanted  that  they  would  "  warrant  specially  the-  land  hereby  con- 
veyed," and  further,  in  the  same  clause,  "  that  they  have  the  right  to  convey 
the  said  land  to  said  grantees,"  it  was  held  that  the  special  warranty  limited 
the  operation  of  the  covenant  of  right  to  convey.  Allemong  v.  Gray,  92  Va. 
216;  23  S.  E.  Rep.  298. 

"Sugd.  Vend.  (14th  ed.)  606  (280);  Rawle  Covts.  (5th  ed.)  §  291.  Rowe 
v.  Heath,  23.  Tex.  619.  Sheets  v.  Joyner,  (Ind.)  38  X.  E.  Rep.  830.  Morri- 
son v.  Morrison,  38  Iowa,  73.  Peters  v.  Giubb,  21  Pa.  St.  460.  Atty.-Gen. 
v.  Purmort,  5  Paige  Ch.  (X.  Y.)  620.  See,  also,  Cole  v.  Hawes,  2  Johns.  Can. 
(N.  Y.)  203.  Cornell  v.  Jackson,  3  Cush.  (Mass.)  506;  Phelpe  v.  Derk.-r. 
10  Mass.  267.  Joiner  v.  Trust  Co.,  33  Okl.  266,  124  Pac.  1073;  Bender  v. 
Fromberger,  4  Dallas  (Pa.),  440,  where  it  was  held  that  a  special  warnmu 
in  a  deed  would  not  control- a  preceding  general  warranty,  if  it  appeared  from 
the  face  of  the  deed  that  a  general  warranty  was  intended.  A  special  cov- 
enant to  warrant  and  defend  the  premises  against  the  grantor's  taxc*.  and 
against  the  grantor's  own  acts,  does  not  limit  a  prior  general  covenant  impli.  .1 
from  the  words  "convey  and  grant."  Jackson  v.  Grun,  112  Ind.  341;  14 
N.  E.  Rep.  89.  The  rule  stated  in  the  text  has  been  held  applicable  to  a  case 
in  which  the  general  covenant  was  that  implied  from  the  operative  words  of 
conveyance  "grant,  bargain,  and  sell."  Miller  v.  Bayles*,  194  Mo.  637,  92 
S.  \Y.  483;  Wright  v.  Boram,  190  Mo.  App.  336,  177  S.  W.  324. 


COVENANTS  OF   WARRANTY  AND  FOR   QUIET  ENJOYMENT. 

control  the  generality  of  the  others,  although  they  all  relate  to 
the  same  land. 

If  the  grantor  intends  to  limit  his  liability  for  the  title  conveyed, 
he  must  either  convey  without  warranty,  or  insert  special  cove- 
nants in  the  deed  restricting  his  liability.  He  cannot  defend  an 
action  for  breach  of  warranty  on  the  ground  that  he  purchased 
from  one  with  whose  title  he  was  unacquainted,  and  intended  to 
convey  to  the  plaintiff  only  such  title  as  he  thus  acquired.49 

If  the  warranty  be  limited  to  a  certain  number,  of  acres  and 
the  covenantee  remains  in  peaceable  possession  of  that  number, 
it  is  no  breach  of  the  warranty  that  a  part  of  the  tract  conveyed 
is  in  the  possession  of  an  adverse  claimant.50 

Where  a  deed  conveys  the  grantor's  right,  title  and  interest, 
though  it  contains  in  general  terms  a  covenant  of  general  warranty, 
the  covenant  is  regarded  as  restricted  and  limited  to  the  estate 
conveyed,  and  not  as  warranting  generally  the  title  to  the  land 
described.  The  covenant  of  warranty  is  intended  to  defend  only 
what  is  conveyed,  and  cannot  enlarge  the  estate  conveyed.50a  'But 
if  the  conveyance  be  of  the  "  right,  title  and  interest  "  of  the 
grantor  in  certain  lands,  and  the  grantor  covenants  specially  to 
warrant  and  defend  the  premises  against  all  lawful  claims  arising 
under  himself,  the  covenant  will  be  construed  to  refer  to  the  lands 
described  in  the  deed,  and  not  to  the  right  and  title  of  the 
grantor.51  If  general  covenants  are  entered  into  contrary  to  the 

49  Chitwood  v.  Russell,  36  Mo.  App.  245. 

50  Folk  v.  Graham,  82  S.  C.  66,  62  S.  E.  1106,  citing  Morris  v.  Owens,  3 
Strobh.  (S.  C.)  Law  203  and  Whalon  v.  Kauffman,  19  Johns.  (N.  Y.)  97. 

6°aWashb.  Real.  Prop.  665;  Rawle  Covt.  (5th  ed.)  §  298;  Wait's  Act.  &  Def. 
391.  Blanchard  v.  Brooks,  12  Pick.  (Mass.)  67;  Allen  v.  Holton,  20  Pick. 
(Mass.)  463;  Sweet  v.  Brown,  12  Met.  (Mass.)  175;  45  Am.  Dec.  243; 
Stockwell  v.  Couillard,  129  Mass.  231.  Ballard  v.  Child,  46  Me.  153;  Bates 
v.  Foster,  59  Me.  158;  8  Am.  Rep.  406;  Blanchard  v.  Blanchard,  48  Me.  174; 
Kimball  v.  Semple,  25  Cal.  452;  Adams  v.  Ross,  30  X.  J.  L.  510.  McXear  v. 
McComber,  18  Iowa,  14;  Young  v.  Clippinger,  14  Kans.  148;  White  v.  Brocaw, 
14  Ohio  St.  339;  Lamb  v.  Wakefleld,  1  Sawy.  (U.  S.)  251;  Hope  v.  Stone, 
10  Minn.  141  (114);  McDonough  v.  Martin,  88  Ga.  675,  16  S.  E.  59,  18 
L.  R.  A.  343;  White  v.  Stewart  &  Co.,  131  Ga.  460,  62  S.  E.  590;  Hull  v. 
Hull,  35  W.  Va.  155;  13  S.  E.  Rep.  49. 

"Loomis  v.  Bedel,  11  N.  H.  74;  Mills  v.  Catlin,  22  Vt.  106.  Here  the 
language  of  the  deed  was  "All  the  land  which  I  own  by  virtue  of  a  deed  dated 
*  *  *  from  Asa  S.  Mills,  recorded  *  *  *  being  all  my  right  and  title 


368 


MARKETABLE    TITLE    TO    REAL    ESTATE. 


intention  of  the  parties,  special,  limited  or  restricted  covenants 
having  been  agreed  upon,  a  court  of  equity  will  correct  the  mis- 
take, and  reform  the  instrument" 

The  covenant  of  general  warranty  implied  from  the  use  of  the 
words  "  grant,  bargain,  and  sell,"  will  be  restricted  by  a  recital  of 
an  express  understanding  that  the  grantors  warrant  only  against 
the  claims  of  themselves,  their  heirs,  or  those  through  whom 
they  claimed.  In  such  case  the  warranty  will  be  treated  as  special, 
and  not  general.53  If  the  deed,  by  the  granting  clause,  expressly 
provides  that  the  grant  is  subject  to  the  rights  of  grantees  under 
previous  deeds,  such  provision  applies  to  and  limits  the  operation 
of  full  covenants  of  warranty  by  which  it  is  followed.54 

§  136-a.  Exception  of  incumbrance.  It  has  been  held  that 
the  exception  of  an  incumbrance,  in  a  covenant,  against  incum- 
brances,  does  not  restrict  the  operation  and  effect  of  a  subsequent 
covenant  of  warranty.55  There  is  a  conflict  of  authority  upon  the 
point,  but  the  better  opinion  would  seem  to  be  that  the  exception 
extends  to  the  covenant  of  warranty  also,56  in  view  of  the  rule  that 
restrictive  words  inserted  in  the  first  of  several  covenants  having 
the  same  object,  will  l>e  construed  to  extend  to  all  the  covenants, 
though  they  are  distinct ;  "  at  least  such  would  be  the  fair  con- 
to  the  land  comprising  50  acres  off  of  the  east  end  of  lot  No.  75  in  said  town 
*  *  *  to  have  and  to  hold  the  above-granted  and  bargained  premises,"  etc. 
To  this  were  added  all  the  covenants  for  title,  and  it  was  held  that  the  thing 
granted  was  the  land  itself,  and  not  merely  such  title  to  the  land  as  the 
grantor  had,  and  that  he  was  liable  for  a  breach  of  the  covenants.  Clement 
v.  Bank,  61  Vt.  298;  17  All.  Rep.  717.  In  Texas  it  is  held  that  words  con- 
veying all  the  grantor's  "  right,  title,  and  interest"  "  to  have  and  to  hold  the 
premises "  followed  by  a  general  warranty,  constitute  a  warranty  deed. 
Garrett  v.  Christopher,  74  Ttx.  453:  Bumpass  v.  Anderson,  (Tex.  Civ.  App. ) 
51  S.  W.  Rep.  1103;  Kempner  v.  Lumber  Co.,  (Tex.  Civ.  App.)  49  S.  W.  Rep. 
412. 

M2  fiugd.  Vend.  (14th  ed.)  609  (285)  ;  Rawle  Covta.  (5th  ed.)   §  296. 

"Miller  v.  Bayle»s,  101  Mo.  App.  487;  aff'd,  74  8.  W.  Rep.  648. 

"Koch  v.  HuHtis,  113  NVis.  604;  89  N.  W.  Rep.  688. 

*  McLane  v.  Allison,  (K;m«.  App.)  53  Par.  Rep.  781,  citing  Bennett  v. 
Keohn.  67  Wis.  154;  30  N.  W.  Rep.  112;  Manuf'g  Co.  v.  Zellner,  48  Minn. 
408;  51  N.  W.  Rep.  379;  Welbon  v.  Welbon,  109  Mich.  356,  67  N.  W.  Rep. 
338;  Smith  v.  Hogue  (N.  D.)  123  N.  W.  827. 

"Jackson  v.  Hoffman,  9  Cow.   (N.  Y.)   271. 

'-'•2  Sugd.  Vend.  (14th  ed.)   279  (605). 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET   ENJOYMENT.       3691 

struction  of  the  exception  where  the  purchaser  expressly  assumes 
the  payment  of  the  incumbrance.  It  is  not  reasonable  to  suppose 
that  the  parties  having  exempted  the  grantor  from  a  liability  by 
a  provision  to  which  their  attention  was  specially  directed, 
intended  to  reimpose  that  liability  upon  him  by  a  subsequent  war- 
ranty necessary  for  the  protection  of  the  grantee  against  other 
contingencies. 

§  136-b.  Merger  of  prior  agreements  in  the  covenant.  The 
general  rule  is  that  all  prior  or  contemporaneous  agreements 
between  the  parties  respecting  the  title  are  merged  in  the  cove- 
nants for  title;  and  parol  evidence  is  inadmissible  to  show  that 
particular  claims  or  incumbrances  were  excluded  by  the  parties 
from  the  operation  of  the  covenant  of  warranty.58 

§  137.  IMPLIED  COVENANTS.  At  common  law  certain  cove- 
nants were  implied  from  the  word  "  dedi"  (I  have  given)  in  a 
feoffment,  and  from  the  word  "  demisi"  (I  have  demised)  in  a 
lease,  but  no  covenant  was  implied  from  the  words  of  grant  in 
conveyances  operating  under  the  statute  of  uses,  such  as  a  deed  of 
bargain  and  sale,  or  a  lease  and  release.59  In  the  United  States, 
the  feoffment  is  no  longer  in  use,  its  place  being  supplied  by  the 
deed  of  bargain  and  sale.  Hence,  much  of  the  learning  upon  the 
subject  of  implied  covenants  for  title  is  with  us  practically 
obsolete.  The  general  rule,  in  the  absence  of  any  statutory  pro- 
vision on  the  subject,  is,  that  no  warranty  is  implied  in  the  con- 
veyance of  real  property,60  and,  especially,  no  warranty  is  implied 
from  a  mere  recital  in  a  deed.61  In  many  of  the  States  there  are 
statutes  which  give  to  certain  words  of  conveyance,  such  as  "  grant, 
bargain  and  sell,"  effect  as  covenants  of  warranty.62  In  others, 

"Post,  §§  181,  269. 

69Rawle  Covts.  for  Title  (5th  ed.),  §  282. 

60  3  Washb.  Real  Prop.  447 ;  Thompson  v.  Schenectady  R.  Co.,  124  Fed.  274, 

81  O'Sullivan  v.  Griffith,  153  Cal.  502,  &5  Pac.  873. 

MSo  in  Delaware  (Rev.  Stat.  1874,  p.  500),  Indiana  (Rev.  Stat.  1881,  § 
2927),  Wisconsin  (Rev.  Stat.  1878,  §  2208),  and  in  Missouri;  but  the  deed 
must  purport  to  convey  an  indefeasible  estate  in  fee  simple.  Wildemeyer  v. 
Loebig,  222  Mo.  540,  121  S.  W.  75.  The  statute  does  not  apply  where  the 
deed  contains  a  statement  of  claims  against  which  the  title  is  warranted. 
Doak  v.  Smith,  137  Ark.  509,  208  S.  W.  795.  No  covenant  of  warranty  is  im- 
plied from  the  words  "  grant,  bargain,  and  sell "  in  a  quitclaim  deed.  Bald- 

47 


370  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

implied  covenants  are  expressly  abolished,  except,  perhaps,  in  the 
case  of  leases."  In  others,  where  the  common  law  remains 
unchanged  by  statute,  it  is  apprehended  that  its  rules  in  this 
regard  are  still  law,  but  practically  a  dead  letter  by  reason  of 
the  disuse  of  those  conveyances  from  which  the  implication 
springs.84 

As  to  covenants  implied  by  force  of  statute,  it  is  deemed  inex- 
pedient to  enter  into  any  discussion  of  their  form  and  incidents, 
since  they  vary  in  the  different  States,  and  the  decisions  respect- 
ing them  must  be  chiefly  of  mere  local  application.  It  is  to  be 
observed,  however,  that  if  a  deed  contains  covenants  for  title  in 
the  usual  form,  they  will  supersede  those  implied  under  the 
statute  from  the  words  "  grant,  bargain  and  sell,"  or  from  other 
words  of  like  import.65  A  covenant  of  general  warranty  will  not 
be  implied  from  the  recitals  of  a  deed,  when  the  deed  contains 
an  express  covenant  of  special  warranty.66  A  covenant  of  war- 
ranty will  not  be  implied  from  the  word  "  grant,"  where  a  statute 

win  v.  Drew,  (Tex.  Civ.  App.)  180  S.  W.  614.  And  in  the  absence  of  a  statu- 
tory provision,  no  covenants  for  title  are  implied  from  those  words.  Mackin- 
tosh v.  Stewart,  181  Ala.  328,  61  So.  956.  In  a  number  of  the  other  States 
there  are  statutes  which  give  to  the  words  "grant,  bargain  and  sell"  or  the 
like,  the  effect  of  covenants  for  seisin  and  against  incumbrances. 

•Mich.  How.  Amend.  Stat.  8  5656.  Minn.  Rev.  St.  1881,  p.  535.  Oregon, 
Deady's  Laws,  p.  647.  New  York,  3  Rev.  St.  (5th  ed.)  p.  29,  §  160. 

"In  North  Cardlina  it  is  held  that  there  is  no  implied  warranty  in  the  sale 
of  realty,  and  hence  that  the  vendee  of  standing  timber,  without  express  war- 
ranty of  title,  could'  not  recover  the  purchase  money  on  failure  of  the  title. 
Zimmerman  v.  Lynch,  130  N.  C.  61;  40  S.  E.  Rep.  841,  citing  Foy  v.  Hough- 
ton,  85  N.  C.  168;  Huntley  v.  Waddell,  34  X.  C.  32.  Neither  is  there  any 
implied  warranty  of  the  title  to  mortgaged  premises  by  the  mortgagor  on 
foreclosure  sale.  Barden  v.  Stickney,  130  N".  C.  02;  40  S.  E.  Rep.  842. 

"Douglas  v.  Lewis,  Ml  U.  S.  75;  Weems  v.  McCaughan,  7  Sm.  4  M. 
(Miss.)  472;  45  Am.  Dec.  314;  Finley  v.  Steele,  23  111.  56;  Rubens  v.  Hill, 
213  111.  523,  72  N.  E.  1127;  Snider  v.  Van  Petten,  180  111.  App.  677;  Cov- 
enanU  implied  by  statute  from  operative  words  of  conveyance  are  to  be  har- 
monized, if  possible,  with  express  covenants  in  the  deed,  and  allowed  to  stand, 
unless  it  clearly  appears  that  the  express  covenants  were  intended  to  limit  or 
restrict  those  implied  by  statute.  Polak  v.  MaUcn,  22  Idaho,  727,  118  Pac. 
89. 

"Buckner  v.  Street,  15  Fed.  Rep.  365.  McDonough  v.  Martin,  88  Ga.  675; 
16  S.  E.  Rep.  59,  18  L.  R.  A,  343}  White  v.  Stewart,  131  Ga.  460,  62  S.  E. 
690. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       371 

gives  that  effect  to  the  words  "grant,  bargain  and  sell/'67  nor 
from  the  word  "  convey,"  when  the  words  "  grant,  bargain  and 
sell "  are  not  employed,68  nor  from  the  words  "  warrant  and 
defend  "  when  the  statutory  form  "  fully  warrant  and  defend  " 
is  not  used.69  The  statutory  covenants  implied  from  the  words 
"  grant,  bargain  and  sell,"  are  as  operative  in  a  deed  of  trust  to 
secure  payment  of  a  debt,  as  in  an  ordinary  fee  simple  deed.70 

K"o  covenant  for  title  to  realty  can  be  implied  from  the  opera- 
tive words  of  conveyance  in  a  deed  which  purports  to  convey  only 
personal  property.71 

If  a  decree  for  specific  performance  operates,  by  its  terms,  as 
a  conveyance,  such  conveyance  will  have  the  effect  of  a  warranty 
deed.72 

Covenants  implied  in  a  lease.  As  to  covenants  implied  at  com- 
mon law,  it  is  believed  that  but  three  of  them  are  of  any  practical 
use  in  the  States  in  which  the  common  law  is  preserved,  namely : 
(1)  Those  implied  in  the  case  of  a  lease.  (2)  Those  implied  in 
the  case  of  an  exchange.  (3)-  Those  implied  in  the  case  of  a 
partition.  These  are:  (1)  That  the  lessor  has  power  to  make 
the  lease;  and  (2)  That  the  lessee  shall  have  quiet  enjoyment  of 
the  premises.73  The  covenants  will  be  implied  wherever  the  rela- 
tion of  landlord  and  tenant  is  created  by  the  instrument  in  writ- 
ing, whether  the  word  "  demise "  was  or  was  not  employed,7* 
and  the  covenant  for  quiet  enjoyment  will  be  implied,  though 
the  lease  was  by  parol.75  The  covenant  so  implied  will,  of  course, 

"Wheeler  v.  Wayne  Co.,  132  111.  599;  24  N.  E.  Rep.  625.  See,  also,  Gee  v. 
Phurr,  5  Ala.  586;  Frink  v.  Darst,  14  111.  304;  58  Am.  Dec.  575.  Whitehill  v. 
Gotwalt,  3  Pen.  &  W.  (Pa.)  323. 

"Heflin  v.  Phillips,  (Ala.)  11  So.  Rep.  729. 

*»Van  Ness  v.  Royal  Phosphate  Co.,  60  Fla.  284,  53  So.  381,  30  L.  R.  A. 
(X.  S.)  833,  Ann.  Cas.  1912  C.  647. 

'"Cockrill  v.  Bane,  94  Mo.  444;  Boyd  v.  Hazeltine,  110  Mo.  203;  Blanchard 
v.  Haseltine,  79  Mo.  App.  248. 

71  Falls  City  Lumber  Co.  v.  Watkins,  53  Oreg.  212,  99  Pac.  884. 

72  Paris  v.  Golden,  96  Kan.  668,  153  Pac.  528. 

"Mayor  v.  Ma'bie,  3  Kern,  (N.  Y.)  151;  Avery  v.  Dougherty,  102  Ind.  443; 
52  Am.  Rep.  6SO.  Hyman  v.  Boston  Chair  Mfg.  Co.,  58  N.  Y.  Super.  Ct.  282 ; 
11  N.  Y.  Supp.  52. 

74 Bandy  v.  Cartright,  8  Exch.  913;  Dexter  v.  Manley,  4  Cush.  (Mass.)  14; 
Ross  v.  Dysart,  33  Pa.  St.  453. 

"Bandy  v.  Cartright,  8  Exch.  913. 


372  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

be  limited  or  restrained  by  any  express  covenant  which  the  lease 
may  contain.76  So,  also,  by  an  express  provision  in  the  lease  that 
nothing  therein  contained  shall  be  construed  to  imply  a  covenant 
for  quiet  enjoyment.77  If  the  estate  out  of  which  the  lease  was 
granted  determines  before  the  expiration  of  the  lease,  the  implied 
covenant  will  be  at  an  end.78  A  lease  of  the  right  to  collect 
wharfage  for  a  year  is  not  a  "  conveyance  of  real  estate,"  within 
the  meaning  of  a  statute  forbidding  the  implication  of  covenants 
for  title  in  such  conveyances,  and  a  covenant  for  quiet  enjoyment 
will  be  implied  in  such  a  lease.79 

Covenants  implied  in  an  exchange.  The  common-law  deed  of 
exchange  is  rarely,  if  ever,  used  in  modern  times,  the  parties  usu- 
ally executing  separate  conveyances,  the  one  to  the  other.  But 
wherever  a  common-law  deed  of  exchange  is  executed  and  the  word 
"  exchange  "  is  used  as  the  word  of  conveyance,  covenants  for 
quiet  enjoyment  and  further  assurance  are  thereby  implied,  and 
also  a  condition  that,  in  case  of  a  failure  of  the  title,  the  party 
injured  may  re-enter  and  be  seised  of  his  former  estate  in  the 
property  which  he  gave  in  exchange.80 

Covenants  implied  in  partition.  General  covenants  of  warranty 
are  implied  in  a  partition  between  co-parceners  at  common  law, 
but  not  in  a  partition  between  joint  tenants  and  tenants  in  com- 
mon, the  remedy  in  the  latter  case  being  by  bill  in  equity  against 
the  co-tenant  for  contribution.81  And  though,  in  case  of  a  deed 
of  partition  between  co-parceners,  covenants  of  warranty  are 
implied  wherever  the  common  law  remains  unchanged,  the  exist- 
ence of  such  covenants  is  of  little  practical  importance,  owing  to 
the  more  convenient  remedy  by  bill  in  equity  for  contribution.81 

"  Rawle  CovtB.   (5th  ed.)  §  27$. 

"Maeder  v.  Caromlelet,  26  Mo.  114. 

"Adams  v.  Oibney,  6  Bin«r.  ftS6;  Mayor  v.  Baggatt,  01  Miss.  383;  Me- 
Lowry  v.  Croghan,  I  Grant's  Cns.  (Pa.)  307,  311. 

"Mayor  v.  Mabie,  3  Korn.  (N.  Y.I  151. 

*Co.  Litt.  51b.  384;  Rawle  Covts.  (5th  ed.)  |  270;  Gamble  v.  MoClure, 
60  Pa.  St.  282,  obiter,  the  parties  having  executed  separate  deeds  of  bargain 
and  sale. 

M  Rawle  Covta.   (5th  ed.)   f|  277,  278. 

"Walker  v.  Hall,  15  Ohio  St.  355;  86  Am.  Dec.  482;  Sawyers  v.  Cator,  8 
Humph.  (Tenn.)  256;  47  Am.  Dec.  608. 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET  ENJOYMENT.       373 

Covenants  implied  from  recitals  in  a  deed.  No  covenants  are 
implied  from  the  mere  recitals  of  a  deed,  such  as  that  the  prem- 
ises contain  a  specified  number  of  acres,  though  in  some  instances 
such  recitals  estop  the  grantor  from  asserting  an  after-acquired 
claim,  or  denying  the  existence  of  the  facts  recited.83 

§  138.  PARTIES  BOUND  AND  BENEFITED.  £TO  action  can 
be  maintained  for  breach  of  warranty  of  title  against  a  person  not 
a  party  to  the  covenant  of  warranty.  In  a  case  in  which  the 
vendor  had'  only  the  equitable  title,  and  the  purchaser  accepted 
a  conveyance  with  warranty  from  a  third  person  in  whom  was 
the  legal  title,  without  requiring  the  vendor  to  join  in  such  con- 
veyance, it  was  held  that  he  could  not  maintain  an  action  against 
the  vendor  for  breach  of  warranty  on  eviction  by  a  mortgagee.84 
It  is  no  defense  to  the  covenantor  that  he  held  the  property 
merely  as  security  for  a  debt.85  ]STo  action  can  be  maintained  for 
a  breach  of  the  warranty  except  by  the  person  holding  under  the 
warranty  at  the  time  of  the  eviction,  actual  or  constructive,  or 
by  the  legal  representative  of  that  person.86  This  rule,  however, 
does  not  prevent  an  action  by  a  warrantor  against  his  warrantors 
for  reimbursement  of  what  he  has  been  compelled  to  pay  to  his 
warrantee  by  reason  of  the  breach.87 

§  138-a.  Married  women.  At  common  law  a  married  woman 
was  not  bound  by  her  covenant  of  warranty,  except  by  way  of 
rebutter  or  estoppel.  This  rule  has  been  affirmed  in  some  of  the 
American  States  by  statute,  while  in  others,  under  statutes  giving 
her  the  power  to  contract  with  reference  to  her  separate  estate 
as  if  she  were  sole,  she  has  been  held  liable  upon  her  covenants 
for  title,  and  in  still  other  States  there  are  statutes  which  pro- 
vide in  terms  that  she  shall  be  so  liable.  Independent  of  statute, 
it  is  held  in  some  of  the  States  that  the  separate  estate  of  a 
married  woman  may  in  equity  be  subjected  to  the  satisfaction  of 

8S  Whitehall  v.  Gottwalt,  3  Pen.  &  W.  (Pa.)  327.  Ferguson  v.  Dent,  8  Mo. 
673;  Rawle  Covts.  (5th  ed.)  §§  280,  297. 

"Bowling  v.  Benge,   (Ky.)   55  S.  W.  Rep.  422. 

85Delco  Holding  Co.  v.  Rosenthal,  164  N.  Y.  Supp.  785. 

89  Alvord  v.  Waggoner,  88  Tex.  615,  32  S.  W.  872 ;  Hollingsworth  v.  Mexia, 
14  Tex.  Civ.  App.  363,  37  S.  W.  455;  Penny  v.  Woody  (Tex.  Civ.  App.)  147 
S.  W.  872. 

87  Penny  v.  Woody  (Tex.  Civ.  App.)  147  S.  W.  872. 


374  MAKKETAULE    TITLE    TO    Kl.AI.    ESTATE. 

her  covenants  for  title,  while  in  others  such  relief  is  denied  the 
covenantee.88  In  a  State  in  which  she  is  bound  by  her  covenants, 
it  has  been  held  that  parol  evidence  is  not  admissible  to  show  that 
she  joined  in  the  deed  merely  for  the  purpose  of  barring  her 
inchoate  marital  estate  in  the  land  conveyed.89 

It  has  been  held  that  a  widow  who  joined  in  a  deed  merely  for 
the  purpose  of  releasing  her  dower  interest,  was  not  bound  by 
the  warranty  of  title  implied  from  the  oj>erative  words  of  con- 
veyance "  grant,  bargain,  and  sell."90 

§  139.  Heirs  and  devisees.  It  was  necessary  at  common  "law 
that  an  heir  1x3  expressly  named  in  the  covenant  of  the  ancestor 
in  order  that  he  might  be  held  liable  for  the  breach.91  In  America, 
however,  by  virtue  of  generally  prevalent  statutory  provisions, 
which  make  the  real  and  personal  estate  of  a  decedent  assets  for 
the  payment  of  his  debts,  and  charge  the  heir  therewith  to  the 
extent  of  assets  received  by  him  from  the  estate  of  the  ancestor,91 

"The  subject  of  a  married  woman's  liability  upon  her  covenants  for  title 
is  too  extensive  to  admit  of  consideration  in  the  limited  space  that  can  be 
devoted  to  it  in  this  work.  The  student  is  referred  to  Mr.  Rawle's  excellent 
work  on  Covenants  for  Title  (Ch.  13),  and  to  the  various  treatises  on  tin- 
contract  liabilities  of  married  women  for  the  cases  and  authorities  upon  that 
«ubject.  In  Minnesota,  under  a  statute  allowing  a  married  woman  to  con- 
tract in  reference  to  'her  separate  estate  as  if  she  were  a  /one  sole,  it  has 
been  held  that  she  is  bound  by  her  covenants  for  title.  Sandwich  Manfg.  Co. 
v.  Zellmer,  48  Minn.  408;  51  N.  W.  Rep.  379;  Security  Bank  v.  Holmes,  68 
Minn.  538;  71  X.  W.  Rep.  699.  But  a  married  woman  signing  a  deed  merely 
to  release  her  inchoate  dower  right  will  not  be  liable  upon  a  covenant  of 
warranty  contained  in  the  deed.  Scmple  v.  Wharton,  68  Wis.  626;  32  X.  \V. 
Rep.  690.  Pyle  v.  Gross,  92  Md.  132;  48  Atl.  Rep.  713;  Webb  v.  Holt,  113 
Mich.  338;  71  X.  W.  Rep.  637. 

"Security  Bank  v.  Holmes,  68  Minn.  538;  71  N.  W.  Rep.  699. 

"  Waldemeyer  v.  Loebig,  222  Mo.  540,  121  S.  W.  75. 

M  Co.  Litt.  209a. 

"See  the  statutes  of  the  several  States.  Whit  ten  v.  Krick,  31  Ind.  App. 
577;  68  X.  E.  Rep.  694.  An  heir  or  dcvi.-cc  i*  liable  on  the  covenants  of  llic 
-tator  to  the  extent  of  thr -INM-SIUM!  as  well  as  the  real  e>i:il<> 
which  has  come  to  4iis  hands.  Ross  v.  i'erry,  49  X.  H.  540.  Where  a  breach 
of  covenant  has  occurred  after  the  death  of  the  covenantor,  and  his  <•- 
ha*  been  fully  administered,  the  covenantee  will  not  be  driven  to  a  new  ad- 
ministration and  suit  against  the  administrator  <?.  l>.  »..  but  may  sue  the 
In-irs  direct,  and  have  judgment  against  them  to  the  extent  of  assets  received 
!>y  them  from  their  ancestor.  Walker  v.  Deaver,  70  Mo.  664.  If  an  heir 
apparent  convey  with  warranty  and  then  dies  before  the  ancestor,  the,  heirs 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET  ENJOYMENT.       375 

he  is,  under  such  circumstances,  liable  for  the  breach  of  his 
ancestor's  covenants  for  title,  whether  he  was  or  was  not  specially 
named  in  the  covenant.  In  some  of  the  States,  however,  he  cannot 
be  held  liable  until  the  personal  estate  has  been  exhausted.93  At 
common  law  covenant  might  be  maintained  against  the  heir  upon 
the  warranty  of  the  ancestor,  and  such,  it  is  apprehended,  is  the 
law  to-day  in  most  of  the  American  States.  The  enforcement  of 
such  a  liability,  however,  is  peculiarly  appropriate  to  courts  of 
equity  which  are  charged  with  the  administration  of  the  estates  of 
decedents  and  equipped  with  all  the  machinery,  such  as  account 
and  discovery,  needed  to  ascertain  the  quantum  of  assets  descended 
to  the  heir,  the  want  of  other  assets  applicable  to  the  satisfaction 
of  the  breach  of  covenant,  and  other  matters  necessary  for  the 
determination  of  the  precise  sum  in  which  the  heir  is  liable.  In 
some  of  the  States  there  are  statutes  which  provide  that  an  heir 
shall  be  liable  only  in  equity  for  the  debt  of  his  ancestor,  and 
under  such  a  statute  it  has  been  held  that  covenant  could  not  be 
maintained  against  an  heir  on  the  warranty  of  the  ancestor.94  A 
judgment  against  the  heir  in  a  State  in  which  there  are  no  assets 
descended  to  him  will  not  bar  an  action  against  him  in  another 
State  where  such  assets  are  found.95 

Where  a  father,  having  an  interest  only  by  way  of  contingent 
remainder,  conveyed  the  fee  with  general  warranty,  under  the 
impression  that  his  estate  vested,  and  afterwards  his  estate  was 
determined  by  the  happening  of  the  contingency,  his  children, 
who  took  the  estate  under  a  limitation  over,  were  held  not  bound 
by  his  warranty,  because  they  were  in  by  purchase  and  not  by 
descent.96 

of  such  heir  apparent  will  not  'be  'bound  by  the  warranty,  since  they  take,  not 
as  his  heirs,  but  as  heirs  of  his  ancestor.  Habig  v.  Dodge,  127  Ind.  31 ;  25 
N.  E.  Rep.  182.  Where  the  grantor  conveys  with  special  warranty  his  heirs 
or  devisees  can,  of  course,  be  held  liable  only  for  his  acts,  and  not  for  claims 
to  which  the  covenant  did  not  extend.  Gittings  v.  Worthington,  67  Md.  139; 
9  Atl.  Rep.  22S. 

93  Royce  v.  Burrell,  12  Mass.  399.     See,  also,  cases  cited  Rawle  Covts.  for 
Title  (oth  ed.),  p.  520,  note  3. 

94  Rex  v.  Creel,  22  W.  Va.  373. 

""Seall  v.  Taylor,  2  Grat.  (Va.)  532;  44  Am.  Dec.  398. 
"Whitesides  v.  Cooper,  115  N.  C.  570;  20  S.  E.  Rep.  295. 


376  MARKETABLE    TITLE   TO    REAL    ESTATE. 

No  action  can  be  maintained  at  common  law  against  a  devisee 
upon  the  covenant  of  his  testator.  This  rule,  having  been  found 
to  encourage  fraudulent  devises,  was  altered  by  the  statute  3 
and  4  W.  &  M.  c.  14,  §  3,  which  gives  the  covenantee  an  action 
on  the  covenant  against  the  devisee,  provided,  according  to  judicial 
construction,  the  breach  occurred  in  the  testator's  lifetime.  And 
by  subsequent  statutes  the  action  was  extended  so  as  to  embrace 
breaches  occurring  after  the  testator's  death.97  These  statutes,  or 
others  of  similar  import,  are  in  force,  it  is  apprehended,  in  all  of 
the  American  States. 

Joint  covenantors  —  Bankrupts.  If  a  covenant  of  warranty  be 
executed  by  two  or  more  persons  jointly,  it  will  be  presumed  that 
their  liability  is  joint,  that  is,  that  both  are  fully  liable  for  the 
breach,"8  and  words  of  severance  will  be  required  to  render  one 
liable  only  for  his  own  acts."  A  covenant  by  A.  and  B.  that 
"  they  will  warrant  generally  the  land,"  etc.,  is  a  joint  and  several 
covenant,  and  both  will  be  liable  for*  the  full  amount  of  the  dam- 
ages in  case  of  eviction.1  The  general  rule  is  that  if  two  or  more 
persons  join  in  a  conveyance  with  warranty  all  are  bound  as 
joint  warrantors,  although  some  of  them  received  no  part  of  the 
consideration  and  joined  in  the  deed  as  a  matter  of  convenience.2 
The  mere  signing,  however,  of  a  deed  by  a  party  not  named 
therein,  does  not  make  him  a  warrantor  of  the  title.1  If  two  per- 
sons convey  each  an  undivided  moiety  of  certain  premises,  and 

*  Rawle  Covts.  (5th  ed.)  eh.  13.  If  it  he  uncertain  whether  a  person  is 
bound  on  a  covenant  of  warranty  as  devisee  or  aa  a  personal  representative. 
it  is  error  to  enter  up  judgment  against  him  in  both  capacities.  John-  \. 
Hard  in,  (Tex.)  16  8.  W.  Rep.  623. 

"Platt  on  Covts.  117;  Rawle  on  CovK  (.>th  ed.)  8  304;  1  \Vrn-.  Saun.lcr-. 
154,  n.  Donohue  v.  Emery,  9  Met.  (Mass.)  67:  Comings  v.  Little.  24  Pick. 
(Maiw.)  266.  But  see  Redding  v.  Lamb,  81  Mich.  318;  45  N.  \V.  Kep.  !>47. 

*As  in  Evans  v.  Saundera,  10  B.  Mon.  (Ky.)  291.  when-  the  <  .>m.  vancr 
\vas  I iy  four  heirs,  and  each  covenanted  for  his  separate  and  undivided  share 
separately  to  defend.  See,  aho.  Fields  v.  Squires,  1  Dcady  (C.  C.),  36(5; 
Bardell  v.  Trustees,  4  Bradw.  (111.)  04. 

'Click  v.  Green,  77  Va.  827;  Donohue  v.  Emery,  9  Met.  (Mass.)  67; 
I'latt  on  Covts.  part  1,  eh.  3.  f  2. 

•AhWiurn  v.  Watson,  8  fia.  App.  566.  70  S.  E.  19. 

•Tilghman  Lumber  Co.  v.  Matheaon.  8H  8.  C.  432.  70  S.  E.  1033,  a  ease  in 
\\lii.-h  a  mortgagee,  on  receiving  payment  of  his  debt,  signed  the  deed  with 
the  mortgagor. 


COVENANTS  OF   WARRANTY  AND  FOB  QUIET  ENJOYMENT.       377 

one  of  them  enters  into  limited  or  restricted  covenants,  and  the 
other  covenants  generally,  the  latter,  in  case  of  an  eviction  under 
a  title  not  embraced  by  the  limited  covenants,  can  be  held  liable 
only  to  the  extent  of  his  interest  in  the  premises,  that  is,  the 
undivided  moiety,  or  one-half  of  the  damages  resulting  from  the 
breach.4 

A  discharge  in  bankruptcy  will,  of  course,  relieve  the  bankrupt 
from  liability  for  a  breach  of  a  covenant  of  warranty  occurring 
before  the  discharge.  But  the  bankrupt  is  not  relieved  where  the 
breach  occurs  after  the  discharge.5 

§  140.  Personal  representatives.  Fiduciaries.  Agents.  Cestui 
que  trust.  We  have  seen  that  warranty  was  a  covenant  real  at 
common  law,  one  consequence  of  which  was  that  a  personal  action 
of  covenant  could  not  be  maintained,  in  case  of  a  breach,  either 
against  the  covenantor  or  his  personal  representative.  Real  actions 
having  been  long  since  abandoned  both  in  England  and  America, 
covenant  may  be  maintained  against  the  personal  representative 
of  the  covenantor,  whether  named  in  the  covenant  or  not,  and 
whether  the  breach  occurred  before  or  after  the  death  of  the 
testator  or  intestate.6  We  have  also  seen  that  if  fiduciaries  choose 
to  insert  general  or  unlimited  covenants  in  any  conveyance  they 
may  make,  they  will  be  held  personally  liable  thereon.7  In  one 
of  the  States,  at  least,  a  trustee,  empowered  to  convey  with  war- 
ranty, has  the  right  to  insert  in  his  conveyance  covenants  binding 
the  original  grantor,  and  upon  a  breach  of  those  covenants  such 
grantor,  the  creator  of  the  trust,  will  be  held  liable  in  damages.8 
A  cestui  que  trust  cannot  be  sued  upon  the  covenants  of  the 
trustee.9 

A  grantor  who  held  the  legal  title  merely  for  the  purpose  of 

4  Sutton  v.  Bailey,  65  Law  Times  Rep.  528. 

'Bush  v.  Cooper,  18  How.  (U.  S.)  82;  Waggle  v.  Worthy,  74  Cal.  266;  15 
Pac.  Rep.  831;  Wight  v.  Gottschalk  (Term.),  48  S.  W.  Rep.  140;  43  L.  R.  A. 
189.  There  has  been  some  diversity  of  opinion  upon  this  point.  See  Rawle 
Covts.  (5th  ed.)  §  303. 

•Townsend  v.  Morris,  6  Cow.  (N.  Y.)  123;  Tabb  v.  Binford,  4  Leigh  (Va.), 
132;  26  Am.  Dec.  317;  Rawle  Covts.  (5th  ed.)  ch.  13. 

'Ante,  §  69. 

8  Thurmond  v.  Brownson,  69  Tex.  597;   6  S.  W.  Rep.  778. 

"Haran  v.  Stratton,  120  Ala.  145;  23  So.  Rep.  81. 

48 


378  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

conveying  according  to  the  direction  of  other  persons,  and  who  did 
not  receive  the  consideration  recited  in  the  deed,  is  not  liable  for 
a  breach  of  the  covenants  of  title  therein  contained.1*  But  where 
the  vendor  conveyed  with  warranty  to  a  third  person,  at  the 
request  of  and  pursuant  to  an  agreement  with  the  vendee,  it  was 
held  that  he  was  liable  on  his  covenant  to  the  grantee." 

In  a  case  in  which  real  property  was  conveyed,  to  the  agent  of  a 
corporation,  with  covenants  of  general  warranty  and  of  seisin,  the 
grantor  having  knowledge  that  the  purchase  was  made  for  the 
corporation,  and  that  the  purchase  money  was  paid  by  it,  the  prop- 
erty being  afterwards  conveyed  by  the  agent  to  the  corporation,  it 
was  held  that  the  corporation  was  entitled  to  the  benefit  of  the 
covenants.11 

In  a  case  in  Texas,  it  appeared  that  an  agent  bought  land  and 
conveyed  it  with  warranty  in  his  own  name  to  one  who  was  ignor- 
ant of  the  agency.  It  also  appeared  that  the  agent  was  not  author- 
ized to  convey  the  land  and  warrant  the  title.  Nevertheless  it  was 
held  that  the  principal,  by  collecting  the  purchase-money  notes, 
ratified  the  transaction,  and  thereby  became  liable  on  the  warranty 
in  the  agent's  deed.13 

§  140-a.  Municipal  corporations.  It  has  been  held  in  one 
of  the  States,  upon  principles  applicable  everywhere,  that,  in  the 
absence  of  statutory  authority,  a  municipal  corporation  has  no 
j)ower  to  execute  a  deed  with  covenants  of  warranty,  such  power 
not  being  essential  to  the  purposes  and  objects  of  the  corporation ; 
and  hence,  that  the  grantee  in  a  deed  of  swamp  lands  executed  by 
a  county  with  covenants  of  warranty,  could  not  recover  against 
the  county  on  failure  of  the  title.14 

§  141.  Who  may  sue  for  breach  of  warranty.  For  a  breach 
of  the  covenant  of  warranty  occurring  in  the  lifetime  of  the  cove- 
nantee,  his  personal  representative  alone  can  sue.  The  right  to 
recover  damages  for  the  broach  is  a  chose  in  action,  which  passes, 

MDeaver  T.  Deaver,  137  N.  C.  240;  49  S.  E.  Rep.  113. 
"Hunt  v.  Huy,  214  N.  Y.  578,  108  N.  E.  851. 

nt.  Appalachian  Co.  v.  Buchanan,  90  Fed.  Rep.  454. 

"Rutherford  v.  Montgomery,  14  Tex.  Civ.  App.  319;  37  8.  W.  Rep.  625. 
See  also,  Kfta  v.  Swanaon,  115  Minn.  373,  132  N.  W.  335. 

"Harrison  v.  Palo  Alto  Co.,  104  Iowa,  383;  73  N.  W.  Rep.  872. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       379 

like  other  personal  assets,  to  the  executor  or  administrator.15  But 
if  the  breach  occur  after  the  death  of  the  covenantee,  the  right  of 
action  accrues  to  the  heir,  devisee,  or  assignee,  according  to 
whether  the  premises  have  passed  into  the  hands  of  the  one  or  the 
other.16  An  assignee  of  the  covenantee  may,  of  course,  sue  for  a 
breach  of  the  covenant  of  warranty  where  he  himself  is  evicted, 
or  where  he  has  been  held  liable  upon  his  own  warranty  of  the 
same  premises  to  a  subsequent  grantee.17  The  covenant  of  war- 
ranty, in  form,  undertakes  to  warrant  and  defend  the  grantee, 
"  his  heirs  and  assigns,"  against  the  claims  of  all  persons,  etc., 
but  it  is  not  necessary  that  either  the  heirs 18  or  assigns 19  be 
mentioned  in  order  to  give  them  the  benefit  of  the  covenant.  The 
right  of  a  subsequent  grantee  of  the  premises  to  sue  upon  the 
covenant  of  a  remote  grantor  is  hereafter  considered  in  this  chap-* 
ter.  Tenants  in  common,  holding  under  the  same  deed  as  grantees, 
have  several  freeholds,  and  may  sue  separately  for  breach  of  the 
covenant  of  warranty.20  A  tenant  in  dower,  who  is  evicted,  cannot 
maintain  an  action  on  a  warranty  in  the  conveyance  to  her  hus- 
band. The  right  of  action  passes  to  the  husband's  representa- 
tives, and  her  remedy  is  by  a  new  assignment  of  dower.21 

§  142.  WHAT  CONSTITUTES  BREACH.  Tortious  disturbance  or 
eviction.  Collusion.  The  covenant  of  warranty  is  broken  by  an 
eviction  only,  and  the  covenant  for  quiet  enjoyment  by  an  eviction, 
or  by  a  substantial  disturbance  of  the  covenantee  in  the  enjoyment 
of  the  estate,  though  such  disturbance  does  not  amount  to  an  evic- 
tion.22 In  either  case,  the  breach  must  result  from  the  acts  of  on« 

"Grist  v.  Hodges,  3  Dev.  L.   (N.  C.)  201;  Wilson  v.  Peele,  78  Ind.  384. 

14  Pence  v.  Duval,  9  B.  Mon.  (Ky.)   48. 

"See  post,  §§  153,  160. 

18  2  Sugd.  Vend.  577.    Lougher  v.  Williams,  2  Lev.  92. 

19 2  Sugd.  Vend.  577,  and  cases  cited;  Platt  Covt.  523;  3  Law  Lib.  234. 
Redwine  v.  Brown,  10  Ga.  318;  Leary  v.  Durham,  4  Ga.  603.  See  Colby  v. 
Osgood,  29  Barb.  (X.  Y.)  339.  The  contrary  has  been  held  in  North  Carolina, 
Smith  v.  Ingram,  130  N.  C.  100:  40  S.  E.  Rep.  984. 

20  Lamb  v.  Danforth,  59  Me.  322 ;  8  Am.  Rep.  426. 

21  St.  Clair  v.  Williams,  7  Ohio,  396. 

22  Kent  Com.  558    (473),  et  seq.;  3  Washb.  Real  Prop.  ch.  5,   §  5;  Rawle 
Covt.  for  Title  (5th  ed.),  ch.  8.     Durbin  v.  Shenners,  133  Wis.  134,  113  N.  W. 
421.     If  the  grantee  with  covenant  for  quiet  enjoyment  be  let  into  possession, 
the  covenant  is  not  broken  merely  because  the  grantor  turns  out  to  have  had 


380  MARKETABLE    TITLE    TO    REAL    ESTATE. 

having  a  better  title  to  the  premises  than  the  covenantor.  An 
unsuccessful  attack  upon  his  title  by  a  third  person  °  or  an  evic- 
tion or  disturbance  of  the  possession  by  a  trespasser,  a  mere 
wrongdoer,  or  a  person  having  a  defeasible  claim  to  the  prem- 
ises, does  not  amount  to  a  breach  of  either  covenant.  In  other 
words,  as  has  been  frequently  said,  the  covenant  of  warranty  and 
the  covenant  for  quiet  enjoyment  are  not  broken  by  a  tortious  dis- 
turbance or  eviction.24 

Xcithor  are  they  broken  by  a  collusive  eviction;26    as  where 

only  a  life  estate  instead  of  a  fee.  Wilder  v.  Ireland,  8  Jones  L.  (N.  C.)  88. 
But  if  the  life  estate  fall  in  and  the  covenantee  be  evicted,  the  covenant  for 
quiet  enjoyment  is  of  course  broken.  Parker  v.  Richardson,  8  Jones  L.  (N. 
C.)  452. 

.  *  Burke  v.  Timber  Co.,  224  Fed.  591 ;  Stearns  v.  Jewel,  27  Colo.  App.  390, 
149  Pac.  386. 

»*2  Sugd.  Vend.  (8th  Am.  ed.)  271  (600)  ;  Washb.  Real  Prop.  427;  Rawle 
Covts.  (5th  ed.)  $  127;  Taylor  Landlord  &  Tenant,  g  304,  et  srq.  Wotton  v. 
Hele,  2  Saund.  177,  leading  case;  Howell  v.  Richards,  11  East,  633,  642. 
dictum;  Hayes  v.  Bickerstaff,  Vaugh,  118;  Andrus  v.  Smelting  Co.,  130  U. 
S.  643.  Hoppes  v.  Cheek,  21  Ark.  585;  Playter  v.  Cunningham,  21  Cal.  232; 
Branger  v.  Manciet,  30  Cal.  624:  Davis  v.  Smith,  5  Ga.  274;  47  Am.  Dec. 
279;  Kimball  v.  Grand  Lodge,  131  Mass.  59;  Folliard  v.  Wallace,  2  Johns. 
(X.  Y.)  395;  Beddoe  v.  Wadsworth,  21  Wend.  (N".  Y.)  120;  Kelly  v.  Dutch 
(  hiin-h.  2  Hill  (N.  Y.),  105;  Spear  v.  Allison,  20  Pa.  St.  200;  Schuylkill  &, 
Dauphin  R.  Co.  v.  Schmoele,  57  Pa.  St.  275.  Underwood  v.  Birchard,  47  Vt. 
305;  Mackintosh  v.  Stewart,  181  Ala.  328,  61  So.  956;  Fishel  v.  Browning, 

I  ».'.  N".  C.  71,  5*  S.  K.  759;  Morgan  v.  Davis,  78  W.  Va.  270,  88  S.  E.  847: 
Smith  v.   Moon-.  31   Ky.  L.  R.  838,  104  S.  W.  265;   Pierce  v.  Coryn,  126  111. 
App.  244.    The  covenantee  cannot  recover  in  an  action  for  breach  of  warranty 
the  value  of  timber  wrongfully  taken  from  tin-  land  by  one  having  no  valid 
claim  to  the  land.     Mclnnis  v.   Lyman,  62  Wig.   191.     Compare  Thomas  v. 
\\Y-t.   etc..    Inc.,   04   Wash.    344;    116    Pac.    1074,   where    held,    disapproving 
Lamh  v.  Willis,  1(19  X.  Y.  Supp.  75;  125  App.  Div.  183,  that  it  is  no  defense 
to  the  covenantor  that  the  holder  of  a  timber  right  in  the  land  was,  by  reason 
of  his  failure  to  record  the  conveyance  of  that  right  to  him,  a  trespasser  in 
taking  the  timber.    An  illegal  tax  sale  and  redemption  therefrom  constitutes 
no  breach  of  the  covenant  against  incumbrances,  nor,  it  is  apprehended,  of 
the  covenant  of  warranty.     Cummings  v.  Holt,  56  Vt.  384.     Evidence  that 
certain  persons  are  in  possession  of  the  warranted  premises,  claiming  under  a 
grantee  of  one  who  purchased  at  a  sheriff's  sale  under  judgment  against  the 
covenantor   without   showing  a  conveyance  from  such  grantee  is  insufficient 
evidence  of  an  eviction  under  paramount   title,  since,  for  might  that  appears 
to  the  contrary,  those  in   possession  may  be  mere  trespassers.     Jenkins  v. 

II  -pkins.  8  Pick.    (Mass.)    346. 

»  Davis  v.  Smith,  5  Ga.  247 ;   48  Am.  Dec.  279. 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET  ENJOYMENT.       381 

the  title  was  outstanding  in  the  United  States  for  want  of  proper 
entry,  and  the  grantee  procured  a  third  person  to  enter  the  land 
and  take  the  title  for  his  use,  and  thereafter  suffered  a  pretended 
eviction  by  the  patentee.26 

The  cases  deciding  that  a  tortious  disturbance  is  no  breach  of 
the  covenant  for  quiet  enjoyment  have,  in  most  instances,  arisen 
between  landlord  and  tenant.  It  is  clear  that  in  a  lease  a  general 
covenant  for  quiet  enjoyment  extends  only  to  entries  and  interrup- 
tions by  those  who  have  lawful  right,  for  the  tenant  has  his  remedy 
by  action  against  all  trespassers  and  wrongdoers.27  Therefore, 
where  the  leased  premises  had  formerly  been  a  house  of  ill-repute, 
and  the  lessee  was  so  constantly  disturbed  by  the  calls  of  obnoxious 
persons  that  he  was  compelled  to  leave  the  premises,  it  was  held 
that  there  was  no  breach  of  the  covenant  for  quiet  enjoyment,  and 
that  he  could  not  recover  damages.28  And  to  constitute  a  breach  of 
this  covenant,  the  person  who  disturbs  the  tenant  must  have  some 
lawful  interest  or  right  in  the  realty  and  not  merely  a  title  to  some 
chattel  that  may  be  upon  it.29  The  fact  that  leased  premises  were, 
at  the  time  of  the  lease,  in  the  adverse  possession  of  a  stranger,  is 
no  breach  of  the  covenant  for  quiet  enjoyment,  if  the  person  in 
possession  was  there  without  lawful  right.30  The  paramount  title 
under  which  the  covenantee  is  evicted  need  not  be  a  title  in  fee 
simple.  The  covenant  of  warranty  applies  as  well  to  the  pos- 
session as  to  the  title,  and  if  the  covenantee  be  evicted  by  one 
having  a  term  of  years  in  the  premises,  or,  in  fact,  any  estate  less 
than  a  fee  simple,  the  covenant  is  broken,  and  a  right  of  action 
ensues.31  Upon  the  principle  that  the  covenant  of  warranty  is  not 

29Frix  v.  Miller,  115  Ala.  476;   22  So.  146.     See  post  §  202. 

27KJmball  v.  Grand  Lodge,  131  Mass.  59,  63,  citing  Ellis  v.  Welch,  6  Mass. 
246;  4  Am.  Dec.  122;  Shearman  v.  Williams,  113  Mass.  481.  Gardner  v. 
Keteltas,  3  Hill  (N.  Y.),  330;  38  Am.  Dec.  637.  Howell  v.  Richards,  11  East, 
633,  642.  Dudley  v.  Folliott,  3  T.  R.  584;  Nash  v.  Palmer,  5  M.  &  S.  374. 

MMeeks  v.  Bowerman,  1  Daly   (N.  Y.),  99. 

29Kimball  v.  Grand  Lodge,  131  Mass.  59,  63,  where  the  breach  complained 
of  was  the  removal  of  certain  fixtures  from  the  demised  premises  by  a  prior 
tenant.  But  if  a  prior  tenant  remove  a  building  from  the  premises  under  an 
agreement  with  the  grantor  or  lessor,  this  will  constitute  a  breach.  West 
v.  Stewart,  7  Pa.  St.  123. 

80  University  v.  Joslyn,  21  Vt.  52. 

"Rickert  v.  Snyder,  9  Wend.    (N.  Y.)   420. 


382  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

broken  by  a  tortious  disturbance,  the  covenantor,  as  will  hereafter 
be  seen,  is  not  liable  for  expenses  incurred  by  the  covenantee  in 
defending  the  title  against  an  unfounded  claim.82 

But  the  rule  that  a  covenant  for  quiet  enjoyment  is  not  broken 
by  a  tortious  disturbance  does  not  apply  where  the  disturbance  was 
by  the  covenantor  or  those  acting  under  his  authority  or  direction, 
provided  his  acts  amounted  to  an  assumption  of-  right  and  title," 
and  were  not  mere  trespasses.84  The  failure  of  the  landlord  to 
keep  the  premises  in  repair,  by  reason  of  which  the  tenant  is  com- 
pelled to  abandon  the  premises,  is  no  breach  of  the  covenant  for 
quiet  enjoyment.  The  lessee  should  protect  himself  by  a  covenant 
to  repair.85  If  the  covenant  be  against  the  claims  of  all  persons 

"Post,  §  142.    Butterworth  v.  Volkening,  4  Thomp.  i  C.  (N.  Y.)  650. 

"2  Sugd.  Vend.  («th  Am.  ed.)  272  «(600)  ;  Rawle  Covt.  (5th  ed.)  $  128. 
Corug  Case,  Cro.  Eliz.  644.  Crosse  v.  Young,  2  Show.  415.  Sedgewick  v. 
Hollenback,  7  Johns.  (N.  Y.)  376;  Dyett  v.  Pendleton,  8  Cow.  (X.  Y.)  727; 
Mayor  v.  Mabie,  3  Kern.  (N.  Y.)  131.  Surget  v.  Arighi,  11  Sm.  &  M.  (Miss.) 
87;  49  Am.  Dec.  46.  If  the  landlord  permits  a  building  to  be  erected  on  his 
own  land  so  as  to  encroach  on  the  enjoining  demised  premises,  this  is  a 
breach  of  the  covenant  for  quiet  enjoyment.  Sherman  v.  Williams,  113  Ma--. 
481.  Giving  out  that  the  covenantee  has  no  right  to  premises,  and  bringing 
suits  against  him  and  his  tenants,  in  consequencec  of  which  the  tenant  quits 
the  premises,  and  the  covenantee  is  unable  to  rent  them,  amounts  to  an 
eviction  on  the  part  of  the  covenantor.  Levitsky  v.  Canning,  36  Cal.  299. 
Held,  also,  in  the  same  case,  that  the  entry  of  the  lessor  upon  the  roof  of 
the  demised  premises,  and  converting  the  same  into  a  wash  house  or  place  of 
drying  clothes,  was  a  breach  of  the  covenant  for  quiet  enjoyment.  If  the 
wrongful  acts  of  the  lessor  upon  the  demised  premises  are  such  as  perma- 
nently to  deprive  the  lessee  of  the  beneficial  enjoyment  of  them,  and  the 
lessee,  in  consequence  thereof,  abandons  the  premises,  it  is  an  eviction,  and  the 
intent  to  evict  is  conclusively  presumed.  Skally  v.  Shute,  132  Mass.  367. 

••Mayor  v.  Mabie,  13  N.  Y.  151;  Loundsbery  v.  Snyder,  31  X.  Y.  514: 
Edgerton  v.  Page,  20  X.  Y.  281;  Randall  v.  Albertis,  1  Hilt.  (X.  Y. )  285; 
Drake  v.  Cockroft,  4  E.  D.  Smith  (N.  Y.)  34;  Levy  v.  Bond,  1  K.  I).  Smith 
(X.  Y.),  169;  Campbell  v.  Shields,  11  How.  I'r.  (X.  Y.)  f»»H;  o-rilvi.-  v.  Hall. 
.->  Hill  (N.  Y.),  52;  Doupe  v.  Genin,  1  Sweeny  (N.  Y.  S.  C.),  25,  30,  obiter. 
QMMda  v.  Stabel,  90  N.  Y.  Supp.  533;  98  A  pp.  Div.  600;  Bennett  v.  I  little. 
4  Rawle  (Pa.),  339;  Avery  v.  Dougherty,  102  Ind.  443;  2  X.  E.  Rep.  123; 
Slayback  v.  Jones,  9  Ind.  470,  semble.  Hayncr  v.  Smith.  fi3  111.  430;  14  Am. 
Rep.  124.  Bartlett  v.  Farrington,  120  Mans.  284. 

"Codrington  v.  Denham,  35  X.  Y.  Super.  Ct.  412.  Moore  v.  Weber,  71  I 'a. 
St.  429;  10  Am.  R*p.  708.  A  covenant  for  quirt  enjoyment  is  not  l>r<>ken  by 
the  refusal  of  the  lessor  to  shore  up  the  walls  of  the  leased  premises  to  pre- 
vent them  from  falling  while  an  adjoining  building  is  being  removed,  by 


COVENANTS  OF  WARRANTY  AND  FOli  QUIET  ENJOYMENT. 

whatsoever,  it  will,  as  we  have  seen,  be  restricted  to  the  acts  of 
persons  having  lawful  claims,36  but  if  the  covenant  be  expressly 
against  all  pretending  to  claim,37  or  against  the  acts  of  designated 
persons,38  it  will  embrace  tortious  disturbances  by  such  pretenders 
or  persons  named. 

§  143.  Eminent  domain  and  acts  of  sovereignty.  The  cove- 
nants of  warranty  and  for  quiet  enjoyment  do  not  embrace  acts  of 
sovereignty,39  such,  for  example,  as  the  exercise  of  the  right  of  emi- 
nent domain.40  The  organic  law  of  each  State  provides  that  pri- 

reason  of  which  refusal  the  premises  are  rendered  uninhabitable.  Such 
refusal  would  be  a  breach  only  of  a  covenant  of  seisin.  Howard  v.  Doolittle, 
3  Duer  (N.  Y.),  464;  Johnson  v.  Oppenheim,  34  N.  Y.  Super.  Ct.  416. 

»•  Ante,  p.  336.    KENT,  C.  J.,  in  Folliard  v.  Wallace,  2  Johns.   (N.  Y.)   395. 

31  Chaplain  v.  Southgate,  10  Mod.  383. 

M2  Sugd.  Vend.  (8th  Am.  ed.)  271  (600);  Rawle  Covts.  (5th  ed.)  §  128, 
pi.  2.  Nash  v.  Palmer,  5  Maule  &  S.  374,  the  court  saying:  "  The  covenantor 
is  presumed  to  know  the  person  against  whose  acts  he  is  content  to  covenant, 
and  may,  therefore,  reasonably  be  expected  to  stipulate  against  any  disturb- 
ance from  him,  whether  from  lawful  titfc  or  otherwise.  If  the  warranty  be 
against  the  claim  of  a  ^articular  person,  and  the  covenantee  be  evicted  by 
that  person,  it  is  not  necessary,  in  an  action  for  the  breach,  to  aver  an 
eviction  by  title  paramount.  Patton  v.  Kennedy,  1  Marsh.  (Ky. )  389;  10 
Am.  Dec.  744;  Pence  v.  Duval,  9  B  Mon.  (Ky.)  49.  But  see  Gleason  v. 
Smith,  41  Vt.  293,  where  it  was  said  that  a  covenant  against  the  claims  of 
persons  named  is  a  covenant  against  their  valid  claims,  and  not  against  such 
claims  as  they  make  without  legal  foundation  or  right. 

39  Philips  v.  Evans,  38  Mo.  305,  a  case  in  which  it  was  held  that  govern- 
mental emancipation  of  a  slave,  who  had  been  sold  with  warranty,  was  no 
breach  of  the  warranty.     Osborn  v.  Nicholson,  13  Wall.    (S.  C. )    655.     Dyer 
v.  Wightman    (Legal   Tender  Cases),   12  Wall.    (U.   S.)    549.     In   Cooper  v. 
Bloodgood,  32  N.  J.  Eq.  209    (1880),  it  was  questioned  whether  a  riparian 
owner,  conveying  premises  including  land  between  high  and  low-water  mark, 
would,  in  the  absence  of  an  express  warranty  to  that  effect,  be  held  by  the 
usual  covenants  to  have  warranted  against  the  notorious,  sovereign  title  of 
the  State  to  such  lands  under  water.     See  Barre  v.  Flemings,  29  W.  Va.  314; 
1  S.  E.  Rep.  731,  where  it  was  held  that  a  covenant  of  warranty  in  a  convey- 
ance of  premises  extending  to  "  low-water  mark  "  was  not  broken  by  the  fact 
that  the  public  had  an  easement  therein,  and  that  the  public  authorities  had 
enjoined  the  covenantee  from  building  a  wharf  below  high-water  mark.     The 
lessor  of  a  market  stall  is  not  liable  in  damages  to  the  lessee  for  an  eviction 
under  a  municipal  authority.     Barrere  v.  Bartet,  23  La.  Ann.  722. 

40  Ellis  v.  Welch,  6  Mass.  246;  4  Am.  Dec.   122,  leading  case;   Bumnier  v. 
Boston,  102  Mass.  19;  Boston  Steamboat  Co.  v.  Man-son,  117  Mass.  34,  semble. 
Weeks  v.  Grace,  194  Mass.  296;  80  N.  E.  220.     Patterson  v.  Arthur,  9  Watts 
(Pa.),  152;  Bellinger  v.  Society,  10  Pa.  St.  135;  Dobbins  v.  Brown,  12  Pa. 


MARKETABLE    TITLE    TO    KEAL    ESTATE. 

vate  property  shall  not  be  taken  for  public  purposes  without  com- 
pensation, and  the  covenantee  is  protected  by  provisions  for  the 
indemnity  of  the  owners  of  the  appropriated  lands  made  in  pur- 
suance of  this  law.41  When  the  parties  enter  into  covenants  for 
title  it  will  be  presumed  that  they  had  in  view  only  existing 
rights  under  a  paramount  title,  and  the  power  of  the  State  to 
appropriate  the  premises  for  public  uses  cannot  be  regarded  as 
such  a  right/2  In  one  case  it  was  held  that  the  covenant  of  war- 
ranty was  not  broken  by  condemnation  of  the  premises  to  public 
uses,  though  the  covenantor  had,  before  the  execution  of  the  deed, 
released  all  claim  to  damages.43  The  purchaser  must  also  take 

St.  75,  distinguished  in  Peters  v.  Grubb,  21  Pa.  St.  455;  Workman  v.  Mifflin, 
30  Pa.  St.  362;  Bailey  v.  Miltenberger,  31  Pa.  St.  37;  Schuylkill,  etc.,  R.  Co. 
v.  Sohmoerle,  57  Pa.  St.  271.  See,  also,  Maule  v.  Ashmead,  20  Pa.  St.  483; 
Ross  v.  Dysart,  33  Pa.  St.  452.  Cooper  v.  Bloodgood,  32  N.  J.  Eq.  209.  See 
elaborate  note  to  this  case.  Kuhn  v.  Freeman,  15  Kans.  423;  Gammon  v. 
Blaisdell,  45  Kans.  221;  25  Pac.  Rep.  580.  Stevenson  v.  Loehr,  57  Til.  509; 
11  Am.  Rep.  36.  Dobbins  v.  Brown,  12  Pa.  St.  79,  where  it  was  said  by 
GIBSOX,  C.  J.:  "It  will  scarcely  be  thought  that  a  covenant  of  warranty 
extends  to  an  entry  by  the  authority  of  the  State  in  the  exercise  of  its 
eminent  domain.  Like  any  other  covenant,  it  must  be  restrained  to  what 
was  supposed  to  be  the  matter  in  view;  and  no  grantor  who  warrants  the 
possession  dreams  that  he  covenants  against  the  entry  of  the  State  to  make 
a  railroad  or  a  canal;  nor  can  it  be  a  sound  interpretation  of  the  contract 
that  would  make  him  liable  for  it.  An  explicit  covenant  against  all  the 
world  would  bind  him;  but  the  law  is  not  so  unreasonable  us  to  imply  it. 
The  entry  of  the  public  agents,  and  the  occupancy  of  the  ground,  were  not  a 
breach  of  the.  warranty."  But  see  Scott  v.  Tanner  (Mo.  App.)  208  S.  W.  2«4, 
where  it  was  held  that  the  covenant  of  warranty  was  broken  by  the  existence 
of  a  drainage*  ditch  constructed  under  proceedings  in  eminent  domain. 

"Frost  v.  Earnest,  4  Whart.  (Pa.)  86.  Ellis  v.  Welch,  6  Mass.  246;  4 
Am.  Dec.  122.  Folta  v.  Huntley,  7  Wend.  (N.  Y.)  210. 

"Ellis  v.  Welch,  6  Mass.  24«;  4  Am.  Dec.  122.  Frost  v.  Earnest,  4  Whart. 
(Pa.)  86. 

*  Dobbins  v.  Brown,  12  Pa.  St.  75.  This  ie  a  doubtful  case.  The  release 
was  executed  in  1829.  The  conveyance  with  warranty  was  made  in  1839. 
The  actual  appropriation  of  the  premises  to  public  use  took  place  in  1840. 
Regarding  the  release  as  a  conveyance  of  an  interest  in  the  estate,  there  was 
no  exercise  of  the  right  of  eminent  domain,  and  the  appropriation  of  the 
premises  was  tantamount  to  an  eviction  under  a  prior  title  derived  from  the 
grantor.  Such  a  case  obviously  stands  upon  different  ground  from  one  in 
which  the  covenantee  has  recourse  upon  the  appropriator  for  indemnity.  In 
Stevenson  v.  Lochr,  57  111.  509;  11  Am.  Rep.  36,  it  was  held  that  if  the 
condemnation  transpired  after  the  sale  but  In-fore  the  conveyance,  the  vendor 
would  hold  the  damages  in  trn-t  for  the  vendee,  ami  would  be  accountable 
therefor. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       385 

notice  of  public  statutes  restricting  the  use  of  the  granted  prem- 
ises ;  and  such  restrictions  constitute  no  breach  of  the  covenant 
of  warranty.44  Upon  a  somewhat  similar  principle,  it  has  been 
held  that  the  covenant  does  not  extend  to  the  acts  of  a  newly 
formed  State  in  restricting  the  ownership  of  shore  proprietors  to 
the  line  of  ordinary  high  tide,  the  warranty  having  been  made 
before  the  formation  of  the  State  when  the  owner,  under  the 
territorial  government,  was  permitted  to  extend  his  structures 
out  to  navigable  depth.45 

§  144.  Eviction.  General  rule.  The  covenant  of  warranty  is  a 
covenant  against  eviction  only.  It  is  not  a  covenant  that  the  estate 
conveyed  is  indefeasible.  Except  in  those  States  in  which  the  law 
in  express  terms  gives  to  a  warranty  the  effect  of  a  covenant  of 
seisin,  a  general  covenant  of  warranty  in  a  deed  does  not  imply  a 
covenant  of  seisin,  and,  therefore,  is  not  broken  by  the  existence 
of  a  better  title  in  a  stranger.  Xo  rule  or  principle  of  the  law  of 
warranty  has  been  more  frequently  declared  than  this.46  Xor  does 

"Xeeson  v.  Bray,  19  X.  Y.  Supp.  841.  In  Richardson-Kellett  Co.  v.  Kline, 
70  Fla.  23;  69  So.  203,  it  was  held  that,  in  a  conveyance  of  a  part  of  the 
"  Everglades  "  swamp  land,  a  reservation  of  a  right  in  favor  of  the  State 
to  construct  a  drainage  canal  through  the  land,  would  not  be  a  breach  of 
a  covenant  against  incumbrances;  the  right  in  question  being  also  secured  to 
the  State  by  statute. 

45  Feurer  v.  Stewart,  83  Fed.  Rep.  793. 

49  Kent  Com.  472;  2  Lorn.  Dig.  762;  Rawle  Covts.  (5th  ed.)  §  131.  Barlow 
v.  Delaney,  40  Fed.  Rep.  97.  Xorthern  Pac  R.  Co.  v.  Montgomery,  86  Fed. 
Rep.  251.  Caldwell  v.  Kirkpatrick,  6  Ala.  62;  41  Am.  Dec.  36.  Oliver  v. 
Bush,  125  Ala.  534;  27  So.  Rep.  923;  Gulf  Coal  Co.  v.  Musgrove,  195  Ala. 
219;  70  So.  179.  Beebe  v.  Swartwout,  3  Gil.  (111.)  ISO:  Moore  v.  Vail,  17 
111.  185;  Owen  v.  Thomas,  33  111.  320;  Bostwick  v.  Williams,  36  111.  65; 
85  Am.  Dec.  385.  Wilson  v.  Irish,  62  Iowa,  260;  S.  C.,  57  Iowa,  184.  Emerson 
v.  Minot,  1  Mass.  464;  Lothrop  v.  Snell,  11  Cush.  (Mass.)  453.  Wilty  v. 
Hightower,  12  Sm.  &  M.  (Miss.)  478.  Troxejl  v.  Johnson,  52  Xeb.  46;  71 
X.  W.  Rep.  968;  Troxell  v.  Stevens,  57  Xeb.  329;  77  X.  W.  Rep.  781;  Merrill 
v.  Suing,  66  Xeb.  404;  92  X.  W.  Rep.  618.  Kent  v.  Welch,  7  Johns.  (X.  Y.) 
258;  5  Am.  Dec.  266,  leading  case;  Vanderkarr  v.  Vanderkarr,  11  Johns. 
(X.  Y.)  122;  Kelly  v.  Dutch  Church,  2  Hill  (X.  Y.),  105;  Greenvault  v. 
Davis,  4  Hill  (X.  Y.),  643;  Fowler  v.  Poling,  6  Barb.  (X.  Y.)  165;  Blyden- 
burg  v.  Cotheal,  1  Duer  (X.  Y.).  195.  Inderlied  v.  Honeywell,  84  X.  Y.  Supp. 
333;  88  App.  Div.  144.  Bender  v.  Fromberger,  4  Dall.  (Pa.)  436;  Clarke  v. 
McAnulty,  3  S.  &  R.  (Pa.)  364;  Patton  v.  McFarlane,  3  P.  &  W.  (Pa.)  422; 
Dobbins  v.  Brown,  12  Pa.  St.  75;  Stewart  v.  West,  14  Pa.  St.  336.  Allison 

49 


386  MAKKETAHLK    TITLK    'JO    KKAL    KSTATE. 

the  covenant  of  warranty,  independently  of  statute,  inehide  a  cove- 

V.  Alli-oii.  1  Yerg.  (Tenn.)  16;  Ferris  v.  Harshea.  Mart.  &  Yerg.  (Tenn.)  54; 
17  Am.  Dec.  7*2;  Stuart  v.  Xelson,  4  Hayw.  (Tenn.)  200:  Crutchcr  v.  Stump, 
5  Hayw.  (Tenn.)  100-.  Young  \.  Butler,  1  Head  (Tenn.)  f>4S.  Contra, 
Talbot  v.  Bedford,  Cooke  (Tenn.)  447.  Findlay  v.  Tom-ray,  2  Rob.  (Ya.) 
374,  379;  Marbury  v.  Thornton,  82  Ya.  374;  1  S.  K.  Rep.  909;  Jones  v. 
Richmond,  (Ya.)  13  S.  K.  Rep.  414.  Oshurn  v.  Pritchard,  104  Ca.  145;  30 
S.  E.  Rep.  056;  Bedell  v.  Christy,  62  Kan.  7(50;  64  Pao.  Rep.  (529.  Kunt/man 
v.  Smith.  77  X.  ,1.  Eq.  30;  75  Atl.  1009.  Grant  v.  Mr-Arthur.  153  Ky.  350: 
155  S.  W.  732.  An  encroachment  of  14  indies  on  an  adjoining  lot  w.is  held 
no  ground  for  relief  where  the  grantee  had  not  been  disturbed  in  his  posses- 
sion. Tepper  v.  Xiemier,  32  Ky.  L.  K.  407:  10.)  S.  \V.  S()fi.  In  Clarke  v. 
McAnulty,  3  Serg.  &  R.  (Pa.)  364,  it  was  said  by  GIBSON,  J.:  "The  cove- 
nant of  warranty  protects  only  against  an  ouster  from  the  possession,  and 
there  can,  therefore,  be  no  breach  of  it  aligned  without  alleging  an  actual 
eviction.  It  is  true  that  evidence  of  a  paramount  title  in  a  stranger,  and 
that  the  warrantee  in  consequence  yielded  up  the  possession,  will  support 
such  an  allegation,  for  the  law  does  not  require  the  idle  and  expensive 
ceremony  of  being  turned  out  by  legal  process  when  that  result  would  he 
inevitable.  It  is  unnecessary  to  cite  cases  to  this  point,  the  difference 
between  a  covenant  of  warranty  and  of  scis-in,  being  recognized  as  existing 
in  England  and  our  sister  States."  ATI  apparent  exception  to  the  rule  staled 
in  the  text  will  be  found  in  Daggett  v.  Reas,  70  \Yis.  60;  48  N.  \Y.  Rep.  127, 
where  it  was  held  that  a  covenant  of  warranty  was  broken  by  an  outstanding 
tax  title  in  a  stranger.  This,  however,  was  upon  the  ground  that  recording  the 
tax  deed  constructively  vested  the  possession  in  the  tax  purchaser.  In  South 
Carolina,  the  courts,  following  the  civil  law,  have  held  in  a  number  of  cases 
that  an  eviction  is  not  necessary  to  a  breach  of  the  covenant  of  warranty, 
and  that  the  covenant  is  broken  by  n  superior  title  outstanding  in  a  stranger. 
Pringle  v.  Witten,  1  Bay  (S.  C.),  254;  1  Am.  Def.  612;  Bell  v.  Higgin,  1 
Bay  (S.  C.),  326;  Sumter  v.  \Velch,  2  Bay  (S.  C.),  558:  Mackay  v.  Collins, 
2  Xott  &.  McC.  (S.  C.)  180;  10  Am.  Dec.  586;  Moore  v.  Lanham.  3  Hill  L. 
(S.  C.)  304;  Mitchell  v.  Yaughan.  2  Hrev.  L.  (S.  C.I  100.  But  sec  Jeter  v. 
Glenn,  9  Rich.  L.  (S.  C.)  377,  and.  post,  S  190.  The  same  rule  existed  in 
Texas,  with  this  qualification,  namely,  that  the  purchaser  nm-:  have  bought 
without  notice  of  the  outstanding  title.  Doyle  v.  Hmd,  07  Tex.  062;  4 
S.  \V.  241;  Groesbeck  v.  Harris,  82  Tex.  411;  19  S.  W.  Rep.  850;  since  over- 
ruled in  Land  Co.  v.  Xorth.  92  Tex.  72:  45  S.  W.  904.  See.  also.  Huff  v. 
Reilly,  (Tex.  Civ.  App.)  04  S.  W.  38J.  In  Pence  v.  Gahbert.  63  Mo.  App. 
302,  it  was  held  that  the  covenantce,  who  had  not  been  actually  evicted, 
could  not  recover  substantial  damages  though  judgment  establishing  a  para- 
mount title  to  an  undivided  half  of  the  property,  and  also  n  judgment  for 
metne  profit*,  had  l»een  recovered  against  him.  and  he  had  paid  the  latter 
judgment.  In  the  State  of  Kentucky  also  the  action  may  l>e  maintained 
without  showing  an  eviction  if  the  defendant  is  about  to  remove  his  prop- 
erty from  the  State  or  i«  insolvent,  or  a  non-resident.  Knight  v.  Schroader, 
14S  Kv.  610;  147  S.  W.  378. 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET  ENJOYMENT.       387 

nant  against  incumbrances/7  though  of  course  it  is  broken  as  well 
by  an  eviction  under  an  incumbrance  as  by  the  enforcement  of  the 
rights  of  one  having  the  better  title.48  The  statute  of  limitations 
does  not  run  upon  a  covenant  of  warranty  until  there  has  been  an 
eviction.49  For  the  purpose  of  this  rule,  a  decree  of  court,  in  a 
suit  to  which  the  covenantee  was  a  party,  declaring  title  to  be  in  a 
third  person  was  treated  as  an  eviction.00  For  the  same  purpose, 
possession  of  the  premises  by  an  adverse  claimant  at  the  time  of 
the  covenant,  is  an  eviction.51  An  action  upon  a  covenant  of 
warranty  is  an  action  upon  a  specialty,  and  governed  by  the 
statute  of  limitations  applicable  to  specialties.52  The  cause  of 

4TLeddy  v.  Enos,  (Wash.)  33  Pac.  Rep.  508.  Boreel  v.  Lawton,  90  N.  Y. 
293;  Hebler  v.  Brown,  41  X.  Y.  Supp.  441;  Lennig  v.  Land  Co.,  107  Va. 
458 ;  59  S.  E.  400. 

48  Jackson  v.  McCauley,  13  Wash.  298;  43  Pac.  41.  Shelton  v.  Johnston, 
(W.  Va.)  95  S.  E.  958.  Judgment  of  foreclosure  of  a  vendor's  lien  on  the 
land  is  not  a  breach  of  the  covenant  of  warranty  in  a  conveyance  of  the 
land,  until  there  has  been  a  sale  of  the  land  under  the  judgment.  Davis  v. 
Teal  (Tex.  Civ.  App.)  200  S.  W.  1166. 

49Crisfield  v.  Storrs,  36  Md.  129;  11  Am.  Rep.  480;  X.  Pac.  R.  Co.  v.  Mont- 
gomery, 86  Fed.  251;  Foshay  v.  Shafer,  116  Iowa,  302;  89  N.  W.  Rep.  1106; 
Wiggins  v.  Pender,  132  X.  C.  628;  44  S.  E.  Rep.  362;  Shankle  v.  Ingram, 
133  X.  C.  254;  45  S.  E.  578.  Chenault  v.  Thomas,  26  Ky.  Law  R.  1029; 
83  S.  W.  Rep.  109.  Cheney  v.  Straube,  35  Xeb.  521;  53  X.  W.  Rep.  479. 
Brooks  v.  Mohl,  104  Minn.  404;  116  X.  W.  931;  124  Am.  St.  Rep.  629;  17 
L.  R.  A.  (X.  S.)  1195;  Rennie  v.  Gibson,  (Okl.)  183  Pac.  483;  Whatcom  v. 
Wright.  102  Wash.  566;  173  Pac.  724;  McDonald  v.  Ward,  99  Wash.  354; 
169  Pac.  851;  L.  R.  Ann.  1018  F.  662.  The  statute  begins  to  run,  not  from 
the  time  of  the  assertion  of  the  paramount  title,  but  from  the  time  of  the 
adjudication  of  the  validity  of  that  title  against  the  covenantee.  Gardiner 
v.  McPike  (Mo.  App.)  184  S.  W.  956.  In  Texas,  it  seems  that  the  statute 
is  held  to  run  on  a  covenant  of  warranty  from  the  time  of  institution  of  a 
suit  by  an  adverse  claimant  to  recover  the  land,  regardless  of  the  precise 
time  of  the  eviction.  Alvord  v.  Waggoner,  (Tex.  Civ.  App.)  29  S.  W.  Rep. 
797.  Where  a  remote  grantee  was  evicted  upon  disaffirmance  of  the  con- 
veyance to  the  original  grantee  by  a  minor,  the  statute  did  not  begin  to 
run  until  such  disaffirmance  and  judgment  against  the  defendant  in  a 
suit  by  the  sometime  minor  to  quiet  his  title.  Pritchett  v.  Redick,  62  Xeb. 
296;  86  X.  W.  Rep.  1097. 

so  Foshay  v.  Shafer,  116  Iowa,  302;  89  X.  W.  Rep.  1106.  For  the  like  pur- 
pose; the  fact  that  the  title  is  outstanding  in  the  United  States,  has  been 
held  an  eviction  at  the  time  of  the  covenant.  Quinn  v.  Lee,  137  Ark.  69 ; 
207  S.  W.  211. 

;1  Whatcom  Timber  Co.  v.  Wright,  102  Wash.  566;  173  Pac.  724. 

"Kern  v.  Kloke,  21  Xeb.  529;  33  X.  W.  Rep.  574. 


388  MARKETABLE    TITLE   TO    ItEAL    ESTATE. 

action  accrues  at  the  time  of  the  breach  of  the  warranty,  and 
not  at  the  time  of  the  contract  of  sale.53  It  has  been  held  that 
an  action  may  be  maintained  before  eviction  on  a  bond  "  to 
indemnify  and  make  the  vendee  safe  and  secure  in  the  title.'' : 
Such  a  bond  imposes  a  greater  obligation  than  a  covenant  of  seisin, 
or  for  quiet  enjoyment,  and,  it  has  been  intimated,  is  not  mergerl 
or  extinguished  by  the  acceptance  of  a  deed.55 

The  rule  that  the  covenant  of  warranty  is  not  broken  by  the 
existence  of  a  superior  outstanding  title  in  another  where  there 
has  been  no  actual  eviction,  has  been  held  not  to  apply  where  the 
outstanding  title  is  in  the  State ; M  or  in  the  United  States.57 
As  the  covenant  is  broken  only  by  an  eviction,  it  follows  that  no 
suit  can  be  maintained  on  the  warranty  until  an  eviction,  actual 
or  constructive,  occurs.58 

§  145.  Entry  by  adverse  claimant.  Legal  process.  Eviction  of 
a  grantee  of  lands,  with  warranty,  is  of  two  kinds,  actual  and  con- 
structive. Actual  eviction  is  an  amotion  or  expulsion  of  the 
grantee  from  tho  warranted  estate,  either  by  a  peaceable  entry  and 
disseisin  on  the  part  of  him  who  has  the  superior  title,59  or  by 
the  officers  of  the  law  in  pursuance  of  process  issued  on  a  judg- 
ment or  decree,  establishing  the  title  of  an  adverse  claimant.  In 
a  few  early  cases  it  has  been  held  that  to  constitute  an  eviction, 
the  right  of  the  evictor  must  have  been  established  by  judicial 

"Crawford  Co.  Bank  v.  Baker,  95  Ark.  438;   130  S.  W.  556. 

"Anderson  v.  Washabauph,  43  Pa.  St.   118. 

**Rawle  Covts.     (5th  e<l.)   280,  note  2.     Sot   post,  8  209. 

"Post,  S  149.  Kans.  Par.  R.  Co.  v.  Dunmever,  in  Kan.  543;  Brown  v.  Allen, 
10  N.  Y.  Supp.  714;  MeT.ary  v.  Hastings.  ,3!»  (  :.].  :<ii(i;  2  Am.  Hop.  4.->i>.  Tlii- 
exception  does  not  apply  where  the  grantee  is  in  p«i»i---i.iM  under  title  derived 
through  a  defective  railroad  grant  of  public  land-,  and  has  taken  -teps  to 
perfect  his  title  as  a  bonn  fide  purchaser  hy  procuring  a  patent  from  the 
government,  under  an  act  passed  for  the  relief  of  such  purchasers.  Burr  v. 
Greeley.  52  Fed.  Rep.  920. 

I  ..•!«/.  v.  Hohart,  112  Minn.  S;   127  X.  W.  494. 

"Dennis  v.  Long.  128  Ark.  420;  194  S.  \\ .  i_'.g{7.  Alhright  v.  Schwahland, 
98  Neb.  190;  152  N.  W.  301,  where  held  that  the  cancellation  of  the  cove- 
nantor's entry  and  final  receipt  of  the  receiver,  was  a  constructive  eviction  of 
the  eovenantee. 

"As  in  Hodges  v.  Latham,  98  N".  C.  239;   3  S.  C.  Rep.  495.     Here  the 
nantee   left  the   prcmi-.-   for  a  short  time,  and   upon   his   return   found 
them  in  the  possession  of  one  claiming  under  a  paramount  title. 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET  ENJOYMENT.       389 

decision,  and  the  covenantee  expelled  from  the  premises  by  possess- 
ory process.60  But  the  weight  of  authority  establishes  the  rule 
that  a  lawful  expulsion  of  the  covenantee  from  the  premises  by 
one  having  a  better  right,  operates  a  breach  of  the  covenant  of 
warranty,  whether  the  expulsion  was  or  was  not  in  pursuance 
of  judicial  sanction.61  An  eviction  or  ouster  in  pais  must,  oi 
course,  be  established  by  parol  evidence.62  But  if  there  has  been 
an  actual  eviction  in  pursuance  of  a  judgment  in  ejectment  against 
the  covenantee,  the  record  thereof  will  be  the  only  proper  evidence 
of  the  fact.63 

An  entry  by  mortgagee  upon  demised  premises  for  condition 
broken  and  a  threat  to  expel  the  lessee  unless  he  will  attorn  to  him 
(the  mortgagee)  amounts  to  an  eviction  under  a  statute  giving  the 
mortgagee  a  right  to  enter  for  condition  broken.64  And  a  delivery 
of  seisin  by  the  sheriff  to  a  judgment  creditor  of  the  grantor  in 
satisfaction  of  an  execution  en  the  judgment  is  an  eviction  and 
breach  of  the  covenant  of  warranty.60 

Of  course  there  will  be  no  breach  of  the  covenant  of  warranty  if 
the  grantee  be  evicted  under  an  incumbrance  which  he  assumed  to 

80  Stewart  v.  Drake,  4  Halst.  (N.  J.  L.)  141.  Lansing  v.  Van  Alsytne,  2 
Wend.  (N.  Y.)  563,  obiter;  Hunt  v.  Amidon,  4  Hill  (N.  Y.)  345;  40  Am. 
Dec.  283,  obiter.9  See,  also,  Walker  v.  Robinson,  163  Ky.  618;  174  S.  W.  503. 

"Booker  v.  Bell,  3  Bibb  (Ky.),  173;  6  Am.  Dec.  641.  Fowler  v.  Poling,  6 
Barb.  (N.  Y.)  165.  See,  also,  case  cited  post,  "Constructive  Eviction," 
§146.  A  decree  in  equity,  by  which  the  covenantee  loses  the  land,  is  equiva- 
lent to  eviction  by  process  of  law.  Martin  V.  Martin,  1  Dev.  (N.  C.)  L.  413. 

82  Booker  v.  Bell,  3  Bibb  (Ky.),  173;  6  Am.  Dec.  641.  Randolph  v.  Meeks, 
Mart.  &  Yerg.  (Tenn.)  58. 

88  Booker  v.  Bell,  3  Bibb  (Ky.),  173;  6  Am.  Dec.  641. 

84  Tuft  v.  Adams,  8  Pick.   (Mass.)   547;  Smith  v.  Shepard,  15  Pick.   (Mass.) 
147;  25  Am.  Dec.  432;  White  v.  Whitney,  3  Met.  (Mass.)   81.    The  recording 
of  a  certificate  of  entry  by  a  mortgagee  for  condition  broken  shows  a  breach 
of  the  covenant  of  warranty.     Furnas  v.  Durgin,  119  Mass.  500;  20  Am.  Rep. 
341.     In  Collier  v.  Cowger,  52  Ark.  322;   12  S.  W.  Rep.  702,  it  was  held  that 
a  judgment  foreclosing  a  prior  mortgage  on  the  land  in  the  possession  of  the 
mortgagee  was  a  constructive  eviction.     In  Kidder  v.  Bork,  33  N.  Y.  Supp. 
663,  it  was  held  that  a  mere  allegation  of  a  "  decision  "  establishing  a  lien  on 
the  warranted  premises  was  not  sufficient  as  an  allegation  of  a  judgment  or 
eviction.     It  seems  to  have  been  assumed  in  this  case  that  a  judgment  estab- 
lishing the  lien  would  have  been  equivalent  to  an  eviction. 

85  Gore  v.  Brazier,  3  Mass.  523;  3  Am.  Dec.  182;  Wyman  v.  Brigden,  4  Mass. 
150;  Bigelow  v.  Jones,  4  Mass.  512;  Barrett  v.  Porter,  14  Mass.  143. 


390  MARKETABLE    TITLE    TO    REAL    ESTATE. 

pay  as  part  of  the  purchase  price,  even  though,  by  reason  of  some 
defect  in  the  title,  the  grantee  was  unable  to  effect  a  loan  on  the 
warranted  premises  with  which  to  discharge  the  incumbrance.66 
An  assignment  of  dower  by  metes  and  bounds  in  the  warranted 
premises  and  the  placing  of  the  widow  in  possession  is,  of  course, 
an  eviction  and  breach  of  the  covenant  of  warranty.67  It  has  even 
been  held  that  a  conveyance  of  lands  which  were  at  the  time  sub- 
ject to  dower  was  a  breach  of  this  covenant.68  The  eviction  of  a 
covenantee  by  foreclosure  sale  under  a  mortgage  is  a  breach  of  a 
covenant  of  warranty  though  the  judgment  of  foreclosure  be  after- 
wards reversed,  since  the  reversal  does  not  aifect  the  title  or  pos- 
session of  the  purchaser.69 

The  term  "eviction"  does  not  mean,  in  all  cases,  an  absolute 
expulsion  of  the  coveiiantee  from  the  land.  The  existence  and 
exercise  of  a  private  right  of  way  over  the  premises,  have  been 
held  an  eviction  of  the  grantee,  and,  consequently,  a  breach  of 
the  covenant  of  warranty  and  for  quiet  enjoyment.70  But  the 
mere  existence  of  an  easement  in  the  granted  premises,  which  has 
not  been  asserted:  so  as  to  affect  the  use  of  the  premises,  is  not  a 
breach  of  the  warranty.71 

§  140.  Constructive  eviction.  Inability  to  get  possession.  A 
constructive'  eviction  of  a  grantee,  with  warranty,  occurs  (1) 
Where  the  premises  are  in  the  adverse  possession  of  one  holding 
under  a  superior  title,  and  (2)  Where  the  grantee  surrenders  tin- 
possession  to  one  having  a  better  title,  in  order  to  avoid  an 
inevitable  expulsion  from  the  premises.  (3)  Where  the  covenantor 
refuses,  whether  tortiously  or  not,  to  deliver  po->ession  of  the 
premises  to  the  eovenantee.72  Without  the  one  or  the  other  of  these 

"    Lamb  v.  Baker,   (Xeb.)    52  N.  W.  Rep.  2S5. 

"Johnson  v.  Nyee,  17  Ohio.  66:  40  Am.  Dec.  444.  Davis  v.  Logan,  5  R. 
Mon.  (Ky.)  341.  Lewis  v.  Lewis,  4  Rich.  L.  (S.  C.)  12.  Compare,  Combs 
v.  Corabsl  130  Ky.  827:  114  8.  W.  334. 

*  Blanc-hard  v.   Blanc-hard,  48  Me.   174.. 

*  Smith  v.  Dixon,  27  Ohio  St.  471. 

"Rea  v.  Minkler.  5  Lans.  (N.  Y.)  196.  Kller  v.  Moore,  63  X.  Y.  Supp.  88; 
48  App.  Div.  4H.1. 

"Diseker  v.  Kau  Claire  Land  Co.,  86  S.  C.  281;  68  8.  E.  629.     The  action 

\ill.iL'<-   in   laying  out  a  street   over  tin-  ^rantnl   |nvmi-r-.   i*  an  eviction 

<>i  tli»  grantee.     Baker  v.  Johnson.  165  X.  Y.  Supp.  2J."i:    ITS  App.  Div.  230. 

"Dexter  v.  Manly,  4  Cuah.  (Muns.)  14:  Canada  v.  Strnrbel,  90  X.  Y.  Supp. 
633;  98  App.  Div.  000;  Atler  v.  Kr-kinr.  50  Tex.  Civ.  App.  576;  111  S.  W.  186. 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET   EXJOYMENT.       391 

conditions  there  cannot  be  a  constructive  eviction.73  Where,  at  the 
time  of  a  conveyance,  the  grantee  finds  the  land  in  the  possession 
of  one  claiming  under  a  paramount  title,  the  covenant  of  warranty 
or  for  quiet  enjoyment  will  be  held  to  be  broken,  without  any 
other  act  on  the  part  of  either  the  grantee  or  the  claimant.  The 
claimant  can  do  no  more  towards  the  assertion  of  his  title  than  to 
hold  possession,  and  as  to  the  covenantee,  the  law  will  not  compel 
him  to  commit  a  trespass  in  order  to  establish  a  lawful  right  in 
another  action.74 

"Boreel  v.  Lawton,  90  X.  Y.  293;  43  Am.  Rep.  170;  Mead  v.  Stackpole,  40 
Hun  (X.  Y.),  473. 

74Platt  Covts.  327;  2  Lorn.  Dig.  269;  Rawle  Covts.  (5th  e<h)  §  138.  Clark 
v.  Harper,  6  Vin.  427;  Hacket  v.  Glover,  10  Mod.  143;  Ludwell  v.  Newman, 

6  Term  Rep.  453.     Duval  v.  Craig,  2  Wh.   (U.  S.)    45.     Banks  v.  Whitehead, 

7  Ala.  83;   Crawford  v.  Penclleton,  cited!  7  Ala.  84.     Prestwood  v.  McGowan, 
128  Ala.  267;  29  So.  Rep.  386;   McMullan  v.  Butler,  117  Ga.  845;   45  S.  E. 
Rep.  258.     Moore  v.  Vail,  17  111.  185.     Small  v.  Rives,  14  Ind.  164.     Barnett 
v.   Montgomery,   6  T.   B.  Mon.    (Ky.)    328.     Curtis  v.   Deering,    12   Me.   499. 
Fritz  v.  Pusey,  31  Minn.  368.     Wilty  v.  Hightower,   12  Smed.  &  M.   (Miss.) 
478.      Murphy   v.    Price,   48   Mo.    247;    Blondeau   v.    Sheridan,   81   Mo.   545. 
Rickets  v.  Dickens,  1  Murph.   (X.  C.)   343.     Shrago  v.  Gulley,  174  N.  C.  135; 
93   SV   E.   458,   a   case   in   which   the   granted   premises   encroached   upon   an 
adjoining  lot  by  leaning  out  four  inches  at  the  top  of  the  building.     Shankle 
v.  Ingram,   133  N.  C.  254';   45  S.  E.  Rep.  578.     Wetzel  v.  Richcreek,    (Ohio) 
40  N.  E.  Rep.  1004.     Randolph  v.  Meek,  Mart.  &  Yerg.   (Tenn.)   524;  Bradley 
v.  Dibrell,  3  Heisk.    (Tenn.)    524.     Park  v.  Bates,  12  Vt.  381;   36  Am.  Dec. 
347;   Pitkin  v.  Leavitt,   13  Vt.  379;   Brown  v.   Taylor,   13  Vt.  631;   37   Am. 
Dec.  618;  Clark  v.  Conroe,  38  Vt.  469;  University  v.  Joslyn,  21  Vt.  52;  Smith 
v.   Scribner,  59  Vt.  96;   7  Atl.  Rep.   711.     Sheffey  v.  Gardener,  79  Va.   313. 
Rex  v.  Creel,  22  W.  Va,   373.  McDonald  v.  Ward,  99  Wash.   354;    169   Pac. 
851;  L.  R.  Ann.  1918  F.  662,  where  the  'breach  consisted  in  the  existence  of 
a  railway  right  of  way  through  the  premises.     McConaughay  v.  Bennett,  50 
W.  Va.   172;   40  S.  E.  Rep.  540.     Shattuck  v.  Lamb,  65  N.  Y.  499;   22  Am. 
Rep.   656,  citing  dicta  from  Withers  v.  Powers,  2   Sandf.   Ch.    (X.   Y.)    350, 
and  Winslovv  v.  McCall,  32  Barb.  (N.  Y.)  241.     See,  also,  Gardner  v.  Keteltas, 
3  Hill   (X.  Y.),  332:  38  Am.  Dec.  637;  Grannis  v.  Clark,  8  Cow.   (-X.  Y.)   36. 
Hunt  v.  Hay,  214  X.  Y.  578;   108  X.  E.  851;  Olmstead  v.  Rawson,  188  X.  Y. 
517;  81  X.  E.  456;  Richstein  v.  Welch,  197  Mass.  224;   83  X.  E.  417;  What- 
com  Co  v.  Wright,  102  Wash.  566;    173  Pac.  724;   Hoyt  v.  Rothe,  95  Wash. 
369;   163  Pae,  925;  X.  Y.  &c.  Coal  Co.  v.  Graham,  226  Pa.  348;  75  Atl.  657; 
Ackley  &  Co.  v.  Hunter  Co.,  154  Ala,  416;  45  So.  909;   Croom  v.  Allen,  145 
Ga.   347;    89   S.   E.   199;    Larkin   v.   Trammell,   47   Tex.   Civ.   App.   548;    105 
S.  W.  552;   Shannon  v.  Childers    (Tex.  Civ.  App.)    202  S.  W.   1030.     At  one 
time   a   contrary   doctrine   prevailed   in    the   State   of   Xew   York.     Kortz  v. 
Carpenter,  5  Johns.    (X*.  Y.)    120;  St.  John  v.  Palmer,  5  Hill    (X.  Y.),  601. 


392  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

But  an  adverse  possession  in  a  stranger  will  not  amount  to  a 
breach  of  warranty  unless  he  holds  under  a  title  superior  to  that  of 
the  covenantee.75  Nor  is  there  a  breach  of  the  warranty  where  the 
lands  in  the  adverse  possession  of  another,  were,  by  mistake, 
included  in  the  deed.78  An  inchoate  possessory  title,  which  may 
ripen  into  a  perfect  title  under  the  statute  of  limitations,  will  not 
amount  to  a  constructive  eviction.  The  covenant  of  warranty  is, 
as  we  have  seen,  against  the  claims  only  of  those  who  have  lawful 
right.  The  covenantee  must  show  that  he  was  in  fact  unable  to 
get  possession  from  one  holding  under  color  of  title.  The  mere 
occupancy  of  the  premises  by  a  stranger  without  showing  under 
whom  he  claims,  nor  what  efforts  had  been  made  to  obtain  pos- 
session  from  him,  is  insufficient.77  And  if  the  covenantee  by  his 
own  laches,  suffer  an  imperfect  and  inferior  title  in  one  occupying 
the  land  adversely  to  ripen  into  a  perfect  title  under  the  statute, 

hut  the  rule  there  now  is  that  stated  in  the  text.  Shattuck  v.  Lamb,  supra. 
Where  land  conveyed  was  described  as  bounded  "by  land  of  M.,  by  a  line 
through  the  center  of  the  wall,"  and  the  wall  was  wholly  on  M.'s  land,  it  was 
held  that  the  covenant  or  warranty  was  broken.  Cecconi  v.  Rodden,  147 
Mass.  104;  16  X.  E.  Rep.  749.  As  to  whether  party  wall  is  a  breach  of  cove- 
nant against  incumbrances,  eee  ante.  p.  326.  Ejectment  brought  by  the  cove- 
nantee against  the  adverse  claimant,  and  a  successful  defense  by  the  latter, 
will  give  the  covenantee  the  same  right  to  an  action  on  the  warranty  that  an 
eviction  would.  Cummins  v.  Kennedy,  3- Litt.  (Ky.)  118;  14  Am.  Dec.  45. 
But  the  fact  that  a  suit  to  establish  title  to  leased  premises,  in  which  the 
lessor  is  plaintiff,  is  decided  adversely  to  him,  is  no  breach  of  a  covenant 
for  quiet  enjoyment,  there  being  no  disturbance  of  the  lessee's  pn»r»M.in. 
Hayes  v.  Ferguson,  15  Lea  (Tenn.),  1;  54  Am.  Dec.  398.  For  dicta  or 
intimations  contrary  to  the  rule  stated  in  the  text,  see  Holder  v.  Taylor. 
Hob.  12,  and  Day  v.  Chism,  10  Wh.  (U.  S.)  452,  and  the  early  Xew  York 
cases  cited,  supra,  this  section. 

"Noonan  v.  Le«,  2  Bl.   (U.  S.)   499,  507.     Phelps  v.  Sawyer,  1  Aik.   (Vt. 
I"i7.     1'laytcr  v.  Cunningham,  21   Cal.  232,  a  case  in  which  a  lessee  of  the 
property  refused  to  give  up  the  possession  at  the  expiration  of  his  term.     It 
devolved  upon  tin-  covenantee  to  eject  him. 

'•Maxwell  v.  Bank,   175  X.  C.   180;  95  S.  E.  147.     Pinckard  v.  Mortgage 
1  i:<  Al,i.  .-)71  :  :t!»  So.  350;  Preutwood  V.  Carlton,  162  Ala.  327;  50  So.  J.M. 

"Barry  v.  Guild,  126  111.  439;  18  N.  K.  Hop.  7.10.  In  this  case  tin-re  was  a 
derrick  ami  ton!  IKHIM-  on  tin-  premises  which  were  occupied  by  a  stone  com- 
pany, 4>ut  it  did  not  appear  that  the  company  laid  any  claim  to  the  land  or 
that  the  plaintiff  hud  made  any  effort  to  get  possession  and  judgment  was 
rendered  for  the  defendant. 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET  ENJOYMENT.       393 

he  cannot  recover  on  the  warranty.78  It  is  not  necessary  to  con- 
stitute a  breach  of  warranty  that  the  person  in  possession  shall 
hold  under  a  title  in  fee  simple.  The  covenant  of  warranty  goes 
to  the  possession  as  well  as  to  the  title.  Therefore,  if  a  stranger 
be  in  possession  of  the  premises,  holding  as  tenant  for  life79  or 
for  a  term  of  years,80  and  the  grantee  is  unable  to  get  possession, 
the  covenant  is  broken  and  a  right  of  action  ensues. 

A  decree  of  court  permanently  enjoining  the  covenantee  from 
removing  any  part  of  a  party-wall  erected  partly  on  the  granted 
premises  and  partly  on  the  adjoining  premises,  as  a  protection 
against  freshets,  is  a  constructive  eviction  of  the  covenantee  from 
that  part  of  the  warranted  premises  occupied  by  the  wall.81 

§  147.  Vacant  and  unoccupied  lands.  There  is  no  opportunity 
for  an  application  of  the  doctrine  of  constructive  eviction  by  ina- 
bility to  get  possession  where  the  warranted  premises  consist  of 
wild  and  uncultivated  lands  which  are  vacant  and  unoccupied. 
The  legal  title  draws  after  it  constructive  possession  which  will 
continue  till  actual  eviction,82  and  the  grantee  may  maintain  tres- 

"Rindskop  v.  Trust  Co.,  58  Barb.   (N.  Y.)   49. 

79Blanchard  v.  Blanchard,  48  Me.  174,  a  case  in  which  a  widow  was  entitled 
to  part  of  the  land  as  dower.  Dower  had  not,  it  seems,  been  actually  assigned 
in  this  case,  and  the  broad  proposition  was-  laid  down  that  if  the  warranted 
premises  be  subject  to  d'ower  at  4he  time  of  the  conveyance,  the  warranty  is 
broken  as  soon  as  made.  Citing  Porter  v.  Xoyes,  2  Greenl.  (Me.)  26;  11  Am. 
Dec.  30,  and  Sherman  v.  Ranger,  22  Pick.  (Mass.)  447.  In  Tuite  v.  Miller, 
10  Ohio,  382,  it  was  held  that  a  decree  against  the  covenantee  to  pay  a 
certain  sum  to  a  widow  in  lieu  of  dower  was  not  a  breach  of  the  covenant 
of  warranty.  It  would  be  a  breach  of  a  covenant  against  incumbrances. 

s°Rickert  v.  Snyder,  9' Wend.  (X.  Y.)  420.  Leonard  v.  Gary,  23  Ky.  Law 
R.  1325;  65  S.  W.  Rep.  124.  Anthony  v.  Rockefeller,  102  Mo.  App.  326;  aff'd 
76  S.  W.  Rep.  491,  though  the  grantee  had'  knowledge  of  the  lease.  Bass  v. 
Starns,  108  Ark.  357;  158  S.  W.  136;  Fortescue  v.  Real'  Est.  Co.,  75  X.  J.  L. 
272;  67  Atl.  1024;  Sheldon  v.  Crane,  146  Iowa  461;  125  X.  W.  238.  Compare 
Simonds  v.  Diamond  Match  Co.,  159  Mich.  241;  123  X.  W.  1132;  Baldwin  v. 
Smith,  (Tex.  Civ.  App.)  119  S.  W.  111.  It  has  been  held  that  inability  to 
get  possession  of  the  premises  from  a  lessee,  is  no  breach  of  the  warranty 
if  the  grantee  purchased  with  notice  of  the  outstanding  lease.  Hammond  v. 
Jones,  41  Ind.  App.  32;  83  X.  E.  257. 

"81  Ensign  v.   Colt,  75   Conn.   Ill;   52  Atl.  Rep.  829. 

"Moore  v.  Vail,  17  111.  190.  Wood  v.  Forncrook,  3  Thomp.  &  C.  (N.  Y.) 
303.  Steiner  v.  Baughman,  12  Pa,  St.  106.  Chandler  v.  Brown,  59  X.  H. 
370.  Smith  v.  Lumber  Co.,  131  Ark.  22;  198  S.  W.  107.  In  McLennan  v. 

50 


394  MAKKETAKLE    TITLE    TO    KEAL    ESTATE. 

pass  against  any  one  entering  on  the  land.83  If  the  title  is  defec- 
tive the  grantee  will  have  no  right  of  action  on  the  grantor's 
covenant  of  warranty  until  the  true  owner  or  some  one  claiming 
under  him  has  actually  entered  upon  and  taken  possession  of  the 
premises,"*  or  until  his  rights  have  been  judicially  established 
against  the  grantee.8"  A  mere  sale  of  the  premises  to  a  stranger 
by  the  true  owner  will  not  amount  to  a  constructive  eviction.86 

§  148.  Surrender  uf  possession.  A  grantee  with  warranty  may 
surrender  the  possession  of  the  premises  to  a  holder  of  the  para- 
mount title,  and  this  will  be  a  constructive  eviction  and  breach  of 
the  covenant  of  warranty.  He  is  not  obliged  to  defend  himself 
against  a  title  which  he  is  satisfied  must  ultimately  prevail,*1  or  to 

Prentice,  85  Wis.  427,  it«  appeared  that  the  premises  were  vacant  and  there 
was  nothing  to  prevent  the  rovenantee  from  taking  possession,  except  the 
occupation  of  a  part  of  the  premises  by  a  railroad  embankment  used  by  the 
company  in  rolling  logs  from  its  cars.  It  did  not  appear  that  such  use  was 
adverse  or  hostile  to  the  title  conveyed,  nor  that  the  company  had-  attempted 
to  acquire  any  title  to  the  part  of  the  premises  so  used.  It  was  held  that  the 
facts  stated  did  not  amount  to  a  constructive  eviction  of  the  covenautee. 

"Jackson  v.  Sellick,  8  Johns.  (X.  Y.)  262;  Van  Rensselaer  v.  Van  Rens- 
selaer.  9  Johns.  (X.  Y.)  377.  Mather  v.  Tremty,  3  S.  4  R.  (Pa.)  514:  8  Am. 
Dec.  6»$3. 

M\Vood  v.  Forncrook,  3  Thomp.  &  C.  (X.  Y.)  303;  St.  John  v.  Palmer.  .1 
Hill,  (X.  Y.)  001.  Moore  v.  Vail,  17  111.  190.  But  see  Mclnnis  v.  Lyman,  02 
Win.  191;  22  X.  \V.  40.~>,  where  it  was  held  that  a  conveyance  of  unoc- 
cupied lands  to  which  the  grantor  had  no  title,  is  of  itself  a  constructive 
eviction  and  breach  of  warranty.  See,  also,  Koepke  v.  Winterfield,  110  Wis. 
44:  92  X.  W.  Rep.  437.  Scott  v.  Kirkendall,  88  111.  463;  30  Am.  Rep.  562. 
Snider  v.  Van  Petten,  180  111.  App.  677. 

"Smith  v.  Lumlier  Co.,  131  Ark.  22;  108  S.  W.  107.  Allis  v.  Xininger, 
2.5  Minn.  525,  where  it  was  held  that  a  judgment  in  ejectment  against  a 
grantee  of  unoccupied  lands  and  an  abandonment  of  all  further  claim  to  the 
premises  by  him,  constituted  a  breach  of  the  covenant  of  warranty.  In 
Williams  v.  Sliaw,  X.  C.  Term.  Rep.  197;  7  Am.  Dec.  100,  it  was  held  that  a 
recovery  of  damkges  in  trespa>s  ugainst  the  grantee  for  cutting  down  timber 
on  the  warranted  premises,  wliich  were  unoccupied,  amounted  to  a  breach  of 
the  covenant  of  warranty. 

••Hamilton  v.  Lugk,  88  Ga.  520;  15  S.  E.  Rep.  10.  Green  v.  Irving.  54 
Mi**.  450;  2S  Am.  Rep.  300.  Matteson  v.  Vaughn,  38  Mich.  373.  I..... mi-  v. 
Bedel,  11  X.  H.  74. 

"2  Waif*  Art.  &  Def.  389;  Rawle  CovU.  (5th  ed.),  S  134;  2  Greenl.  Kv.. 
I  244;  7  Am.  &  Kng.  Knryo.  of  L.  30.  Dupuy  v.  Roebuck.  7  Ala.  484.  48S: 
l>avenport  v.  Bartlett.  9  Ala.  17!»;  Criflin  v.  Reynold*.  17  Ala.  198;  Cunter 
V.  Williams.  40  Ala.  572;  Heflin  v.  Phillips,  (Ala.)  11  So.  Rep.  729.  Prcst- 
wood  v.  McGowan,  128  Ala.  207;  29  So.  386.  McGary  v.  Hastings,  39  Cal. 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET   ENJOYMENT.        395 

wait  until  the  true  owner  forcibly  ejects  him,  or  until  he  is  turned 
out  by  the  shoulders  under  legal  process.88  "  The  law  does  not 
require  the  idle  and  expensive  ceremony  of  being  turned  out  by 
legal  process,  when  that  result  would  be  inevitable." 89  There  is  no 

360;  2  Am.  Rep.  456;  Booth  v.  Starr,  5  Day  (Conn.),  282;  5  Am.  Dec.  149. 
Lowery  v.  Yawn,  111  Ga.  61;  36  S.  E.  Rep.  294.  McHullen  v.  Butler  Co.,  117 
Ga.  845;  45  S.  E.  258.  Moore  v.  Vail,  17  111.  185;  Brady  v.  Spruck,  27  111. 
478;  Owen  v.  Thomas,  33  111.  320;  Harding  v.  Larkin,  41  111.  422;  Claycomb 
v.  Hunger,  51  111.  378.  Reasoner  v.  Edmundson,  5  Ind.  395;  Ha  son  v.  Cook- 
sey,  51  Ind.  519;  Axtel  v.  Chase,  S3  Ind.  546;  Bever  v.  North,  107  Ind.  544; 
8  X.  E.  Rep.  576.  Funk  v.  Creswell,  5  Clarke  (Io.),  62:  Thomas  v.  Stickle,  32 
Iowa,  76.  Radcliff  v.  Ship,  Hard.  (Ky.)  279.  Hamilton  v.  Cutts,  4  Hass. 
349;  3  Am.  Dec.  222,  leading  case.  Ogden  v.  Ball,  40  Hinn.  94;  41  X.  W.  Rep. 
453.  Wagner  v.  Finiiegan,  65  Minn.  115;  67  X.  W.  Rep.  795.  Hall  v.  Bray, 
51  Ho.  288;  Morgan  v.  R.  Co.,  63  Mo.  129;  Ward  v.  Ashbrook,  78  Mo.  515; 
Lambert  v.  Estes,  99  Mo.  604;  13  S.  W.  Rep.  284.  Snyder  v.  Jennings,  15 
Xeb.  372;  Real  v.  Hollister,  17  Xeb.  661.  Drew  v.  Towle,  10  Fost.  (X.  H.) 
531;  64  Am.  Dec.  309.  Greenvault  v.  Davis,  4  Hill  (X.  Y.),  643;  Fowler  v. 
Poling,  6  Barb.  (X.  Y.)  165;  Stone  v.  Hooker,  9  Cow.  (X.  Y.)  157;  Home 
Life  Ins.  Co.  v.  Sherman,  46  X.  Y.  373;  Hyman  v.  Boston  Chair  Manfg.  Co., 
58  X.  Y.  Super.  282;  11  X.  Y.  Supp.  52.  Parker  v.  Dunn,  2  Jones  L.  (X.  C.) 
204.  Patton  v.  McFarlane,  3  Pen.  &  W.  (Pa.)  422;  Poyntell  v.  Spencer,  6  Pa. 
St.  254;  Steiner  v.  Baughman,  12  Pa.  St.  106.  Collis  v.  Cogbill,  9  Lea 
(Term.),  137.  Peck  v.  Hensley,  20  Tex.  C73.  Herbert  v.  Handy,  29  R.  I. 
543;  72  Atl.  1102;  Eaker  v.  Harvey  (Mo.)  179  S.  W.  985.  In  Davenport  v. 
Bartlett,  9  Ala.  187,  the  court  said  that:  "In  Roebuck  v.  Dupuy,  7  Ala. 
487,  we  intimated  that  the  plaintiff  might  recover  in  an-  action  upon  a  cove- 
nant of  warranty,  though  he  had  voluntarily  yielded  to  a  dispossession,  pro- 
vided the  title  to  which  he  yielded  was  a  good  title  and  paramount  to  that 
of  the  warrantor;  and,  upon  mature  reilection  and  examination  of  !he  authori- 
ties, we  are  satisfied  that  such  is  the  law.  Why  should  the  vendee  be  com- 
pelled to  involve  himself  in  a  law  suit,  when  it  is  self  evident  he  must  be 
defeated?  What  conceivable  public  or  private  good  is  to  be  accomplished  by 
such  a  course?  Xone  that  we  can  conceive  of,  and  we  are,  therefore,  of 
opinion  that  the  covenantee  has  the  right  to  purchase  in  the  incumbrance  or 
outstanding  title,  and  sue  the  Avarrantor  upon  his  covenant."  In  Allis  v. 
Xininger,  25  Minn.  525,  the  court  observed:  "Although  the  name  eviction  is 
still  used  to  characterize  the  fact  or  facts  which  are  allowed  to  constitute  a 
breach  of  the  covenant,  an  eviction  in  fact  is  no  longer  necessary;"  and, 
continuing,  laid  down  this-  rule:  "If,  at  the  date  of  the  covenant,  there  is  a 
superior  title  in  a  third  person,  whenever  that  title  is  actually  asserted 
against  the  covenantee  and  the  premises  claimed  tinder  it,  and  the  covenantee 
is  obliged  to  yield  and  does  yield  his  claim  to  such  superior  title,  the  cove- 
nant to  warrant  and  defend  is  broken.  To  such  circumstances,  we  may,  for 
the  sake  of  convenience,  apply  the  term  eviction." 

88  Stewart  v.  West,  14  Pa.  St.  336. 

80  Clark  v.  McAnulty,  3  S.  &  R.    (Pa.)    372. 


396  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

reason  why  such  a  surrender  without  the  trouble  and  expense  of  a 
law  suit  should  deprive  him  of  a  remedy  on  the  covenant.  The 
grantor  is  not  injured  by  such  an  amicable  ouster.  On  the  con- 
trary, it  is  a  benefit  to  him,  for  he  thus  saves  the  expense  incurred 
by  the  grantee  in  defending  the  title.90  And  if  he  may  surrender 
the  possession  without  a  legal  contest,  a  fortiori,  may  he  yield  to 
the  true  owner  after  judgment  against  himself  in  ejectment ;  the 
law  having  settled  the  title,  he  need  not  wait  for  its  officers  to 
enforce  the  sentence;  it  is  not  for  the  court  to  discourage  a  ready 
acquiescence  in  its  decisions.91  A  few  cases  may  be  found  inclin- 
ing to  the  view  that  a  voluntary  surrender  of  the  possession  to  an 
adverse  claimant  is  not  such  an  eviction  as  amounts  to  a  breach  of 
the  covenant  of  warranty.92  But  the  rule  as  stated  above  may  be 
regarded  as  settled  law  in  nearly  every  State  of  the  Union.  An 
attornment  by  the  covenantee  to  the  true  owner,  or  to  one  having 
the  right  to  sell  the  premises  under  a  lien  or  incumbrance,  is  a 
enii.-trurtive  eviction.98 

The  surrender  of  possession  must  be  made  to  the  adverse  claim- 
ant. The  covenantee  cannot,  on  failure  of  title,  return  the  prem- 
to  the  covenantor  and  maintain  an  action  for  breach  of  the 
covenant  of  warranty.94 

A  mere  judgment  in  ejectment  against  the  covenantee,  unaccom- 

*°  BRO\\  XSON-.  .!..  in  Greenvault  v.  Davis,  4  Hill   (NT.  Y.),  643. 

"Sterling  v.  Peet,  14  Conn.  254.  Meeks  v.  Meeks,  6  Ga.  App.  304;  63 
S.  K.  270. 

"Dennis  v.  Heath.  11  Sm.  &  M.  (Miss.)  206;  49  Am.  Dec.  51;  Heath  v. 
Newman.  11  Sm.  &  M.  (Miss.)  201.  In  Kentucky,  it  seems  that  the  covenantee 
<-a  unfit  stir  render  the  possession  to  an  adverse  claimant  and  recover  as  for  a 
breach  of  the  covenant  of  warranty,  unless  there  has  been  a  judicial  deter- 
mination of  the  superiority  of  the  adverse  claimant's  title,  even  though  the 
covenantee  can  show  that  such  title  WHS  in  fact  paramount.  Huff  v.  Cumber- 
land Val.  Land  Co..  (Ky.  |  30  S.  W.  Rep.  660  (not  officially  reported). 

'•' 1'iiyntell  v.  Spencer.  15  Pa.  St.  ~2't\.  An  » .xeciit ion  levied  on  land  under  a 
judgment  a-_'ainM  the  covenantor  and  seisin  and  possession  delivered  to  the 
judgment  creditor  is  nn  eviction  and  a  breach  of  the  covenant  of  warranty, 
though  there  IK>  no  actual  amotion  of  the  covenantee  from  the  premise-  l>y 
•  n  <>f  his  attorning  to  the  creditor.  Gore  v.  Brazier.  3  Mnss.  ;V23;  3  Am. 
Dec.  182.  An  entry  ii|M>n  a  mortgaged  estate  to  foredo-e  upon  breach  of  con- 
dition i-,  without  actual  ouster,  an  eviction  for  which  a  warrantor  can 
recover  upon  hi-  mvciiant.  Furnaa  v.  Durgin,  119  Mass.  500;  20  Am.  Rep. 
341. 

"Axtel  v.  Chase,  83  Ind.  riir,. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       397 

panied  by  a  surrender  of  the  possession,  is  not  an  eviction,  and, 
therefore,  not  a  breach  of  the  covenant  of  warranty.95  In  some 
cases  it  has  been  said,  in  a  general  way,  that  a  judgment  in  eject- 
ment amounts  to  an  eviction,  but  upon  examination  it  will  be 
found  that  in  most,  if  not  all  of  the  cases,  the  covenantee  had 
either  yielded  up  the  possession  to  the  plaintiff  in  ejectment,  or 
had  purchased  his  rights  and  remained  in  possession  under  his 
title.96  Of  course,  a  mere  action  of  ejectment  cannot  amount  to  a 
breach  of  the  covenant  of  warranty  until  it  results  in  an  action 

95  Clement  v.  Collins,  59  Ga.  124;  Davis  v.  Smith,  5  Ga.  274;  47  Am.  Dec. 
279;  McDowell  v.  Hunter,  Dudley  (Ga.)  4;  Burns  v.  Vereen,  132  Ga.  349; 
64  S.  E.  113.  Dennis  v.  Heath,  11  Sm.  &  M.  (Miss.)  206;  49  Am.  Dec.  51; 
Heath  v.  Newman,  11  Sm.  &  M.  (Miss.)  201.  Ferris  v.  Harshea,  Mart.  & 
Yerg.  (Tenn.)  48;  Stipe  v.  Stipe,  2  Head  (Tenn.),  169,  semble.  Kerr  v. 
Shaw,  13  Johns.  (1ST.  Y.)  236.  Knepper  v.  Kurtz,  58  Pa.  St.  480;  Paul  v. 
Witman,  3  Watts  &  S.  (Pa.)  407.  Such,  also,  is  the  rule  of  the  civil  law. 
Fowler  v.  Smith,  2  Cal.  568,  citing  Pothier  Cont.  89. 

94  In  Drury  v.  Shumway,  1  D.  Chip.  (Vt.)  110;  1  Am.  Dec.  704,  it  was  held 
that  a  judgment  in  ejectment  against  the  covenantee  was  an  eviction.  The 
covenant  of  warranty  was  broken  by  the  covenantor's  failing  to  defend  the 
title.  See,  also,  Chandler  v.  Brown,  59  N.  H.  370;  Hubbard  v.  Stannaford, 
30  Ky.  L.  R.  1044;  100  S.  W.  232.  And  in  Woodward  v.  Allen,  3  Dana 
(Ky. ),  164,  it  was  broadly  declared  that  a  judgment  against  the  covenantee 
in  ejectment,  without  any  other  fact,  was  equivalent  to  eviction,  but  in  all 
these  cases  it  seems  that  the  covenantee  had  actually  attorned  to  the  eject- 
ment plaintiff,  or  purchased  his  title.  But  see  Boyd  v.  Bartlett,  36  Vt.  9, 
where  the  broad  rule  that  a  recovery  in  ejectment  against  the  covenantee  by 
virtue  of  an  older  and  paramount  title,  was  a  breach  of  the  covenant  of 
warranty  without  actual  eviction,  was  laid  down.  So,  also,  in  King  v.  Kil- 
bride,  58  Conn.  109;  19  Atl.  Rep.  519,  obiter,  and  Clark  v.  Whitehead,  47 
Ga.  516.  Such,  also,  seems  to  be  the  rule  in  Texas,  the  covenantee  being  there 
permitted,  when  sued  in  ejectment,  to  implead  the  covenantor,  and  have  judg- 
ment over  against  him,  as  in  case  of  breach  of  warranty,  if  the  adverse  claim 
be  established.  Kirby  v.  Estill,  75  Tex.  485;  12  S.  W.  Rep.  807;  Johns  v. 
Hardin,  81  Tex.  37;  16  S.  W.  Rep.  623.  In  Finton  v.  Eggleston,  61  Hun 
(N.  Y.),  246;  16  1ST.  Y.  Supp.  121,  it  was  held  that  the  Statute  of  Limita- 
tions began  to  run  upon  a  covenant  of  warranty  as  soon  as  judgment  in  eject- 
ment against  the  covenantee  was  entered,  which  necessarily  gives  to  the 
judgment  the  effect  of  an  eviction.  A  judgment  in  ejectment  against  the 
covenantor,  who  was  impleaded  with  the  covenantee,  is  an  eviction.  Gibbons 
v..  Moore,  98  Ark.  501,  136  S.  W.  937.  The  reversal  of  a  decree  in  favor 
of  the  covenantee,  in  a  suit  by  him  to  quiet  title  to  the  land,  is  a  construc- 
tive eviction  of  the  covenantee.  Beach  v.  Nordman,  90  Ark.  59;  117  S.  W. 
785.  A  judgment  in  ejectment  against  the  covenantee  where  the  lands 
conveyed  were  wild  and  uncultivated,  is  a  breach  of  the  covenant  for  quiet 
enjoyment.  Smith  v.  Lumber  Co.,  131  Ark.  22:  198  S.  W.  107. 


398  M  Alt  KKT  ABLE    TITLE    TO    HEAL    ESTATE. 

or  virtual  eviction  of  the  grantee.97  A  voluntary  abandonment  of 
possession  by  the  eovenantee  after  judgment  in  ejectment  will  not 
be  construed  an  eviction,  unless  possession  of  the  premises  be 
thereafter  taken  by  the  plaintiff  in  ejectment.98  It  has  been  held 
that  if  the  covenant  be  to  defend  the  right  and  title  against  the 
claims  of  all  persons  a  judgment  in  ejectment  against  the  eove- 
nantee will  amount  to  a  breach  of  the  warranty,  though  it  has  not 
resulted  in  an  actual  ouster.99  But  a  eovenantee  who  voluntarily 
paid  off  such  a  judgment,  pending  proceedings  by  the  covenantor 
to  have  it  set  aside,  is  not  entitled  to  recover  on  the  warranty.1  A 
judgment  in  ejectment  for  the  alternative  value  of  the  premises, 
without  improvements,  if  the  plaintiff  should  elect  to  accept  the 
same  instead  of  possession,  has  been  held  a  constructive  eviction 
and  breach  of  warranty.5  A  judgment  in  ejectment  against  the 
eovenantee  where  he  remains  in  possession  under  the  "  occupying 
claimants  act "  pending  assessment  of  the  value  of  his  improve- 
ments, will  not  amount  to  a  constructive  eviction.*  Xor  will  such 
a  judgment,  entered  by  consent  of  parties,  have  that  effect/  A 
money  judgment  against  the  eovenantee,  in  an  action  by  him 
against  a  stranger  to  quiet  title  to  the  land,  has  l>een  held  equiva- 
lent to  an  eviction  of  the  eovenantee.5 

"Miller  v.  A  very,  2  Barb.  Ch.  (Nr.  Y.)  582.  Hooker  v.  Folsom,  4  Ind.  90. 
Soliuylkill  &  Dauphin  R.  Co.  v.  Schmoele,  57  Pa.  St.  271.  Park  v.  Bates.  12 
Vt.  381 ;  36  Am.  Dec.  347.  in  so  far  as  it  holds  that  a  suit  c-ommenoed  by  an 
adverse  claimant  against  the  grantee  to  recover  the  possession,  i-*  a  breach  of 
the  covenant  of  warranty,  is  disapproved  in  Beebe  v.  Swart wout,  3  Oilm. 
(Til.)  IfiS.  The  lessee  of  a  right  to  drill  oil  and  pas  \\clK  \vho  \va<  on  joined 
by  a  grantee  of  the  coal  under  the  land,  the  prant  reserving  to  the  prantor 
the  ripht  to  drill  oil  and  pas  wrlN.  and  \\lio  eoniproini^ed  the  injunction  by 
payment  of  a  sura  of  money,  was  held  not  entitled  to  recover  on  the  lessor's 
eovenant  for  quiet  enjoyment.  Chambers  v.  Smith.  183  Pa.  St.  122;  38  Atl. 
Rep.  W2:  citinp  Duff  v.  Wilson,  fit)  Pa.  St.  310. 

"Hapler  v.  Simpson,  1   Busbee   (N".  C.),  384. 

••Leary  v.  Durham,  4  Oa.  593. 

'Tupple  v.  Hamilton.  100  Oa.  292. 

3  Mason  v.  Kellopp,  38  Mich.  1»2. 

•Lnndprcn  v.  Kerkow.  (Xeb.)  95  N.  W.  Rep.  501. 

•Vincent  v.  Hi.-k-.  ••:}  Ky.  Law  R.  8r>!i .   r,t  s.  W.  458. 

•Sarlln  v.  Beckman,  55  Ind.  App.  03S;  104  N*.  E.  5!)8;  where  held,  also, 
that  the  ripht  to  recover  for  the  breach  was  not  afreet  ed  l>y  the  fact  that 
the  adverse  claimants  would  not  have  known  of  their  interests  but  for  the 
suit  to  quiet  the  title. 


COVENANTS  OF   WAKKANTY  AND  FOE,  QUIET   ENJOYMENT.        399 

The  mere  endorsement  of  the  word  "  cancelled  "  on  a  patent  for 
public  lands  by  the  commissioner  of  the  general  land  office  fifty- 
five  years  after  the  patent  issued,  is  not  a  constructive  eviction 
of  a  person  claiming  title  under  the  patent.6 

§  149.  Hostile  assertion  of  adverse  claim.  The  rule  that  a 
surrender  of  the  premises  to  an  adverse  claimant  operates  a  con- 
structive eviction  and  a  breach  of  the  covenant  of  warranty  is  to 
be  taken  with  this  qualification,  namely,  that  the  surrender  must 
have  been  in  consequence  of  a  hostile  assertion  of  the  rights  of  the 
adverse  claimant.7  In  this  respect  the  covenant  of  warranty  has 
been  distinguished  from  the  covenant  of  seisin  or  the  covenant 
against  incumbrances.  These  are  broken  as  soon  as  made  if  the 
title  be  bad,  or  the  estate  encumbered,  and  the  purchase  of  an 
adverse  claim,  or  an  incumbrance,  or  surrender  of  the  possession 
to  the  claimant,  adds-  nothing  to  the  breach.8  It  has  been  held  that 
a  sale  of  the  premises  by  the  adverse  claimant  does  not  amount  to 
a  hostile  assertion  of  his  title.9  An  exception  to  this  rule  has  been 
declared  to  exist  where  the  sale  is  by  the  State  while  holding  the 
paramount  title.  In  such  a  case  persons  in  possession  under  defec- 
tive titles  may  abandon  the  premises  and  sue  for  a  breach  of  the 
covenant  of  warranty  as  if  actually  evicted.10  It  has  also  been  held 
that  the  rule  that  there  must  have  been  a  hostile  assertion  of  the 
better  title  to  justify  a  voluntary  surrender  of  the  premises,  or  the 

"Ellis  v.  John  Crossley's  Sons,   119  Fed.  779. 

'Morgan  v.  Hannibal  &  St.  ,T.  R.  Co..  63  Mo.  129.  Funk  v.  Creswell,  5 
Clarke  (Io.),  62.  Fritz  v.  Pusey,  31  Minn.  368;  IS  X.  W.  Rep.  94.  Moore 
v.  Vail.  17  111.  185.  Brown  v.  Corson,  16  Oreg.  388;  19  Pac.  Rep.  66.  Joyner 
v.  Smith,  132  Ga.  779;  65  S.  E.  68;  Shaw  Bros.  v.  Guthrie,  14  Ga.  App.  303; 
80  S.  E.  735.  As  the  tenant  cannot  dispute  the  title  of  his  landlord,  the 
covenantee  is  not  justified  in  surrendering  the  title  to  his  tenant.  Bedell  v. 
Christy,  62  Kans.  760;  64  Pac.  Rep.  629. 

'Funk  v.   Creswell.   5   Cl.    (Iowa)    62. 

9  Green  v.  Irving,  54  Miss.  450;  28  Am.  Rep.  360.  Matteson  v.  Vaughn,  38 
Mich.  373.  Loomis  v.  Bedel,  11  X.  H.  74.  In  Hoy  v.  Taliaferro,  16  Miss.  727, 
it  was  held  that  a  sale  of  the  granted  premises  under  execution  against  the 
grantor  was  not  equivalent  to  an  actual  eviction,  though  the  grantee  aban- 
doned the  possession  after  the  sale. 

"Glenn  v.  Thistle,  23  Miss.  42;  Green  v.  Irving,  54  Miss.  450:  28  Am.  Rej>. 
360.  Brown  v.  Allen,  57  Hun  (X.  Y.),  219;  10  X.  Y.  Supp.  714.  McGary  v. 
Hastings,  39  Cal.  368;  2  Am.  Rep.  456.  Dillahunty  v.  Little  Rock  &  Fort 
S.  R.  Co.,  (Ark.)  27  S.  W.  Rep.  1002;  Abbott  v.  Rowan,  33  Ark.  593.  In 
analogy,  Schulenberg  v.  Harriman,  21  Wall.  (U.  S.)  44. 


400  MARKETABLE    TITLE    TO    REAL    ESTATE. 

purchase  of  such  title,  does  not  apply  where  the  title  is  outstanding 
in  the  United  States.11  A  sale  of  the  premises  under  a  prior  deed 
of  trust  or  mortgage,  is  such  hostile  assertion  of  the  paramount 
title  as  will  justify  the  grantee  in  surrendering  the  premises.12 
So,  also,  the  cancellation  of  a  defective  entry  of  the  premises  under 
the  public  land  laws.13 

The  covenantee,  surrendering  the  possession  and  suing  for  a 
breach  of  the  covenant  of  warranty,  must  not  only  show  that  the 
title  to  which  he  yielded  had  been  hostilely  asserted  against  him, 
but  that  it  was  in  fact  superior  to  that  of  the  covenantor.  When 
he  surrenders  or  suffers  the  possession  to  pass  from  him  without  a 
legal  contest  he  takes  upon  himself  the  burden  of  showing  that 
the  person  who  entered  had  a  title  paramount  to  that  of  his 
grantor,14  unless  the  surrender  was  made  after  judgment  in  eject- 
ment against  himself  which  the  grantor  was  requested  to  defend.1 
A  contrary  rule  would  subject  the  defendant  to  much  hardship, 
and  encourage  fraud  and  collusion  on  the  part  of  the  purchaser 
and  adverse  claimants.  The  covenantee  cannot  recover  on  the  war- 
ranty if  lie  surrenders  the  premises  to  one  against  whom  lie  emild 
have  suece-sfully  pleaded  the  statute  of  limitations  if  he  had  been 

"Ante,  §  144.  Kans.  Pac.  R.  Co.  v.  Dtinmeyer,  19  Kans.  543.  Barr  v. 
Greelcy,  52  Fed,  Rep.  <)26,  obiter.  Herington  v.  Clark,  56  Kans.  644;  44  Pac. 
Rep.  ii-J-4:  Holh.way  v.  Milder,  84  Miss.  776;  36  So.  Rep.  531.  Crawford  Co. 
Hank  v.  Baker.  05  Ark.  438;  130  S.  W.  556;  Seldon  v.  Jones  Co.,  74  Ark. 
348:  83  S.  \V.  778;  Dillahunty  v.  Railway  Co.,  59  Ark.  699;  27  S.  \V. 
1002;  28  S.  W.  1557. 

'Mlarr  v.  Shaffer,  52  W.  Va.  207;  43  S.  E.  Rep.  89. 

"Giddingg  v.  Holler,  19  Mont.  263;  48  Pac.  Rep.  8. 

"Hamilton  v.  Cults,  4  Mass.  349,  353;  3  Am.  Dec,  222.  Greenvault  v. 
Davis,  4  Hill  (N.  Y.).  643.  Lamln-rt  v.  K-II-.  W  Mo.  604;  13  S.  W.  Rep. 
284.  Kreymoth  v.  Nelson.  84  Mo.  App.  293.  Snyder  v.  Jennings,  15  Neb.  37ii; 
lit  N.  \V.  Hop.  501;  Cheney  v.  Straulie.  35  Ncl..  521;  53  N.  \V.  IN-p.  479,  and 
<i-2  N.  \V.  Hep.  231.  \\V>1  rope  v.  Chambers,  51  Tex.  ITS.  M,..ire  v.  Vail,  17 
111.  190.  Crane  v.  Colleiil.aii«rh,  47  hid.  256.  Brandt  v.  Foster,  5  Clarke  (Io.), 
Krnik  v.  (  n- \\cll.  .",  <  lurke  (Io.),  62;  Thomas  v.  Slid...  .TJ  Iowa.  71. 
MrKillip  v.  I'.-t.  v_«  Vt.  MI:;;  71  All.  78;  Smith  v.  Ki-eh-\.  1  Hi  Iowa  660: 
1  •_'."•  N.  \V.  »i«i!i.  lli-in  v.  Hunnicutt,  (Ala.)  16  So.  Rep.  162.  In  thi.- 
tin-  covenanter  liiul  incited  the  surrenderee  to  «et  up  a  claim  to  the  promi-e-;. 

11  Post,  I  175.  A  judgment  a^ain-i  tin*  covenantor  in  an  action  against 
him  by  the  ro\onantee.  is  mil  conclusive  on  the  original  covenantor.  Mc- 
CrilliK  v.  Thoma«,  85  8.  W.  Rep.  673;  110  Mo.  App.  679  alFM. 


COVEA'AXTS  OF    \VAltKAXTY  AND  FOii  QUIET  ENJOYMENT.       401 

sued  in  ejectment.  In  such  a  case  the  surrender  will  be  regarded 
as  having  been  made  to  one  who  had  no  title  to  the  premises.16 

We  have  seen  that  a  mere  judgment  in  ejectment  or  other  pos- 
sessory action  against  the  covenantee  is  not  equivalent  to  eviction.17 
It  is  sufficient,  however,  as  a  hostile  assertion  of  the  title  of  the 
adverse  claimant  to  justify  the  covenantee  in  surrendering  pos- 
session to  him,  or  in  buying  in  his  claim.  Xo  duty  devolves  upon 
the  covenantee  to  appeal  from  the  judgment.18 

In  several  early  cases  it  has  been  held  that  a  voluntary  abandon- 
ment of  the  premises  by  the  covenantee  after  judgment  against  him 
in  ejectment  is  not  an  eviction,19  but  they  have  been  frequently 
overruled  or  disapproved,  and  are  no  longer  regarded  as 
authority.20 

§  150.  Purchase  of  outstanding  title.  The  purchase  of  a  supe- 
rior title  to  the  premises  from  a  stranger  by  the  covenantee  is  in 
effect  a  surrender  of  the  possession,  and  a  surrender  of  the  posses- 
sion to  him  who  has  the  better  right  amounts,  as  we  have  seen,  to  a 
constructive  eviction  from  the  premises.  The  law  does  not  require 
either  that  the  covenantee  shall  go  through  the  useless  ceremony  of 
removing  from  the  premises  and  immediately  re-entering  under  his 
newly  acquired  better  title,  or  that  he  should  submit  to  an  actual 
forcible  expulsion  with  or  without  legal  process  in  order  that  he 
may  have  an  action  on  the  covenant  of  warranty.  The  ouster  by 
purchase  of  the  superior  title  without  actually  leaving  the  premises 
is  as  effectual  as  it  could  be  by  peaceably  leaving  them  or  by  suffer- 
ing an  actual  expulsion.  The  covenantor's  interests  are  in  no  way 
subserved  by  requiring  evidence  of  an  actual  dispossession  of  the 
grantee.  On  the  contrary  he  is  benefitted  by  the  purchase,  for 
thereby  he  is  saved  the  expense  which  would  be  incurred  by  the 
grantee  in  defending  the  title.21 

"Britton  v.  Ruffin,  122  X.  C.   113;   28  S.  E.  Rep.  963. 

"Ante,  §  148. 

18Bever  v.  North,  107  Ind.  545;  8  N.  E.  Rep.  576.  Wiggins  v.  Fender,  132 
N.  C.  628;  44  N".  E.  Rep.  362;  McCrillis  v.  Thomas,  85  S.  W.  Rep.  673,  110 
Mo.  App.  699,  aff'd. ;  Meeks  v.  Meeks,  5  Ga.  App.  394 ;  63  S.  E.  270. 

"Webb  v.  Alexander,  7  Wend.  (N.  Y.)  286;  Lansing  v.  Van  Alstyne,  2 
Wend.  (N.  Y.)  563,  note;  Waldron  v.  McCarthy,  3  John?.  (N.  Y.)  473. 

"Greenvault  v.  Davis,  4  Hill  (N.  Y.),  645.     See,  ante,  p.  396. 

"Loomis  v.  Bedel,  11  N.  H.  74.    Lane  v.  Fury,  31  Ohio  St.  574, 

51 


402  MARKETABLE    TITLE    TO    REAL    ESTATE. 

Therefore  it  has  been  frequently  held  that  the  covenantee  in  pos- 
session of  the  estate  may,  to  avoid  an  inevitable  eviction,  buy  in  the 
paramount  title  or  take  a  lease  thereunder  without  actual  change  of 
the  possession.22  This  he  may  do  without  violating  any  duty 
which  he  owes  to  the  covenantor.  Accordingly,  where  the  war- 
ranted premises,  while  in  the  possession  of  the  grantee,  were  sold 
under  decree  of  court  against  the  grantor  to  a  stranger,  the  report 
of  sale  returned  to  and  confirmed  by  the  court  and  a  deed  ordered 
to  be  made  to  the  purchaser,  and-  the  grantee,  without  leaving  the 
possession,  bought  in  the  title  of  the  purchaser  under  the  decree, 
it  was  held  that  nothing  more  could  in  reason  or  in  justice  be 
required  to  show  an  eviction.  The  covenantee  was  not  bound  to 
wait  until  he  was  forced  out  of  possession  by  an  order  of  the 
court.23  While  the  covenantee  may  buy  in  an  outstanding  right  or 
interest  in  order  to  protect  his  interest,  there  is  no  obligation  upon 
him  so  to  do,24  and  it  is  no  defense  to  an  action  on  the  covenant 

"Rawle  Covts.  (5th  ed.),  §  142;  2  Greenl.  Ev.,  $  244.  Barlow  v.  Delaney, 
40  Fed.  Rep.  97.  McGary  v.  Hastings,  39  Cal.  361 ;  2  Am.  Rep.  456.  Amos  v. 
Cosby,  74  Ga.  793.  Davenport  v.  Bartlett,  9  Ala.  179;  Roebuck  v.  Dupuy, 
7  Ala.  487.  Sisk  v.  Woodruff,  15  111.  15;  MeConnell  v.  Downs,  48  111.  271 : 
Claycomb  v.  Munger,  51  111.  378.  Mooney  v.  Burohard,  84  Ind.  285.  Richards 
v.  Homestead  Co.,  44  Iowa,  304;  24  Am.  Rep.  745;  Royer  v.  Foster,  62  Iowa, 
321;  Thomas  v.  Stickle,  32  Iowa,  76.  Sprague  v.  Baker,  17  Mass.  586,  lead- 
ing case;  Leffingwell  v.  Elliot,  10  Pick.  (Mass.)  204:  19  Am.  Dec.  343;  Esta- 
brook  v.  Smith,  6  Gray  (Mass.),  577;  66  Am.  Dec.  445;  Kramer  v.  Carter, 
136  Mass.  504.  Petrie  v.  Fol/,  54  N.  Y.  Super.  Ct.  223.  King  v.  Kerr,  5  Ohio, 
158;  22  Am.  Dec.  777.  Brown  v.  Dickerson,  12  Pa.  St.  372.  Austin  v. 
McKinney,  5  Lea  (Tenn.),  499.  Denson  v.  Love,  58  Tex.  468.  Haffey  v. 
Birchetts,  11  Leigh  (Va.),  83,  88.  Turner  v.  Goodrioh.  26  Vt.  708.  Potwin 
v.  Blasher,  9  Wash.  460;  37  Pac.  Rep.  710.  Pritohett  v.  RedSck,  62  Neb. 
296;  86  N.  W.  Rep.  1091;  Craven  v.  Clary,  8  Kan.  App.  295;  55  Pac.  679. 
Leet  v.  Gratz,  92  Mo.  App.  422.  Hayden  v.  Patterson.  39  Colo.  15;  88  Pac. 
437;  Morgan  v.  Haley,  107  Va.  331;  58  vS.  E.  564;  13  L.  R.  A.  (N.  S.)  732; 
122  Am.  St.  Rep.  846;  Allen  v.  Miller,  99  Minn.  75;  54  So.  731;  Fassler  v. 
Streit,  100  Xeb.  722;  161  N.  W.  172. 

•Hanson  v.  Buckner,  4  Dana  iK\.  .  254.  But  in  a  case  in  which  the 
granted*  premises  had  been  sold  as  property  inherited  by  the  grantor  and 
liable  for  the  debts  of  the  ancestor,  in  a  proceeding  to  which  the  grantee  was 
no  party,  it  was  held  that  such  sale  was  not  binding  on  him,  and  hence  that 
he  was  not  entitled  to  recover,  as  upon  a  breach  of  warranty,  the  amount 
paid  by  him  for  a  quit  claim  from  the  purchaser  at  such  sale.  Pritchard  v. 
Smith,  107  Ky.  483;  64  8.  W.  Rep.  717. 

"Cong,  of  Sisters  v.  Jane,  110  Miss.  612;  70  So.  818. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       403 

that  he  knew  of  the  outstanding  right  at  the  time  he  took  the  con- 
veyance and  might  have  acquired  such  right  for  a  trifling  sum.25 
The  purchase  of  the  outstanding  paramount  title  amounts  to  a 
constructive  eviction,  whether  that  title  has  or  has  not  been  estab- 
lished by  judgment  or  decree.  The  covenantee  simply  takes  the 
risk  of  an  ability  to  show  that  the  title  so  acquired  is  in  fact  supe- 
rior to  that  of  the  covenantor.26  The  burden  is  on  him  to  show 
that  fact.27  A  few  early  cases  in  New  York  and  elsewhere  decide 
that  the  covenant  of  warranty  is  broken  only  by  an  actual  eviction, 
and  that  the  purchase  of  an  outstanding  superior  title,  or  a  sur- 
render to  the  holder  thereof,  is  insufficient  to  establish  an  evic- 
tion;28 but  the  rule  as  stated  prevails  now,  it  is  believed,  in  that 
State ; 29  and  generally  throughout  the  entire  country.  If  a  lessee 
under  a  defective  title  is  disturbed  by  a  party  having  a  paramount 
title,  he  will  not  be  restrained  by  his  lease  from  purchasing  the 
paramount  title  without  the  consent  of  his  lessor,  though  he  has 
not  been  evicted  or  ousted  from  the  possession.  The  rule  that 
a  tenant  cannot  deny  the  title  of  his  landlord  has  no  application  to 

23Kimball  v.  Saguin,  (Iowa)  53  1ST.  W.  Rep.  116.  Brawley  v.  Copelin,  106 
Ark.  256;  153  S.  W.  101. 

28Rawle  Covts.  for  Title  (5th  ed.),  §  146.  Turner  v.  Goodrich,  5  Deane 
(Vt.),  709.  Walker  v.  Deane,  79  Mo.  664.  Kramer  v.  Carter,  136  Mass.  504. 

"Copwood  v.  McCandless,  99  Miss.  364;  54  So.  1007. 

28Waldron  v.  McCarty,  3  Johns.  (N.  Y.)  471;  Kerr  v.  Shaw,  13  Johns. 
(N.  Y.)  236;  Kinney  v.  McCulloch,  1  Sandf.  Ch.  (N.  Y.)  370;  Cowdrey  v. 
Coit,  44  N.  Y.  382;  4  Am.  Rep.  690.  Shelton  v.  Pease,  10  Mo.  482;  Caldwell 
v.  Bower,  17  Mb.  564.  Hannah  v.  Henderson,  4  Ind.  174;  Reasoner  v. 
Edmundson,  5  Ind.  393. 

29  Beyer  v.  S«hulze,  54  N".  Y.  Super.  Ct.  212;  Petrie  v.  Folz,  54  N.  Y.  Super. 
Ct.  223;  Bordewell  v.  Colie,  1  Lans.  (N.  Y.)  146.  Wright  v.  Phipps,  90  Fed. 
556.  Rawle  Covts.  (5th  ed.),  §  144,  note.  In  Mississippi  a  covenantee  who 
buys  in  an  outstanding  paramount  title  cannot  have  an  action  for  breach  of 
the  covenant  of  warranty;  there  must  have  been  an  actual  dispossession, 
either  by  actual  eviction  or  surrender  of  the  possession.  But  lie  can  recover 
from  the  covenantee  in  assumpsit  the  money  so  expended  in  perfecting  the 
title,  or  have  a  decree  in  equity  against  the  vendor  for  reimbursement,  either 
of  which  accomplishes  precisely  the  same  purpose  as  an  action  for  breach  of 
the  covenant  of  warranty.  Wilty  v.  Hightower,  12  Sm.  &  M.  (Miss.)  478; 
Dennis  v.  Heath,  11  Sm.  &  M.  206;  Burruss  v.  Wilkinson,  31  Miss.  537;  Kirk- 
patrick  v.  Miller,  50  Miss.  521;  Dyer  v.  Britton,  53  Miss.  270;  Green  v. 
Irving,  54  Miss.  450;  28  Am.  Rep.  360. 


MARKETABLE    TITLE    TO    HKAL    ESTATE. 

such  a  ease.30  It  is  not  necessary  for  the  covenantee  to  show  that 
he  has  actually  paid  the  price  of  the  outstanding  title.  It  is 
sufficient  if  an  obligation  to  pay,  and  the  time  and  manner  in 
which  payment  is  to  he  made,  appear.31  It  has  been  held,  however, 
that  the  purchase  of  the  outstanding  title  must  have  been  made 
in  the  interest  of  the  grantee,  and  against  the  interest  of  the 
grantor,  for  the  purpose  of  extinguishing  the  title  theretofore  held 
by  the  grantee,  and  for  the  purpose  of  asserting  the  new  title  thus 
acquired  against  the  grantor.82 

The  discharge  of  a  prior  incumbrance  in  order  to  prevent  an 
inevitable  eviction,  is  also  a  constructive  breach  of  the  covenant  of 
warranty.33  This  covenant  is  broken  by  lawful  eviction,  whether 

"Oeorge  v.  Putney,  4  Cush.  (Mass.)  355;  50  Am.  Dec.  788;  Greeno  y. 
Munson,  9  Vt.  37;  31  Am.  Dec.  605.  Chambers  v.  Pleak,  6  Dana  (Ky.),  429; 
32  Am.  Dec.  78;  Lunsford  v.  Turner,  5  J.  J.  Marsh.  (Ky.)  104;  20  Am.  Dec. 
248.  Jackson  v.  MeAuley.  13  Wash.  298;  43  Pae.  Rep.  41. 

"Hooper  v.  Sac  Co.  Bank,  72  Iowa,  280;  33  X.  W.  Rep.  081;  Rover  v. 
Foster,  62  Iowa,  322:  17  X.  W.  Rep.  516. 

"Wright  v.  Phipps,  90  Fed.  Rep.  556,  the  court  saying:  if  it  appear  that 
grantee  and  grantor  have  defended  against  the  claim  of  a  third  person  to  the 
land;  that  they  have,  through  several  years,  co-operated  to  settle  such  claim; 
that  they  have  agreed  to  share  in  the  expense  thereof,  and  do  so  share;  and 
pursuant  thereto  a  release  of  the  outstanding  title  is  made  to  the  grantee, 
upon  the  payment  of  a  sum  bearing  a  slight  relation  to  the  value  of  the  land 
by  the  grantee  and  grantor;  it  must  be  concluded  that  the  release  was 
obtained  and  taken  by  amicable  arrangement,  for  the  purpose  of  protecting 
the  existing  interests  of  the  grantor  as  well  as  those  of  the  grantee. 

"Kstabrook  v.  Smith,  6  Gray  (Maas.),  557;  66  Am.  Dec.  443;  Whitney  v. 
Densmore,  6  Cush.  (MJws.)  128  Bernis  v.  Smith,  10  Met.  (Mann.)  194. 
Collier  v.  Cowger,  52  Ark.  322;  12  S.  W.  Rep.  702.  Stipe  v.  Stipe,  2  Head 
(Tenn.),  171;  Kinney  v.  Norton,  10  Heink.  (Tenn.)  388.  Brown  v.  Dicken- 
Hon,  12  Pa.  St.  372,  disapproving  Waldron  v.  McCarty,  3  Johns.  (N.  Y.)  471. 
Stewart  v.  Drake,  4  HalsL  (X.  J.  L.)  139.  Cole  v.  Lee,  30  Me.  392;  Kelly 
v.  Lowe,  18  Me.  244.  McLean  v.  Webster,  (Kans.)  26  Pac.  Rep.  10.  Brown 
v.  Thompson,  81  S.  C.  380;  62  S.  K.  440;  Dignan  v.  West,  71  W.  Va.  29<t; 
76  S.  K.  561;  Ttikey  v.  Foster,  158  Iowa  311;  138  X.  W.  862.  Where  an 
incumbrance  has  ripened  into  an  eviction  and  worked  a  breac'i  of  the  cove- 
nant of  warranty,  the  liability  upon  that  covenant  and  the  covenant  against 
incumbrances,  is  substantially  identical ;  the  damages  recovered  under  either 
are  for  the  eviction.  Kramer  v.  Carter.  136  Mass.  504;  Harrington  v. 
Murphy,  109  Mass.  299.  In  Kelly  v.  Lowe.  18  Me.  244,  it  was  held  that 
the  covenantee  might  recover  the  amount  paid  by  him  to  remove  an  incmn- 
brance,  under  which  he  was  liable  to  be  evicted,  though  the  payment  waw  not 
made  until  after  his  suit  on  the  warranty  was  begun.  The  covenantee  may 
pay  off  a  judgment  binding  the  land,  and  hold  the  same  «*  a  set-off  against 


COVENANTS  OF   WABKANTY  A.ND  FOB  QUIET   EXJOYMEAT.       405 

under  an  incumbrance  or  a  paramount  title,  and  the  discharge  of 
the  incumbrance  to  prevent  eviction,  is  as  much  a  constructive 
eviction  as  a  purchase  of  the  outstanding  title  for  the  same  pur- 
pose.34 The  covenantor  will  not,  in  an  action  on  the  warranty,  be 
permitted  to  show  that  the  purchaser  agreed,  by  parol,  to  take  sub- 
ject to  the  incumbrance.  The  rule  permitting  the  true  considera- 
tion of  a  deed  to  be  shown  does  not  extend  thus  far.35 

The  purchase  of  an  outstanding  tax-title  will  not  entitle  the 
grantee  to  recover  on  a  covenant  of  warranty  or  a  covenant  of 
seisin,  if  the  tax-title  be  incapable  of  enforcement  against  the  land. 
The  mere  fact  that  the  tax-title  creates  a  cloud  upon  the  title  of 
the  covenantee  affecting  the  market  or  loan  value  of  the  land,  is  no 
ground  on  which  he  can  recover.36 

§  151.  Hostile  assertion  of  adverse  claim.  We  have  seen  that 
a  surrender  of  the  premises  to  an  adverse  claimant  will  not  amount 
to  a  constructive  eviction  unless  the  adverse  claim  has  been  hos- 
tilely  asserted.  The  same  rule  applies  to  a  purchase  of  the  out- 
standing title.  The  covenantee  cannot  search  out  adverse  claims 
to  the  land  and  buy  them  up  in  order  to  acquire  a  right  of  action 
against  the  covenantor.  Some  particular  act  by  which  the  cove- 
nantee is  disturbed  must  be  shown.  If  he  voluntarily  buys  an 
adverse  claim  or  discharges  an  incumbrance,  without  previous 
demand  upon  him  having  been  made,  he  cannot  recover  as  for  a 

the  purchase  money,  though,  at  the  time  of  such  payment,  an  execution  had 
been  issued  on  the  judgment,  and  levied  on  other  lands  subject  to  the  lien. 
Dunkleburger  v.  Whitehall,  70  Ind.  214. 

"Bricker  v.  Bricker,  11  Ohio  St.  240.  Martin  v.  Atkinson,  7  Ga.  228;  50 
Am.  Dec.  403.  Warren  v.  Stoddart  (Idaho),  59  Pac.  Rep.  540.  The  proposi- 
tion in  the  text  seems  clearly  supported  by  the  weight  of  authority  in  the 
United  States.  'But  in  New  York  it  has  been  held  that  the  redemption  of  land 
by  the  covenantee  from  a  tax  sale,  in  order  to  prevent  consummation  of  title 
in  the  purchaser  at  the  tax  sale,  did  not  amount  to  an  eviction,  and  that  the 
covenantee  could  not  recover  back  the  money  so  paid,  either  in  covenant  or  in 
assumpsit  for  money  paid  to  the  grantor's  use.  McCoy  v.  Lord,  19  Barb. 
(N.  Y.)  18. 

15  Sever  v.  North,  107  Ind.  545;  8  N.  E.  Rep.  576.  Beach  v.  Packard,  10  Vt. 
96;  33  Am.  Dec.  185. 

MBruington  v.  Barber,  (Kan.)  64  Pac.  Rep.  963,  where  the  tax-title  bought 
in  by  the  grantee,  having  been  on  record  for  two  years,  could  not  be  enforced 
against  the  land  (Gen.  Stats.  Kans.,  1899,  ch.  80). 


406  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

breach  of  warranty.37  But  practically  this  rule  is  of  little 
importance  if  the  deed  contains  also  a  covenant  of  seisin,  for  this 
covenant  is  absolutely 'broken  as  soon  as  made  if  the  title  be  out- 
standing; and  in  an  action  for  the  breach  the  purchaser  is  entitled 
to  recover  as  substantial  damages,  the  amount  paid  by  him  to  get 
in  the  outstanding  title.38  So  also  where  the  deed  contains  a  cove- 
nant against  incumbrances,  and  the  covenantee  discharges  or  buys 
in  an  incumbrance  on  the  estate.39 

The  burden,  of  course,  devolves  upon  the  covenantee  to  show,  in 
an  action  on  the  warranty,  that  the  title  thus  purchased  in,  was  par- 
amount to  that  of  the  covenantor,40  unless  the  purchase  was  made 

"Rawle  Covts.  (5th  ed.),  §§  55,  ISO.  Sprague  v.  Baker,  17  Mass.  586,  590. 
Musgrove  v.  Cordova  Imp.  Co.,  191  Ala.  419;  67  So.  582;  Githens  v.  Barthill, 
(Mo.  App.)  184  S.  W.  145;  Sievert  v.  Underwood,  58  Tex.  Civ.  App.  421; 
124  S.  W.  721.  The  cancellation  of  a  homestead  entry  made  by  one  under 
whom  the  covenantor  claims,  is  a  hostile  assertion  of  title  to  the  premises 
by  the  United  States.  Efta  v.  Swanson,  115  Minn.  373;  132  N.  W.  335.  The 
voluntary  payment  of  taxes  by  the  covenantee  assessed  upon  the  warranted 
land  at  the  time  of  the  conveyance,  before  any  attempt  is  made  to  collect 
the  same,  does  not  operate  a  breach  of  the  covenant  of  warranty.  Leddy  v. 
Enos,  (Wash.)  33  Pac.  Rep.  508.  McGary  v.  Hastings,  39  Cal.  360;  2  Am. 
Rpp.  456.  Morgan  v.  Hannibal  &  St.  J.  R.  Co.,  63  Mo.  129.  Turner  v.  Good- 
rii-li.  -20  Vt.  708.  In  Coble  v.  WiHl>orn,  2  Dev.  L.  (X.  C.)  390,  this  rule 
was  carried  to  its  furthest  extent.  Judgment  in  ejectment  had  been  recovered 
against  the  covenantee,  and  before  the  issuing  of  a  writ  of  possession,  or  any 
actual  disturbance  of  the  possession,  he  purchased  the  rights  of  the  plaint  ill" 
in  ejectment,  and  it  was  held  that  this  constituted  no  breach  of  the  covenant 
of  warranty. 

"Ante,  "Covenant  of  Seisin,"  §  116.  Anderson  v.  Knox,  20  Ala.  161. 
Rawle  Covts.  (5th  ed.),  §  192. 

"Id.     Ante,  «  130. 

*•  Beyer  v.  Schulze,  54  N.  Y.  Super.  Ct.  212.  Richards  v.  Iowa  Homestead 
Co.,  44  Iowa,  304;  Thomas  v.  Stickle,  32  Iowa,  76.  Turner  v.  Goodrich,  26 
Vt.  708.  Davenport  v.  Bartlett,  9  Ala,  187.  Sprague  v.  Baker,  17  Mass.  586. 
Funnan  v.  Klmore,  2  Xott  i  McC.  (S.  C.)  1S9.  Allen  v.  Miller,  09  Miss.  7.V. 
54  So.  731.  In  Lane  v.  Fury.  31  Ohio  St.  574.  the  covenantee  was  compelled 
to  proceed  in  equity  to  obtain  a  decree  correcting  a  defective  acknowledgment 
of  a  c<mvc\  iiiu -e  by  a  married  woman  under  whom  the  covenantor  held.  Sin-h 
a  decree  was  rendered,  and  judgment  waa  also  rendered  in  favor  of  the  cove- 
nantee in  ejectment  against  her  by  the  heirs  of  the  woman  who  had  executed 
the  defective  deed.  ThcM-  facts  were  held  sufficient  to  show  :i  breach  of  the 
•  juiiit  <>f  warranty.  The  proceeding  to  reform  the  defective  deed  un- 
treated as  in  substance  a  purchase  or  getting  in  of  the  outstanding  title. 
This  case  stands  upon  nawow  ground*.  The  covenant  of  warranty  is  against 
lawful  claima  only,  and  judgment  having  been  rendered  both  at  law  and 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       407 

after  judgment  against  the  covenantee  in  ejectment,  or  other  pos- 
sessory action,  which  the  covenantor  was  requested  to  defend.41 

The  measure  of  damages  which  the  purchaser  may  recover  where 
he  buys  in  the  outstanding  title  is  hereafter  considered.42 

§  152.  Loss  of  incorporeal  hereditament.  Adverse  easements. 
The  covenant  of  warranty  extends  to  and  embraces  not  only  the 
granted  premises  themselves,  but  all  rights,  easements  and  incor- 
poreal hereditaments  incident  or  appurtenant  thereto,  so  that 
if  the  covenantee  be  deprived  of  any  of  these  by  one  having  law- 
ful right,  the  covenant  is  broken,  and  a  right  of  action  accrues. 
The  early  case  of  Mitchell  v.  Warner  43  decided  that  the  covenant 
of  warranty  was  not  broken  by  the  loss  of  an  easement  appurte- 
nant to  the  premises,  but  this  decision  has  been  frequently  over- 
ruled, expressly  or  substantially,  and  the  rule  just  stated  may  be 
regarded  as  established  by  the  weight  of  authority  in  America.44 
If,  however,  at  the  time  of  the  grant  there  is  an  apparent  easement 
over  adjoining  lands  belonging  to  another,  not  necessarily  attached 
as  an  appurtenance  to  the  land  conveyed,  and  the  grantor  has  no 
right  or  title  to  such  easement,  an  interruption  of  the  use  thereof 
by  the  adjoining  owner  does  not  make  the  grantor  liable  for  dam- 
ages under  covenants  of  warranty  and  quiet  enjoyment,  although 

equity  against  the  heirs  of  the  married  woman  seeking  to  take  advantage 
of  the  defective  acknowledgment  of  her  deed,  it  is  difficult  to  perceive  an 
eviction,  actual  or  constructive,  by  any  one  having  a  lawful  claim. 

41  Post,  §  177. 

43  Post,  this  chapter,  §  168. 

41 5  Conn.  497. 

"Rawle  Covts.  (5th  ed.)  §  152,  n.  Wilson  v.  Cochran,  46  Pa.  St.  233. 
Kramer  v.  Carter,  136  Mass.  507.  Adams  v.  Con  over,  87  N.  Y.  422.  A  cove- 
nant for  quiet  enjoyment  in  a  deed  is  broken  where  an  adjoining  owner  raises 
a  dam  on  his  land  by  virtue  of  a  paramount  right,  to  a  height  that  causes 
the  warranted  lands  to  be  overflowed.  Scriver  v.  Smith,  100  N.  Y.  471;  53 
Am.  Rep.  224,  distinguishing  Green  v.  Collins,  86  N".  Y.  246;  40  Am.  Rep. 
531.  A  covenant  for  quiet  enjoyment  is  as  much  implied  in  the  lease  of  an 
incorporeal  right  as  in  the  lease  of  tangible  property.  Mayor  v.  Mabie,  3 
Kern.  (N.  Y.)  151.  A  perpetual  injunction  against  the  use  of  an  easement 
by  the  grantee  is  equivalent  to  an  eviction.  Scheible  v.  Slagle,  89  Ind.  323. 
The  use  and  enjoyment  of  the  full  width  of  a  street  upon  which  the  granted 
premises  abut  is  within  a  covenant  for  quiet  and  peaceable  enjoyment  of  the 
premises  and  their  appurtenances.  Moliter  v.  Sheldon,  37  Kans.  246;  15 
Pac.  Rep.  231. 


408  MARKETABLE    TITLE    TO    REAL    ESTATE. 

the  grant  was  "  with  appurtenances."  And  where  a  right  to  con- 
struct a  mill  race  across  a  lot  of  land  is  granted  with  warranty, 
the  warranty  is  not  broken  by  action  on  the  part  of  an  adjoining 
riparian  proprietor  that  deprives  the  grantee  of  the  right  to  flow 
water  through  the  race.4* 

The  covenants  of  warranty  and  for  quiet  enjoyment  will  also  be 
broken  if  a  stranger  establish  a  right  to  an  easement  in  the  war- 
ranted premises.47  Actual  expulsion  of  the  grantee  from  the  whole 
and  every  part  of  the  land  is  not  essential  to  a  breach  of  these  cove- 
nants; it  is  sufficient  if  there  is  a  disturbance  of  the  free  and 
uninterrupted  use  of  the  land  by  one  having  paramount  title.48  It 
is  true  that  the  existence  of  an  adverse  easement  in  the  granted 
premises  is  a  breach  of  the  covenant  against  incumbrances,  but  it  is 
equally  a  breach  of  the  covenants  of  warranty  and  for  quiet  enjoy- 
ment.49 Notice  of  the  existence  of  the  easement  at  the  time  of  the 

•Green  v.  Collins,  96  N.  Y.  246;  40  Am.  Rep.  531.' 

*  Griswold  v.  Allen,  22  Conn.  89.  As  to  whether  a  covenant  of  warranty  is 
broken  by  the  absence  of  a  right  in  the  grantee  of  a  mill  dam  to  flow  land 
adjacent  to  the  dam,  see  Swasey  v.  Brooks,  30  Vt.  692. 

41  Giles  v.  Dugro,  1  Duer  (X.  Y.),  234;  Scriver  v.  Smith,  100  N.  Y.  471; 
53  Am.  Rep.  224.  Russ  v.  Steele,  40  Vt.  310;  Clark  v.  Conroe,  38  Vt.  469. 
Haynes  v.  Young,  36  Me.  557;  Lamb  v.  Danforth,  59  Me.  322;  8  Am.  Rep. 
426.  The  existence  and  use  of  a  private  right  of  way  over  the  granted  prem- 
ises is  a  breach  of  the  covenant  of  warranty.  Rea  v.  Mlnkler.  5  Lans. 
(N.  Y.)  196.  Browning  v.  Canal  Co.,  13  La.  Ann.  541.  Russ  v.  Steole,  40 
Vt.  310;  Clark  v.  Conroe,  38  Vt.  469.  Butt  v.  Riffe,  78  Ky.  353.  The  cove- 
nant for  quiet  enjoyment  embraces  an  adverse  claim  to  (he  use  of  the  water 
of  a  stream  on  the  warranted  premises.  Peters  v.  Grubb,  21  Pa.  St.  455. 
The  covenant  of  warranty  is  not  broken  by  the  existence  of  a  right  in  an 
adjoining  proprietor  to  draw  water  through  underground  pipes  from  a  spring 
on  the  warranted  premises.  McMullan  v.  Wooley,  2  Lans.  (N.  Y.)  395. 

«Rea  v.  Minkler,  5  Lans.   (N.  Y.)    196. 

•Runs  v.  Steele,  40  Vt.  310.  Scott  v.  Tanner,  (Mo.  App.)  20S  S.  \V.  264. 
In  Kramer  v.  Carter,  136  Mass.  604,  the  breach  of  the  covenant  of  warranty 
complained  of  was  the  existence  of  a  building  rr-triction  in  a  deed  under 
which  tlic  plaintiff's  grantor  hold,  by  which  the  plaintiff  was  deprived  of  the 
full  and  complete  enjoyment  of  the  premises.  Thin  was  held  a  breach  of  the 
i  (>\  man)  i  if  warranty  if  enforced,  the  court  saying:  "But  the  cn-rninit  was 
not  only  an  inciimbrance  which  worked  a  present  breach  of  the  covenant 
against  incumbrances:  it  was  also  a  paramount  right,  which  might  work  a 
breach  of  the  covenant  of  warranty.  It  \\ii-  an  incorporeal  hereditament,  a 
j..iii  <.r  .UK!  taken  out  of  the  warranted  premises,  and  annexed  and  appurtenant 
to  adjoining  lands,  and  forming  a  part  of  the  estate  in  them.  The  covenant 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET  ENJOYMENT.       409 

conveyance  does  not  affect  the  right  of  the  covenantee  to  recover 
for  the  breach.50 

The  warranty  does  not  extend  to  a  right  to  take  water  from  an 
irrigating  ditch  or  canal,  unless  the  right  is  appurtenant  to  the 
land.  If  the  right  is  not  described  in  the  deed  as  appurtenant 
to  the  land,  parol  evidence  is  admissible  to  determine  the  question. 
It  is  not  so  appurtenant  where  the  water  rights  are  represented 
by  shares  in  an  irrigation  company  which  may  be  sold  and  trans- 
ferred independently  of  the  land,  no  share  of  stock  representing 
any  one  particular  part  of  the  land.51 

§  153.  COVENANTS  OF  WARRANTY  AND  QUIET  ENJOYMENT 
BUN  WITH  THE  LAND.  General  rule.  The  covenants  of  war- 
ranty and  for  quiet  enjoyment 52  are  prospective  in  their  operation 
and  run  with  the  land  until  they  are  broken;  that  is,  they  enure 
to  the  benefit  of  the  last  purchaser  of  the  land,  upon  his  eviction, 
actual  or  constructive,  by  one  claiming  under  an  adverse  title.53 

of  warranty  extends  to  such  a  right,  and  the  right  may  be  so  exercised  as  to 
work  a  breach  of  the  covenant.  *  *  if  the  plaintiff  had  erected  a  build- 

ing upon  the  land  which  is  subject  to  the  restriction,  and  the  owners  of  the 
adjoining  tenements  had  lawfully  demolished  it,  it  would  have  been  an 
eviction,  and  equally  so  whether  done  by  an  act  in  pais,  or  by  action  at  law, 
or  by  a  suit  in  equity." 

"•Rea  v.  Minkler,  5  Lans.  (N.  Y.)   196. 

"George  v.  Robison   (Utah),  63  Pac.  Rep.  810. 

52  The  covenant  for  quiet  enjoyment,  as  a  covenant  running  with  the  land, 
is  subject  to  the  same  construction  as  the  covenant  of  warranty.  Henry  v. 
McEntyre,  1  Hawk.  (N.  C.) ,  410.  Hence,  whenever  the  latter  covenant  is 
spoken  of  in  that  respect  in  the  following  pages,  it  is  to  be  understood  that 
the  covenant  for  quiet  enjoyment  is  also  intended. 

C3Co.  Litt.  (Thomas'  ed.)  381  n.;  4  Kent  Com.  459;  Platt  on  Covts.  304; 
Rawle  Covt.  §  213;  3  Washb.  Real  Prop.  (3d  ed.)  399.  Beddoe  v.  Wadsworth, 
21  Wend.  (N.  Y.)  120;  Ford  v.  Walworth,  19  Wend.  (N.  Y.)  334;  Cunning- 
ham v.  Knight,  1  Barb.  (X.  Y.)  399;  Blydenburgh  v.  Cotheal,  1  Duer  (N.  Y.), 
1?6.  Carter  v.  Denman,  3  Zab.  (X.  J.  L.)  260.  Blackwell  v.  Atkinson,  14 
Cal.  470.  Brown  v.  Metz,  33  111.  339;  85  Am.  Dec.  277;  Crisfield  v.  Storr, 
36  Md.  129;  11  Am.  Rep.  480.  Butler  v.  Barnes,  21  Atl.  Rep.  419.  Shelton 
v.  Codman,  3  Cash.  (Mass.)  318;  Whitney  v.  Dinsmore,  6  Cush.  (Mass.)  128. 
Sw&sey  v.  Brooks,  30  Vt.  692.  Saunders  v.  Flaniken,  77  Tex.  664;  14  S.  W. 
Rep.  236;  Flaniken  v.  Xeal,  67  Tex.  629;  4  S.  W.  Rep.  212.  Rutherford  v. 
Montgomery,  14  Tex.  Civ.  App.  319;  37  S.  W.  Rep.  625.  Meade  v.  Boone 
(Tex.  Civ.  App.),  35  S.  W.  Rep.  483.  Tucker  v.  McArthur,  103  Ga.  409;  30 
S.  E.  Rep.  2S3.  McConaughey  v.  Bennett,  50  W.  Va.  172;  40  S.  E.  Rep.  540. 

52 


410  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

Hence,  a  purchaser  is  not  only  protected  by  the  covenants  of  his 
immediate  grantor,  but,  in  case  he  loses  the  estate,  may  look  for  his 
indemnity  to  the  covenants  of  those  tinder  whom  his  grantor 
claims,54  and  this,  though  the  covenant  of  the  remote  grantor  does 
not  in  terms  warrant  the  title  to  the  "  assigns  "  of  the  covenantee.55 

After  breach  the  covenant  can  no  longer  run  with  the  land, 
nor  have  any  existence  except  for  the  purpose  of  supporting  an 
action  for  damages  on  the  part  of  the  person  having  the  right  of 
action  at  the  time  of  the  breach.5* 

The  covenants  in  a  void  deed,  for  example,  that  of  a  married 
woman  who  was  not  examined  privily  and  apart  from  her  husband, 
do  not  enure  to  the  benefit  of  a  remote  grantee ;  a  void  conveyance 
cannot  operate  as  an  assignment.57 

If  the  grantor  holds  under  a  conveyance  from  a  minor,  his  cove- 
nant of  warranty  is  not  broken  when  made  by  reason  of  the  fact 

Wesco  v.  Kern  (Oreg.),  59  Pao.  Rep.  548.  Libby  v.  Hutchinson,  72  N.  H. 
190;  55  All.  547.  Mitchell  v.  Warner,  5  Conn.  497.  Scoffm  v.  Grandstaff, 
12  Kans.  365.  .Susqueliannn  Coal  Co.  v.  Quick,  61  Pa.  St.  339.  Williams 
v.  Beeman,  2  Dev.  (X.  C.)  483.  Xunnally  v.  White,  3  Met.  (Ky.)  584.  Aaher 
Lumber  Co.  v.  Cornett,  23  Ky.  L.  Rep.  602;  63  S.  W.  Rep.  974.  Tn  a  State 
in  which  conveyances  by  persons  out  of  possession  are  held  valid,  such  a 
deed  has  'been  held  sufficient  as  an  assignment  of  the  grantor's  right  of 
action  on  a  warranty  in  a  deed  under  which  he  claimed  title.  Allen  v. 
Kennedy,  91  Mo,  324;  2  S.  W.  Rep.  142. 

Recent  Cases.  Kuntzman  v.  Smith,  77  X.  J.  Eq.  30;  75  Atl.  1009; 
Tanzer  v.  Bankers  &c.  Corp.  144  X.  Y.  Supp.  613;  159  App.  Div.  351; 
Jacobs  v.  Fowler,  119  X.  Y.  Supp.  647;  135  App.  Div.  713;  Simonds  v. 
Diamond  Mate-It  Co.,  159  Mich.  241;  123  X.  W.  1132;  Thompson  v.  Richmond, 
102  Me.  335;  63  Atl.  649;  Williams  v.  O'Donnell,  225  Pa.  321;  74  Atl.  205; 
26  L.  R.  A.  (X.  S.)  1094;  Quick  v.  Walker,  125  Mo.  App.  257;  102  S.  W. 
33;  Staed  v.  Roasier,  157  Mo.  App.  300;  137  S.  W.  901;  Snadon  v.  Salmon, 
135  Ky.  47;  121  S.  W.  970;  Arnold  v.  Joines,  50  Okl.  4;  150  Par.  130; 
Newman  v.  Sevier,  134  111.  App.  544.  In  Crawford  Co.  Bank  v.  Baker,  95 
Ark.  438;  130  S.  W.  556,  it  is  said  that  a  covenant  of  warranty  does  not 
run  .with  the  land.  What  was  meant,  apparently,  was  that  a  covenant  of 
-i'i-in.  implied  in  a  warranty  deed,  does  not  run  with  the  land.  See 
Arkansas  cases  cited  ante,  |  111. 

MCo.  Litt.  384a;  2  Sugd.  Vend.  (8th  Am.  ed.)  196,  237.  Beaaeley  r.  Phil- 
lips, 20  Ind.  App.  182;  50  X.  E.  488. 

"Wiggins  v.  Pender,   132  N.  C.  628;  44  X.  E.  Rep.  362. 

••  MoConaughey  v.  Bennett,  50  W.  Va.  172;  40  8.  E.  Rep.  640.  De  Long 
v.  Improvement  Co.,  74  N.  J.  I..  250;  66  Atl.  591. 

"Smith  v.  Ingram,  132  X.  C.  959;  44  S.  E.  Rep.  643;  61  L.  R,  A.  878. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       411 

that  the  minor  may  disaffirm  the  deed  on  reaching  his  majority. 
The  deed  being  valid  unless  disaffirmed  within  the  time  allowed 
by  law,  the  covenant  of  warranty  is  not  broken  until  the  disaffirm- 
ance  of  the  deed  and  eviction  of  the  covenantee,  or  his  assignee. 
Hence,  the  covenant  enures  to  the  benefit  of  a  remote  grantee.58 

The  covenant  is  inseparable  from  the  land  with  respect  to  which 
it  is  made,  and  passes  to  the  grantee  of  the  covenantee  as  incident 
to  the  land,  and  not  by  way  of  assignment  separate  and  distinct 
from  the  conveyance.59  Hence,  the  benefit  of  the  covenant  cannot 
be  assigned  separate  and  apart  from  the  land ;  that  is,  to  a  person 
not  a  grantee  or  transferee  of  the  land.60 

The  rule  that  a  covenant  does  not  run  with  the  land  after  a 
breach  has  occurred  does  not  apply  in  the  case  of  an  assignee  for 
whose  benefit  the  land  was  purchased  by  the  covenantee,  and  to 
whom  it  was  subsequently  conveyed  by  the  latter.  In  such  a  case 
the  covenantee  is  a  mere  trustee  to  receive  and  hold  the  title  and 
the  covenants  for  the  use  of  the  true  owner.61  As  a  general  rule, 
however,  it  seems  that  a  mere  equitable  owner  of  the  premises, 
such  as  one  who  has  paid  the  purchase  money,  but  has  not  received 
a  conveyance,  is  not  entitled  at  law  to  the  benefit  of  covenants  that 
run  with  the  land.62 

§  154.  Assignee  may  sue  in  his  own  name.  The  rights  of  an 
assignee  of  covenants  running  with  the  land  are  cognizable  in  a 
court  of  law  by  reason  of  the  privity  of  estate  existing  between 
him  and  the  covenantor.  He  may,  therefore,  bring  an  action  in 
his  own  name  to  recover  damages  for  a  breach  of  the  covenant.63 
This,  in  fact,  seems  to  be  the  only  substantial  difference  between 
the  rights  of  assignees  of  the  covenant  of  warranty  and  that  of 
seisin  in  those  States  in  which  it  is  held  that  the  latter  covenant 
does  not  run  with  the  land ;  for  there  seems  to  be  no  doubt  of  the 

Tritchett  v.  Redick,  62  Neb.  296;  86  N".  W.  Rep.  1091. 

59  McConaughey  v.  Bennett,  50  W.  Va.  172;  44  S.  E.  Rep.  540. 

'"Ravenel  v.  Ingram,  131  1ST.  C.  549;  42  S.  E.  Rep.  967. 

81  Hall  v.  Plaine,  14  Ohio  St.  417.     Harper  v.  Perry,  2-8  Iowa,  57. 

MDart  on  Vendors  (5th  ed.),  780.  As  to  rights  of  a  mortgagee,  see  post, 
§  160. 

"Suydam  v.  Jones,  10  Wend.  (N.  Y.)  181;  25  Am.  Dec.  552.  McConaughey 
v.  Bennett,  50  W.  Va.  172;  40  S.  E.  Rep.  540;  where  held,  also,  that  the 
assignee  could  not  sue  in  a  court  of  equity. 


412  MARKETABLE    TITLE    TO    REAL    ESTATE. 

right  of  one  who  has  been  evicted  by  paramount  title  to  maintain 
an  action  in  the  name  of  his  grantee  on  a  covenant  of  seisin  con- 
tained in  a  conveyance  by  the  latter.*4 

§  155.  Actions  against  original  covenantor.  If  the  estate 
warranted  be  subdivided  and  pass  into  the  hands  of  separate 
grantees,  any  one  of  the  latter,  or  his  remote  assignee,  if  evicted, 
may  maintain  an  action  on  the  original  covenant  in  his  own  name. 
For  every  eviction  a  separate  cause  of  action  accrues  and  may  be 
enforced,  though  the  effect  be  to  subject  the  warrantor  to  numerous 
suits,  and  possibly  to  a  greater  liability  than  he  would  have 
incurred  if  he  had  been  sued  by  the  original  covenantee.65  Where 
a  covenant  running  with  the  land  is  divisible  in  its  nature,  if  the 
entire  interest  in  the  land  passes  by  assignment  to  separate  and 
distinct  individuals,  the  covenant  will  attach  to  each  parcel,  pro 
tanto.**  Whether  heirs  or  devisees  may  maintain  separate  actions 
on  a  covenant  of  warranty  has  been  made  a  question  in  a  case 
which  decides  that  they  may  maintain  a  joint  action  on  the  cove- 
nant.67 If  the  warranted  premises  be  subdivided  by  the  grantee, 
and  the  several  lots  conveyed  to  different  persons,  a  remote  grantee 
of  one  of  the  lots  may  maintain  an  action  on  the  covenant  of  the 
original  grantor  without  joining  the  vendees  of  the  other  lots.  In 
such  a  case  the  rights  of  the  plaintiff  are  not  affected  by  the  fact 
that  the  other  grantees  have  failed  to  sue,  or  have  suffered  their 
rights  of  action  to  become  barred  by  the  statute.88 

§  15G.  Release  of  covenant  by  immediate  covenantee.  While 
a  legal  devolution  of  the  title,  either  by  deed,  will  or  descent,  is 
necessary  to  give  to  the  owner  of  the  land  the  l>enefit  of  the  cove- 

"Ante,  5  110. 

•3  Com.  Dig.  262;  Dart  Vend.  (5th  ed.)  780;  2  Co.  Litt.  on  p.  309;  2 
Washl).  Real  Prop,  fifi'2.  ritiii^  2  Supd.  Vend.  (Hamm.  ed.)  508.  Dickinson 
v.  HoomeK.  8  Orat.  (Va.t  353.  Kane  v.  Sanp<-r,  14  Johns.  (N.  Y.)  94. 
al»o,  Dougherty  v.  Duval.  !>  P>.  MOM.  (Ky.>  57.  Field  v.  Squire*.  Dni.ly 
(U.  S ...  :ii!fi.  S,-li..tieM  v.  Homestead"  Co.,  M2  Iowa.  :U7.  Contra,  3  Prest. 
Al-t.  ..7.  P.-rkins  v.  Hadlcy,  4  Hayw.  (Tenn.)  14S.  McClure  v.  Gamble,  27 
Pa.  St.  288. 

"Co.  Litt.  3Sr,a:  Tniii-h.  109.  Astor  v.  Miller,  2  Paige  (N.  Y.),  78;  Van 
Home  v.  CV.iin.  1  1'afce  (X.  Y.).  455.  Allen  v.  Little.  3fi  Mo.  170. 

•:  Paul  v.  Witman.  .'<  W.  A  8.  (Pa.)  407. 

"Whitnnan  v.  Hindi.  3  Pick.   (Tenn.)   513:    11  S.  \V.  Rep.  421. 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET  ENJOYMENT.       413 

nant  of  warranty,69  it  is  not  by  virtue  of  any  assignment  of  a 
right  of  action  that  the  subsequent  grantee  takes  the  place  of  the 
original  covenantee,  though  he  is  commonly  called  "  assignee," 
as  a  convenient  designation ;  for  until  a  breach  of  the  covenant  has 
occurred  there  is  no  right  of  action  and  nothing  to  be  assigned.  It 
is  because  he  takes  the  same  estate  and  stands  in  the  place  of  the 
original  covenantee,  by  means  of  which  a  privity  of  estate  is  cre- 
ated, that  he  is  entitled  to  an  action  against  the  original  cove- 
nantor.70 Hence,  it  follows  that  the  covenantee  cannot  separate 
the  covenant  from  the  land  by  assigning  the  benefit  thereof  with- 
out transferring  the  land ; 71  nor  can  he  release  the  covenantor 
from  liability  after  he  has  transferred  the  land ; 72  though  it  seems 
that  such  a  release  will  be  valid,  even  as  against  an  assignee,  if  exe- 
cuted by  the  covenantee  before  the  land  is  transferred.73  When 
the  covenantee  parts  with  the  land  he  loses  all  control  of  the 
covenants  that  run  with  it,  and  can  maintain  no  action  for  a 
breach  occurring  thereafter,  even  though  it  be  instituted  and  pur- 
sued for  the  benefit  of  the  transferee.74  unless  he  has  made  good 
the  breach  to  the  party  evicted.75 

•9Rawle  Covt.  §  213.  In  Beardsley  v.  Knight,  4  Vt.  471;  33  Am.  Dec.  193, 
it  was  held  that  possession  under  an  instrument  inoperative  as  a  deed  for 
want  of  a  sufficient  seal,  would  not  entitle  the  intended  grantee  to  the  benefit 
of  a  covenant  of  warranty  running  with  the  land. 

"Ante,  §§  110,  152.  4  Cruise's  Dig.  316;  4  Kent  Com.  472,  n.  It  is  not 
because  of  the  delivery  of  the  deed  that  the  subsequent  grantee  becomes 
entitled  to  the  benefit  of  the  covenant  which  it  contains.  It  is  bcause  he 
takes  the  estate  and  stands  in  the  place  of  his  vendor.  Hopkins  v.  Lane,  9 
Yerg.  (Tenn.)  84. 

71  Ely  v.  Hergesell,  46  Mich.  325.  Lewis  v.  Cook,  13  Lred.  L.  (N.  C.)  193. 
Lawrence  v.  Senter,  4  Sneed  (Tenn.)  52. 

78  Middlemore  v.  Goodale,  Cro.  Car.  503.  Suydam  v.  Jones,  10  Wend. 
(N.  Y.)  183;  25  Am.  Dec.  552.  Field  v.  Snell,  4  Cush.  (Mass.)  504.  Crocker 
v.  Jewell,  29  Me.  527;  Littleiield  v.  Getchell,  32  Me.  392.  Cooper  v.  Gran- 
berry,  33  Miss.  117.  Abby  v.  Goodrich,  3  Day  (Conn.),  433;  but  see  Clark 
v.  Johnson,  5  Day  (Conn.)  273.  After  the  covenantee  has  conveyed  the  land 
he  cannot  release  the  covenantor  until  he  has  paid  damages  to  the  party 
evicted,  thereby  satisfying  the  claims  of  the  latter  to  the  benefit  of  the 
covenant.  Brown  v.  Staples,  28  Me.  497;  48  Am.  Dec.  504.  Thompson  v. 
Shattuck,  2  Met.  (Mass.)  615.  Chase  v.  Weston,  12  N.  H.  413. 

71  Rawle  Covts.  for  Title,  §§  221,  223.     But  see  post,  §   162. 

"Griffin  v.  Fairbrother,  1  Fairf.   (Me.)   91;  Crooker  v.  Jewell,  29  Me.  527. 

"Post,  §  158. 


414  MARKETABLE    TITLE    TO    REAL    ESTATE. 

§  157.  Release  or  quit  claim  will  pass  benefit  of  covenants. 
The  right  of  a  subsequent  grantee  to  recover  on  the  warranty  of  a 
remote  grantor,  is,  of  course,  unaffected  by  the  fact  that  the 
immediate  conveyance  to  him,  or  any  intermediate  conveyance 
was  without  warranty,  since  a  mere  quit  claim  or  release  is  as 
effectual  to  pass  the  rights  of  the  original  covenantee  as  a  con- 
veyance with  unlimited  covenants  for  title.78  The  covenant  of 
warranty  attaches  to  and  passes  with  the  land  without  regard  to 
the  nature  of  the  conveyance  by  which  the  transfer  of  the  land  is 
effected.77  An  assignee  by  act  of  the  law,  such  as  one  holding 

'•Bac,  Abr.  Letter  X.:  1  Co.  Inst.  3S4b.  Spencer's  Case,  5  Coke,  17.  Cum- 
mins v.  Kennedy,  3  Litt.  (Ky.)  118,  122:  14  Am.  Dec.  45.  This  case  contains 
an  able  exposition  of  common-law  reasons  for  the  rule  stated  in  the  text. 
Young  v.  Triplett,  5  Litt.  (Ky.)  248;  Hobbs  v.  King.  2  Met.  (Ky.)  139; 
Hunt  v.  Orwig,  17  B.  Mon.  (Ky.)  84;  66  Am.  Dec.  144;  Thomas  v.  Bland 
(Ky.),  14  S.  W.  Rep.  955.  Brown  v.  Staples,  26  Me.  502;  48  Am.  Dec.  504. 
Beddoe  v.  Wadsworth,  21  Wend.  (N.  Y.)  120;  Andrews  v.  Wolcott,  16  Barb. 
(X.  Y.)  23;  Hunt  v.  Amidon,  4  Hill  (X.  Y.),  345;  40  Am.  Dec.  283;  Jenks 
v.  Quinn,  137  X.  Y.  223;  33  N.  E.  Rep.  376.  De  Chauraont  v.  Forsyth,  2 
Pa.  St.  514.  Gunter  v.  Williams,  40  Ala.  572.  Hopkins  v.  Lane,  9  Yerg. 
(Tenn.)  83.  Redwine  v.  Brown,  10  Ga,  319.  Hodges  v.  Saunders,  17  Pick. 
(Mass.)  470.  Scoffins  v.  Grandstaff,  12  Kans.  365.  Saunders  v.  Flanniken. 
77  Tex.  662;  14  S.  W.  Rep.  236.  Walton  v.  Campbell,  51  Xeb.  788;  71  X.  W. 
Rep.  737.  Troxell  v.  Stevens,  57  Xeb.  320  r  77  X.  W.  Rep.  781.  Ravenel  v. 
Ingram,  131  X.  C.  549;  42  S.  E.  Rep.  967.  Pence  v.  Rhonemus,  58  Ind.  App. 
268,  108  N.  E.  129;  Diggs  v.  Henson,  181  Mo.  App.  34,  163  S.  W.  565.  But 
where  A.,  B.  and  C.  conveyed  with  general  warranty  to  D.,  as  trustee,  with 
power  to  convey  with  covenant  only  against  his  own  acts,  and  D.  so  conveys, 
his  grantee  can  maintain  no  action  as  assignee  on  the  covenant  in  the  deed 
from  A.,  B.  and  C.  upon  eviction  under  a  paramount  title  derived  from  A., 
B.  and  C.  Abbott  v.  Hills  (Mass.),  33  N.  E.  Rep.  392.  The  proposition  in 
the  last  head  note  (prepared  by  the  court)  to  the  case  of  Beardsley  v.  Knight, 
4  Vt.  471,  that  a  subsequent  grantee  claiming  the  benefit  of  a  covenant  of 
warranty  running  with  the  land,  must  show  an  assignment  bit  deed  of  war- 
ranty, seems  an  obiter  dictum.  The  action  was  by  an  assignee  claiming  under 
a  quit-claim  deed,  and  the  case  wa.s  adjudged  against  him  on  the  ground  that 
he  did  not  show  or  claim  that  he  was  ever  in  possession  under  that  deed. 
The  point  that  he  was  not  entitled  to  mover  because  his  assignment  was 
by  deed  without  warranty,  does  not  appear  to  have  been  made. 

"Thus,  in  Hobbs  v.  King,  2* Met.  (Ky.)  139,  it  was  held  that  the  conveyance 
of  a  feme  covert,  incompetent  to  bind  herself  by  covenants  of  warranty,  was 
sufficient  to  pa«*s  to  her  grantee  the  benefit  of  covenants  contained  in  the  con- 
veyance to  her.  And  in  Taylor  v.  Lane,  18  Tex.  Civ.  App.  545,  it  wan  held 
that  a  deed  by  a  sheriff,  on  foreclosure  of  a  vendor's  lien,  passes  the  right 
to  recover  for  breach  of  a  covenant  of  warranty  or  a  covenant  against  in- 
cumbrance*. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       415 

under  the  deed  of  a  sheriff  or  a  commissioner  is  entitled  to  the 
benefit  of  covenants  held  by  the  person  last  seised.  In  fact  any 
person  to  whom  the  land  and  the  legal  title  thereto  passes,  whether 
by  descent,  devise  or  conveyance,  succeeds  to  all  the  rights  of 
the  covenantee,78  except  perhaps,  in  the  single  instance,  of  a 
purchaser  at  a  tax  sale.79  It  has  been  held  that  a  tax  deed  will 
not  pass  the  benefit  of  covenants  for  title,  and  the  covenantee's 
right  of  action  is  not  barred  by  his  having  permitted  the  land  to  be 
sold  for  taxes.80 

§  158.  Intermediate  covenantee  must  have  been  damnified. 
If  there  be  several  successive  grantees  of  the  land,  an  intermediate 
grantee  can  maintain  no  action  for  breach  of  the  covenant  unless 
he  has  been  damnified;  that  is,  unless  he  has  been  compelled  to 
satisfy  a  grantee  subsequent  to  himself  for  loss  of  the  land.81 
Hence,  it  follows  that  if  the  intermediate  grantee  conveyed  with- 
out warranty,  so  that  no  liability  could  devolve  upon  him  for  a 

78  Shep.  Touch,  ch.  7,  p.  572.    Appowel  v.  Mionnoux,  Moore's  Rep.  97.    White 
v.  Whitney,  31  Met.    (Mass.)    81.     Streaper  v.  Fisher,   1   Rawle    (Pa.)    155; 
Hurst  v.  Lithgrow,  2  Yeates    (Pa.),  24;    1  Am.  Dec.  326.     White  v.  Presly, 
54  Miss.  313.     Lewis  v.  Cook,   13  Ired.  L.   193.     William's  v.  Burg,  9  Lea 
(Term.),  455. 

79  Rawle  Covts.  (5th  ed.)  §  213.  Kingdon  v.  Nottle,  4  Maule  &  S.  53.  Smith 
v.  Perry,  26  Vt.  279. 

80  Bellows  v.  Litchfield,  83  Iowa,  36;  48  N.  W.  Rep.  1062;  Crum  v.  Cotting, 
22  Iowa,  411. 

81  Allen  v.  Little,  36  Me.  170;  Fairbrother  v.  Griffin,  to  Me.  96.     Thompson 
v.  Richmond,  102  Me.  335,  64  Atl.  649.    Baxter  v.  Ryerss,  13  Barb.   (N.  Y.) 
267.    Wheeler  v.  Sohier,  3  Gush.  (Mass.)  219,  disapproving  dicta  in  Bickford 
v.  Page,  2  Mass.  460,  and  Kane  v.  Sanger,  14  Johns.   (N.  Y.)   93.     Thompson 
v.  Sanders,  5  T.  B.  Mon.  (Ky.)  358;  Birney  v.  Hann,  3  A.  K.  Marsh.     (Ky.) 
322;   13  Am.  Dec.  167.     Hampton  v.  Pool,  28  Ga.  514.     Jones  v.  Richmond 
(Va.),  13  S.  E.  Rep.  414.     Clement  v.  Bank,  M.  Vt.  298;   17  Atl.  Rep.  717. 
Hammerslough  v.  Hackett,  48  Kans.  700;    29  Pac.  Rep.   1079.     A  palpable 
reason  why  an  intermediate  covenantee  who  has  not  been  damnified,  cannot 
sue  for  a  breach  of  the  covenant  of  warranty  is,  that  if  he  were  permitted 
to  do  so,  it  would  be  possible  for  him  to  speculate  in  the  misfortunes  of  the 
covenantor  without  himself  incurring  any  liability.     For  if  he  conveyed  with- 
out warranty  his  grantee  could  have  no  recourse  against  him  for  indemnity, 
though  he  might  himself  have  recovered  full  damages  from  the  covenantor. 
A  grantor  who  subsequently  reacquires  the  title  under  foreclosure  of  a  mort- 
gage which  it  was  his  duty  to  discharge,  cannot  avail  himself  of  the  title 
so  acquired  when  sued  on  his  warranty  by  the  grantee.     Crosby  v.  Evans 
(Mo.  App.),  195  S.  W.  514. 


416  MARKETABLE    TITLE    TO    REAL    ESTATE. 

subsequent  eviction  from  the  premises,  he  can  maintain  no  action 
against  the  original  covenantor  for  the  breach.8*  It  has  been  held 
that  the  acceptance  of  a  conveyance  with  warranty  deprived  the 
intermediate  covenantee  of  any  right  of  action  against  the  original 
covenantor,  and  confined  him  to  his  remedy  upon  the  immediate 
covenant  of  his  grantor.83  But  this  decision  has  been  overruled 
in  the  State  in  which  it  was  rendered,84  and  frequently  disap- 
proved in  others,85  and  the  rule  established  that  an  intermediate 
covenantee  who  has  been  compelled  to  make  good  the  loss  of  the 
premises  to  a  subsequent  grantee,  may  recover  against  the  original 
covenantor.86  In  order  to  be  "  damnified  "  it  is  not  necessary  that 

**Hunt  v.  Middles-worth,  44  Mich.  448.  Cai-es  cited  in  last  note,  and  Kane 
v.  Sanger,  14  Johns.  (N.  Y.)  89.  The  converse  of  this  proposition,  namely. 
that  if  the  covenantee  him/self  conveyed  with  warranty  he  would  be  entitled 
to  recover  against  the  covenantor  on  the  giound  that  he  (the  covenantee) 
was  liable  over  to  his  grantee,  was  decided  in  this  case.  It  has  been,  how- 
ever, disapproved  on  this  point.  See  cases  cited,  n.  85  below. 

"Kane  v.  Sanger,  14  Johns.  (N.  Y.)  89. 

"Withey  v.  Mumford,  5  Cow.  (N.  Y.)  137;  Suydam  v.  Jones,  It)  W.'ii.l. 
(X.  Y.)  1S4;  Preiss  v.  Poidevin,  19  Abb.  N.  Cas.  (N.  Y.)  123. 

"Williams  v.  Wetherbee,  1  Aik.  (Vt.)  233.  Wheeler  v.  Sohier,  3  Cush. 
(Mass.)  219.  Redwine  v.  Brown,  10  Ga.  319.  Hopkins  v.  Lane,  9  Yerg. 
(Tenn.)  79;  Lawrence  v.  Senter,  4  Sneed  (Tenn.),  52. 

••Cases  cited  supra,  n.  65  p.  412,  Garlock  v.  Cross,  5  Cow.  (N.  Y.)  143; 
Withey  v.  Mumford,  5  Cow.  (N.  Y.)  137.  Markland  v.  Crump,  1  Dev.  &  Bat. 
(N.  C.)  94;  27  Am.  Dec.  230.  Mayer  v.  Wooten,  46  Tex.  Civ.  App.  327,  102 
S.  W.  423.  In  Booth  v.  Starr,  1  Conn.  248;  6  Am.  Dec.  233,  a  leading  case 
on  thi-  point,  the  court  said:  "The  last  assignee  can  never  maintain  an 
action  on  the  covenant  of  warranty  till  he  has  been  evicted.  Though  the 
title  may  be  defective,  though  he  may  be  constantly  liable  to  be  evicted. 
though  his  warrantor  may  be  in  doubtful  circumstances,  yet  he  can  bring 
no  action  on  the  covenant  till  he  is  actually  evicted,  for  till  then  there 
has  been  no  breach  of  the  covenant,  no  damages  sustained.  By  a  parity  of 
reason  the  intermediate  covenantees  can  have  no  right  of  action  against  their 
K.venantors  till  something  has  been  done  equivalent  to  an  eviction,  f«ir  till 
then  they  have  sustained  no  damage.  As  the  last  assignee  has  the  election 
to  sue  all  or  any  of  the  covenantors,  as  a  recovery  and  satisfaction  by  an 
intermediate  covenantee  against  a  previous  covenantor  would  bar  a  suit  by  a 
Mihsequent  assignee,  such  intermediate  assignee  i«u<:ht  not  to  lu-  allowed  to 
sustain  his  action  till  he  has  satisfied  the  subsequent  assignee;  for  other- 
wine  every  intermediate  covenantee  might  sue  the  fir.-t  covenantor;  one  suit 
would  be  no  bar  to  another;  they  might  all  recover  judgment  and  obtain 
satisfaction,  no  that  a  man  might  be  liable  to  sundry  suits  for  the  same  thing, 
and  lie  compelled  to  pay  damages  to  sundry  different  covenantees  for  the 
name  breach  of  covenant." 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET  ENJOYMENT.       417 

a  judgment  shall  have  been  recovered  against  the  intermediate 
covenantee.  He  may  voluntarily  satisfy  his  grantee  who  has  been 
evicted,  and  then  recover  on  the  covenant  of  his  grantor,  taking, 
however,  the  risk  of  having  the  latter  establish  the  superiority  of 
his  title.87 

§  159.  Remote  assignee  may  sue  original  covenantor.  The 
last  grantee  or  assignee  may  maintain  simultaneous  actions 
against  each  prior  successive  grantor  who  conveyed  with  warranty 
and  recover  a  several  judgment  against  each ; 88  but  satisfaction 
of  one  of  the  judgments  will  be  satisfaction  of  all,  and  may  be 
pleaded  in  bar  of  any  other  action  on  the  covenant  by  the  same 
plaintiff,  or  by  any  subsequent  covenantee  to  whom  the  party 
making  satisfaction  may  be  liable,89  even  though  the  judgment 
satisfied  be  less  in  amount  than  one  recovered  against  such  subse- 
quent covenantee  by  the  last  grantee.90  If  the  land  came  to  the 


87  Herrin  v.  Mclntyre,  1  Hawkes  (X.  C. ),  410.  The  case  of  Kane  v.  Sanger, 
14  Johns.  (N.  Y.)  89,  in  so  far  as  it  decides  that  the  intermediate  covenantee 
is  "  damnified,"  within  the  meaning  of  the  rule  stated  in  the  text,  by  a  loss 
of  the  right  to  recover  the  unpaid  purchase  money  from  his  evicted  grantee, 
is  overruled,  it  is  apprehended,  by  the  case  cited  supra,  notes  84,  85,  86,  p.416. 

^Rawle  Covt.  §  214.  Winders  v.  Sutherland,  174  X.  C.  235,  93  S.  E.  726; 
Croom  v.  Allen,  145  Ga.  347,  89  S.  E.  199:  Keys  &c.  Realty  Co.  v.  Trustees, 
131  N.  Y.  Supp.  527,  146  App.  Div.  796;  Big  Bend  Land  Co.  v.  Hutchings, 
71  Wash.  345,  128  Pac.  652. 

89  King  v.  Kerr,  5  Ohio,  155;  22  Am.  Dec.  777;  Foote  v.  Burnett,  10  Ohio, 
317;  36  Am.  Dec.  90;  Wilson  v.  Taylor,  9  Ohio  St.  595;  75  Am.  Dec.  488. 

90  Wilson  v.  Taylor,  9  Ohio  St.  595;   75  Am.  Dec.  488.  This  case  presented 
a  novel  question.     The  last  grantee  brought  separate  actions  and  recovered  a 
separate   judgment   against   three   successive   grantors  with   warranty,   each 
judgment  being  for  a  different  amount.     The  first  grantor  having  satisfied 
the  judgment  against  himself,  which  was  the  smallest  in  amount,  the  ques- 
tion arose  whether  such  satisfaction  was  a  bar  to  an  action  over  against  him 
by  his  grantee  and  covenantee;   the  second  grantor,  who  had  paid  the  judg- 
ment,  larger   in  amount,   recovered   against  him   by   the   last   grantee.     The 
question  was  presented  by  demurrer  to  a  plea  of  the  first  grantor  setting  up 
this  defense  in  an  action  against  him  by  his  covenantee,  the  second  grantor. 
The  court,  by  BRINKERHOFF,  C.  J.,  said:   '"The  question  seems  to  be  one  of 
first  impression,  and  our  minds  are  not  free  from  difficulty  in  regard  to  it; 
but,  on  the  whole,  we  are  unanimously  of  opinion  that  the  plea  is  good.     As 
before   remarked,   Weis,   the   last  covenantee,   and   who   suffered   damage   by 
reason  of  partial  eviction,  was  entitled  to  his  several  action  against  all  the 
prior  covenantors.     Not  only  was  his  right  of  action  perfect  again-st  all,  but 
the  same   rule   of   damages  would  apply   as   to   all;    and   although   he   could 

53 


418  MAKKETABLE    T1TLK    TO    KKA1.    ESTATE. 

party  evicted  through  several  successive  conveyances  with  war- 
ranty, he  is  not  obliged  to  sue  first  his  immediate  covenantor,  but 
may  maintain  an  action  against  any  other  of  the  prior  grantors, 
and  a  judgment  against  any  one  of  these,  so  long  as  it  remains 
unsatisfied,  will  be  no  bar  to  an  action  against  the  others.91 

The  measure  of  damages  recoverable  by  a  remote  covenantee 
is  not  controlled  by  what  he  paid  for  the  land,  but  is  governed  by 
the  consideration  received  by  the  particular  covenantor  to  whom 
he  elects  to  look  for  damages  for  breach  of  the  warranty.92 

The  remote  covenantee  settling  with  and  releasing  the  original 
covenantor  without  the  consent  or  participation  of  the  inter- 
mediate covenantors,  thereby  releases  them  also.98 

§  1GO.  Mortgagee  entitled  to  benefit  of  covenant  of  warranty. 
The  general  rule  is  that  a  mortgagee  is  at  law  entitled,  as  assignee, 
to  the  benefit  of  a  covenant  of  warranty  contained  in  any  convey- 
ance under  which  the  mortgagor  claims  title,  so  far  as  may  be 
necessary  to  preserve  unimpaired  the  security  intended  by  the 
mortgage.94  In  equity,95  however,  and  at  law  in  such  of  the  Amer- 

have  but  one  satisfaction,  yet  he  was  clearly  entitled  to  recover  the  full 
amount  of  his  damages  against  each.  If  he  failed  to  make  the  proper  showing 
in  order  to  recover  the  full  amount  of  his  damages  against  each,  it  was  hi* 
own  fault;  and  having  collected  and  received  the  amount  recovered  against 
the  first  covenantor,  who  occupied  the  position  in  law  of  a  guarantor  of  all 
the  subsequent  grantees,  it  seems  to  us  that  Weis'  claim  under  all  the  cove- 
nants must  be  held  satisfied;  nnd  that,  all  enforcement  of  the  judgments 
against  the  other  intermediate  covenantors  was  wrongful  and  in  violation  of 
the  principle  that  he  could  have  hut  one  satisfaction."  The  court  then  sug- 
gested that  the  plaintiff  had  mistaken  his  remedy,  and  that  he  should  have 
enjoined  the  collection  of  the  judgment  against  himself,  or  have  sued  to 
recover  back  the  money  paid  thereon  as  money  had  and  received  to  his  uso 
by  the  last  grantee. 

•Withey  v.  Mumford,  5  Cow.  (N.  Y.)  137;  Oarlock  v.  Cross,  5  Cow. 
(N.  Y.)  143.  King  v.  Kerr,  5  Ohio,  168;  22  Am.  Dec.  777.  Booth  v.  Starr, 
1  Conn.  248;  0  Am.  Dec.  233. 

"Penney  v.  Woody,   (Tex.  Civ.  App.)   147  S.  W.  872.     See  post  ft  16«. 

"Hollingsworth  v.  Mexia,  14  Tex.  Civ.  App.  363.  37  S.  W.  455;  Penney  v. 
Woody,  (Tex.  Civ.  App.)  147  S.  W.  872. 

"Loekwood  v.  Sturdevant,  6  Conn.  373;  Cross  v.  Robinson,  21  Conn.  387. 
Lloyd  v.  Quinby,  6  Ohio  St.  262.  Andrews  v.  Woleott,  16  Barb.  (N.  Y.)  21; 
Astor  v.  Miller,  2  Paige  Ch.  (X.  Y.)  68;  Varick  v.  Briggs.  6  Paige  Ch.  (N.  Y.) 
324.  111.  Land  Co.  v.  Boomer,  91  III.  114.  Lane  v.  Woodruff  (Kans.  App.), 
40  Pac.  Rep.  1079.  Harper  v.  Perry,  28  Iowa.  67;  Roue  v.  Schaffner,  60  Iowa, 
486;  Devin  v.  Hendershott,  32  Iowa,  192.  This  was  an  action  by  the  grantee 


COVENANTS  OF   WARRANTY  AND  FOB  QUIET  ENJOYMENT.       419 

lean  States  as  maintain  the  rule  that  a  mortgage  is  a  mere  security 
for  the  payment  of  money  and  that  the  legal  title  remains  in  the 
mortgagor,96  a  purchaser  from  the  mortgagor  is  treated  as  an 
assignee  of  the  covenant,  subject  to  the  satisfaction  of  the  mort- 
gage. Doubtless  in  those  States  in  which  the  mortgagee  is  still 
treated  as  the  holder  of  the  legal  title,  the  rights  of  the  mortgagor 
in  the  covenant  of  warranty  would  not  be  recognized  in  a  court 
of  law,  and  he  would  be  driven  to  a  court  of  equity  for  relief.97 

or  beneficiary  in  a  deed  of  trust  on  a  covenant  of  warranty  contained  in  a 
conveyance  to  his  grantee.  The  defense  was  that  defendant,  the  covenantor, 
had  satisfied  the  covenantee  (grantor  in  the  deed  of  trust)  for  the  breach 
before  action  brought.  There  was  a  judgment  for  the  defendant  which  wag 
reversed  on  appeal,  the  court  holding  that  the  covenant  passed  with  the  land 
to  the  grantee  in  the  deed  of  trust  and  that  he  alone  could  sue  for  the 
breach.  In  McGoodwin  v.  Stephenson,  11  B.  Mon.  (Ky. )  21,  the  covenantee 
mortgaged  the  land  and  was  afterwards  evicted;  whereupon  he  brought  an 
action  for  breach  of  the  covenant  and1  recovered  a  judgment  for  damages. 
This  was  reversed  on  appeal,  the  court  holding  that  the  legal  title  and  with 
it  the  right  to  the  benefit  of  the  covenant  remained  in  the  mortgagee,  and 
that  so  long  as  the  mortgage  remained  in  full  force  and  unsatisfied  the 
mortgagor  could  maintain  no  action  on  the  covenant.  A  mortgagor  who 
remains  in  possession  by  right,  or  by  consent  of  the  mortgagee,  may  main- 
tain an  action  for  breach  of  a  covenant  of  warranty  in  the  deed  from  his 
grantor.  Pence  v.  Gabbert,  70  Mo.  App.  201.  (Contra,  Devin  v.  Hendershott, 
32  Iowa,  192.) 

85  Dart  Vendors  (5th  ed.),  780;  Rawle  Covt.  §  219.  Wesco  v.  Kern  (Oreg.), 
59  Pac.  Rep.  548. 

'"Davidson  v.  Cox,  11  Neb.  250;  9  N.  W.  Rep.  95.  White  v.  Whitney,  3  Met. 
(Mass.)  81.  DowiraR,  J.,  in  Wright  v.  Sperry,  21  Wis.  334.  Ely  v.  Hergesell, 
46  Mich.  325;  9  N.  W.  Rep.  435. 

97  In  Kavanagh  v.  Kingston,  3Q  Upp.  Can.  Q.  B.  415,  and  Claxton  v.  Gilben, 
24  Upp.  Can.  C.  B.  500,  it  was  decided  that  where  the  purchaser  of  land  took 
a  conveyance  with  warranty  from  the  vendor  and  executed  a  mortgage  to 
secure  the  purchase  money,  the  benefit  of  the  covenants  would  at  law  vest  in 
the  mortgagee  notwithstanding  the  fact  that  he  was  the  party  bound  by 
them.  The  same  result  would,  of  course,  follow  in  those  States  in  which  the 
legal  title  is  held  to  be  in  the  mortgagee.  There  could  be  no  doubt  how- 
ever, that  in  such  a  case  the  covenants  would  be  enforced  in  equity  for  the 
benefit  of  the  mortgagor.  In  Brown  v.  Staples,  28  Me.  497;  48  Am.  Dec. 
504,  it  was  held  that  the  covenants  in  the  mortgage  would  not  prevent  the 
maintenance  of  an  action  on  the  covenants  in  the  original  deed.  One  who 
purchases  under  a  foreclosure  of  a  purchase-money  mortgage,  is  entitled  to 
the  benefit  of  a  covenant  of  warranty  in  the  original  conveyance  from  the 
mortgagee  to  the  mortgagor.  In  such  a  case  the  execution  of  the  purchase- 
money  mortgage  by  the  covenantee  does  not  extinguish  the  covenants  in  the 
mortgagee's  contemporaneous  conveyance  to  him.  Town  v.  Needham,  3  Paige 
Ch.  (N.  Y.)  545;  24  Am.  Dec.  246. 


4L!0  MARKETABLE    TITLE    TO    REAL    ESTATE. 

If  one  holding  under  a  conveyance  with  warranty  execute  a 
purchase-money  mortgage  with  like  warranty,  he  will  not  be 
thereby  estopped  from  maintaining  an  action,  on  the  original 
warranty.98 

§  ItJl.  The  original  covenantor  must  have  been  actually 
seized.  It  has  been  held  in  America,  following  an  early  English 
decision,"  that  if  one  unlawfully  in  possession  of  an  estate  convey 
it  with  warranty  against  the  claims  of  the  true  owner  and  put 
his  grantee  in  }>ossessioii,  a  subsequent  grantee  could  not  recover 
at  law  on  the  warranty  since  no  estate  having  passed  by  the 
original  covenantor's  conveyance  there  wras  nothing  with  which 
the  covenant  could  run.1  Obviously  such  a  doctrine  would  destroy 
the  usefulness  of  the  covenant  of  warranty  as  an  assurance  of  the 
title  to  those  claiming  under  the  covenantee,  for,  as  a  general  rule, 
it  is  only  in  case  of  an  eviction  under  a  paramount  title  that  the 
assignee  has  any  occasion  to  call  upon  the  covenantor  for  indem- 
nity. Accordingly  the  decision  in  question  has  not  been  followed 
to  any  important  extent  in  America.  The  rule  generally  prevail- 
ing here  is  that  if  possession  of  the  land  actually  passed  from  the 
covenantor  to  the  covenantee  the  subsequent  assignee  will  be 
entitled  to  the  benefit  of  the  covenant  whether  the  original  cove- 
nantor was  rightfully  or  wrongfully  seised  of  the  land.2  It  is  a 

"Hubhard  v.  Norton,  10  Conn.  433.    Haynes  v.  Stevens,  11  N.  H.  28. 

••Xoke  v.  Awiler,  Cro.  Eliz.  373.  This  was  an  action  on  a  covenant  for 
quiet  enjoyment  contained  in  a  lease  brought  by  an  assignee  of  the  lessee 
against  the  original  covenantor.  Judgment  was  about  to  be  entered  for  the 
plaintiff,  when  it  was  objected  by  Sir  Edward  Coke,  counsel  for  the  de- 
fendant, that  the  plaintiff  could  not  recover  without  showing  an  eviction 
under  a  paramount  title,  and  that,  if  he  showed  such  an  eviction,  he  estab- 
lished the  fact  that  the  original  covenantor  was  wrongfully  in  possession  and 
that  no  estate  passed  from  him  except  a  lease  by  estoppel,  and  consequently 
there  was  nothing  with  which  the  covenant  could  run  so  as  to  benefit  an 
assignee.  Judgment  was  entered  for  the  defendant.  Mr.  Rawle  says  that 
this  case  has  not  been  followed  by  recent  decisions  in  England,  and  regrets 
that  the  decision,  "which  was  a  mere  professional  triumph  of  Sir  Edward 
Coke  upon  a  question  of  pleading,  should  have  disturbed  the  courts  of  last 
resort  upon  both  side*  of  the  Atlantic  for  more  than  a  eenfury."  Rawle  Covt. 
It  232,  23fl.  citing  Cuthbertson  v.  Irving,  4  Hurl.  &  Norm.  755;  S.  C.,  1 
Smith's  L.  Cas.  136. 

•Nesbit  v.  Nesbit.  Conf.  Rep.  (N.  C.)  403;  Nesbit  v.  Brown,  1  Dev.  Eq. 
(N.  C.)  30.  BRNitlxo.  J.,  in  Martin  v.  Gordon.  24  Oa.  533. 

•Wilson  v.  Widrnhnm.  51   Me.  5fW.     Dickinson  v.  Hoomes,  8  Orat.    (Va.) 


COVENANTS  OF   WA11KANTY  AND  FOR  QUIET  ENJOYMENT.       421 

rule,  however,  supported  by  the  weight  of  American  authority, 
that  a  covenant  of  warranty  does  not  enure  to  the  benefit  of  an 
assignee  unless  the  original  covenantor  was  actually  seized  and 
possession  passed  from  him  to  his  grantee.3  Upon  a  somewhat 
similar  principle  it  has  been  held  that  if  A.  convey  an  easement 
in  the  lands  of  B.  with  covenants  for  title,  a  grantee  of  the  cove- 
nantee  could  not  have  the  benefit  of  the  covenants,  for,  no  land  hav- 
ing been  conveyed,  the  covenants  could  not  "  run  with  the  land  " 
in  favor  of  the  assignee.4 

If  a  person  without  any  title  or  claim  of  title  join  in  a  convey- 
ance of  land  with  covenants  of  warranty,  e.  g.,  where  the  husband 
joins  with  the  wife  in  a  conveyance  of  her  land,  he  will  of  course 

353;  Randolph  v.  Kinney,  3  Rand.  (Va.)  397.  Wallace  v.  Pereles,  109  Wis. 
316;  85  X.  W.  Rep.  371.  In  Beddoe  v.  Wadsworth,  21  Wend.  (N.  Y.)  120, 
it  was  held  that  if  possession  was  taken  under  the  deed  and  transferred  by 
a  subsequent  conveyance,  an  action  might  be  maintained  by  the  last  grantee 
upon  the  covenants,  because  such  possession  would  carry  the  covenants  an- 
nexed to  the  land  although  no  title  was  in  fact  in  the  grantor  at  the  time 
of  the  conveyance.  Without  such  possession  there  can  be  no  eviction,  which 
is  indispensable  for  laying  the  ground  of  any  action  upon  the  covenant  of 
warranty.  Moore  v.  Merrill,  17  N.  H.  75;  43  Am.  Dec.  593.  One  cannot 
be  evicted  if  he  has  never  had  either  actual  or  constructive  possession  of  the 
premises.  Matteson  v.  Vaughn,  38  Mich.  373.  The  remote  grantee  cannot  re- 
cover on  the  warranty  if  he  knew,  at  the  time  of  the  conveyance  to  him,  that 
the  original  deed  was  not  intended  to  pass  the  title  —  as  in  the  case  of  a  deed 
absolute  in  form  but  in  fact  a  mortgage.  Snadon  v.  Salmon,  135  Ky.  47,  121 
S.  W.  970. 

*  Slater  v.  Rawson,  1  Met.  (Mass.)  455.  Hacker  v.  Storer,  8  Gr.  (Me.) 
228;  McConaughey  v.  Bennett,  50  W.  Va.  172;  40  S.  E.  Rep.  540,  and  cases 
cited  in  last  note.  The  last  grantee,  whose  grantor  was  in  actual  possession, 
may  sue  the  original  grantor  upon  a  breach  of  the  covenant,  though  the 
latter  was  not  in  possession  at  the  time  of  his  conveyance.  Tillotson  v. 
Prichard,  60  Vt.  94;  14  Atl.  Rep.  302.  The  case  of  Wead  v.  Larkin,  54  111. 
489;  5  Am.  Rep.  149,  contains  a  vigorous  attack  upon  the  proposition  stated 
in  the  text.  In  that  case  the  land  conveyed  was  vacant  and  unoccupied,  and 
it  appeared  that  the  original  covenantors  had  never  'been  in  possession.  Pos- 
session was  taken  by  the  grantee,  who  reconveyed  the  premises  to  the  plain- 
tiff, who,  upon  eviction,  brought  an  action  on  the  covenant  of  the  original 
grantor.  Judgment  was  rendered  for  the  plaintiff,  the  court  disapproving 
th«  decision  in  Slater  v.  Rawson,  supra.  As  to  the  effect  of  "  constructive 
possession  "  by  the  original  covenantor,  see  Solberg  v.  Robinson,  34  S.  D.  55, 
147  N.  W.  87. 

4Wheelock  v.  Thayer,  16  Pick.  (Mass.)  68.  Disapproved  in  Wilson  v. 
Cochran,  46  Pa.  St.  233.  See  Rawle  Covts.  (5th  ed.)  207,  n. 


MARKETABLE    TITLE    TO    KEAL    ESTATE. 

be  bound  upon  his  covenants  to  the  grantee;  but  it  has  been  held 
that  for  want  of  privity  of  estate,  those  covenants  will  not  run 
with  the  laud,  and  that  he  will  not  be  liable  thereon  to  a  remote 
grantee  of  the  premises;  in  other  words,  that  a  covenant  of  war- 
ranty entered  into  jointly  by  one  assuming  to  be  the  owner  of  the 
fee,  and  a  stranger  to  the  title  will  not  run  with  the  land  as 
against  the  stranger,  and  will  not  be  available  in  favor  of  a  sub- 
sequent grantee  who  holds  no  assignment  of  the  cause  of  action 
arising  from  the  breach.5 

§  162.  Assignee  not  affected  by  equities  between  covenantor 
and  covenantee.  The  assignee  cannot,  except  in  the  case  of  a 
release  by  the  covenautee,  be  affected  by  any  agreement  between 
the  covenantor  and  the  covenantee  by  which  the  liability  of  the 
former  is  lessened;6  for  example,  an  agreement  at  the  time  of  the 
covenant  that  the  covenantee  should  pay  off  an  incumbrance  on 
the  premises,  as  part  of  the  consideration ; 7  or  that  the  considera- 
tion to  be  paid,  should  be  less  than  that  expressed  in  the  convey- 
ance containing  the  covenant.8  Then  si-cms  to  be  no  very  clear 
reason  why  a  release  by  the  covenantee  should  be  sustained  as 
against  an  assignee  without  notice;  such  an  act  appears  to  be 
clearly  within  the  spirit  of  the  rule  that  the  assignee  cannot  be 
affected  by  equities  between  the  original  parties  of  which  he  has 
notice,9  and  has  born  held  to  be  within  a  statute  providing  that  a 

•Mygatt  v.  Coe,  124  X.  Y.  212;  26  N.  E.  Rep.  611,  distinguishing  Noke  v. 
Awder,  supra.  In  this  case  the  defendant  joined  with  his  wife  in  a  convey- 
ance of  land  claimed  to  be  hers,  and  warranted  the  title.  The  land  passed 
through  ini'Mii>  coim-vances  to  the  plaintiff,  who  was  evicted  hy  one  having 
title  paramount  -to  the  defendant's  wife,  and  who  thereupon  brought  thi> 
action  on  the  covenants  in  the  original  deed  executed  by  defendant  and  wife. 
Tin*  court  held  that  defendant  (husband)  being  a  stranger  to  the  title,  his 
n.int  of  warranty  did  not  run  with  the  land,  and  that  consequently  there 
could  be  no  recovery  against  him.  There  was  a  learned  di-M-nting  opinion 
I iv  KKAUI.KY.  J..  with  wlmm  rnm-urred  HAIOHT  and  BROWX,  J.T.  H.  T.  &  C. 
v.  \Vhit.-hoiiM-.  47  I'tah  .323,  154  Pac.  1)50,  L.  R.  Ann.  1916  D.  lill. 

•Siiy.lam  v.  Jones,  10  Wend.  (N.  Y.)  181;  25  Am.  Dec.  552.  Brown  v. 
Stapl.-.  -JS  Me.  497;  48  Am.  Dec.  504.  Eveleth  v.  Crouch,  15  Mass.  307. 
Snadun  v.  Salmon.  135  Ky.  47,  121  S.  W.  970. 

*  Suydam  v.  Jones,  supra. 

•Green  van  It  v.  Davi-.  I  liill  (N.  Y.I.  f.ct.  111.  Land  Co.  v.  Bonner,  91 
111.  114.  Hunt  v.  Orwig.  17  B.  M.m.  (Ky.)  73;  56  Am.  Dec.  144. 

•Kellogg  v.  Wood,  4  Paige.  Ch.    (N.  Y.)    578. 


COVENANTS  OF  WAKKANTY  AND  FOR  QUIET  ENJOYMENT.       423 

deed  concerning  lands,  tenements  and  hereditaments,  must  be 
recorded  in  order  to  bind  a  subsequent  purchaser  without  notice.10 

§  163.  Covenant  extinguished  by  reconveyance  to  covenantor. 
If  the  covenantee  reconvey  to  the  covenantor,  or  if  by  act  of  the 
law  or  otherwise  the  premises  be  again  vested  in  the  covenantor, 
the  covenant  of  warranty  is  extinguished.11  Thus,  it  has  been 
held  that  if  A.  convey  to  B.  with  warranty,  and  B.  then  reconveys 
to  A.  with  warranty,  the  last  covenant  can  only  protect  A.  against 
a  title  from  or  under  B.  subsequent  to  A.'s  conveyance  to  him. 
If  A.  is  evicted  in  consequence  of  a  defect  in  the  title  prior  to 
that  time,  he  cannot  recover  against  B.  on  the  covenant  contained 
in  the  last  conveyance;  his  own  covenant  would  be  a  complete 
bar  to  the  suit.12  But  in  order  that  the  reconveyance  shall  extin- 
guish the  covenant,  the  parties  must  be  the  same.  If  two  grant 
lands  with  warranty  and  the  grantee  reconveys  to  one  of  the 
grantors  with  warranty,  the  first  warranty  is  not  thereby 
extinguished.13  Neither  is  there  a  release  of  the  covenant  where 
the  reconveyance  is  made  in  a  representative  capacity  only.14  Nor 
does  a  reconveyance  by  the  grantee,  by  way  of  mortgage,  to  the 
grantor,  extinguish  the  warranty  in  the  original  deed;  the  bene- 
fit of  such  covenant  passes  to  a  purchaser  at  a  sale  under  the 
mortgage.15 

Pleading.  An  assignee  in  suing  on  a  covenant  of  warranty, 
should  set  out  the  deed  containing  the  covenant,  declared  on,  and 
then  derive  title  to  himself  through  the  intermediate  conveyances, 
naming  them  and  giving  their  dates,  but  it  is  not  necessary  that 
the  operative  parts  or  the  formalities  of  the  execution  of  such 
conveyances  should  be  set  forth.16 

10  Susquehanna  Coal  Co.  v.  Quick,  61  Pa.  St.  339.  See,  also,  Field  v.  Snell, 
4  Gush.  (Mass.)  50. 

"Co.  Litt.  490a;  Bac.  Abr.  Warranty,  O..  p.  413.  Goodel  v.  Bennett,  22 
Wis.  565.  Silverman  v.  Loomis,  104  111.  137.  Carroll  v.  Carroll,  113  Iowa, 
419;  85  N".  W.  Rep.  639;  Green  v.  Edwards  (Tex.  Civ.  App.),  39  S.  W.  Rep. 
1005. 

"Kellogg  v.  Wood.  4  Paige  Ch.   (N.  Y.)   614. 

"Bac.  Abr.  451,  n.;  1  Co.  Inst.  393a;  Prest.  Touch.  201.  Birney  v.  Hann, 
3  A.  K.  Marsh.  (Ky.)  322;  13  Am.  Dec.  167. 

14  Curtis  v.  Hawley,  85  111.  App.  429. 

"Wiggins  v.  Pencler,  132  X.  C.  628;  44  N".  E.  Rep.  362;  Wesco  v.  Kern 
(Oreg.),  59  Pac.  Rep.  548. 

"Williams  v.  Weatherbee,  1  Aik.   (Vt.)   233. 


424  MARKETABLE    TITLE    TO    REAL    ESTATE. 

The  action  by  the  remote  covenantee  is  local  —  not  transitory, 
and  will  lie  only  in  the  place  where  the  land  is.17 

§  164.  MEASURE  OF  DAMAGES.  General  rules.  The  measure 
of  damages  in  an  action  against  the  vendor  for  breach  of  a  contract 
for  the  sale  of  personal  property  is  the  difference  between  the 
contract  price  and  the  market  price.18  A  contrary  rule  with 
respect  to  personal  property  would  seriously  embarrass  commercial 
transactions  by  holding  out  a  strong  temptation  to  the  seller  to 
violate  his  contract,  pay  the  purchase  price  in  damages  to  the 
buyer,  and  place  in  his  own  pockets  the  increase  in  value  of  the 
goods.  Such  also  is  the  rule  of  damages  for  breach  of  an  execu- 
tory contract  for  the  sale  of  lands  where  the  vendor  wilfully  and 
wrongfully  refuses  to  convey  to  the  purchaser,  or  sells  the  estate 
knowing  that  by  reason  of  a  defective  title  he  will  not  be  able 
to  perform  his  contract.19  But  a  case  in  which  the  estate  was  sold 
and  conveyed  by  the  vendor  in  good  faith  believing  his  title  to  be 
good,  is  considered  to  stand  upon  different  grounds;  and  if  the 
estate  be  afterwards  lost  to  the  purchaser  through  a  failure  of  the 
title,  the  vendor  will  only  be  liable  to  him  in  damages  for  the 
value  of  the  land  at  the  time  the  contract  was  made,  to  be  meas- 
ured by  the  purchase  price,  without  regard  to  the  increased  value 
of  the  land  at  the  time  of  the  loss  of  the  estate,  whether  caused 
by  a  general  rise  in  the  value  of  lands,  or  by  improvements  placed 
thereon  by  the  purchaser.  This  is  the  rule  in  case  of  a  breach 
of  an  executory  contract  for  the  sale  of  lands;  of  a  breach  of  the 
covenant  of  seisin ; 20  and  of  the  covenants  of  warranty  and  for 

"Keys  4c.  Realty  Co.  v.  Trustees,  131  N.  Y.  Supp.  627,  146  App.  Div.  796. 

"Sedg.  Dam.  p.  365.     Staed  v.  Rossier,  157  Mo.  App.  300,  137  S.  W.  901. 

"Sedg.  Dam.,  $   1010.     Ante,  |  97. 

"As  to  executory  contracts  see  ante,  5  90,  aa  to  the  covenant  of  seisin, 
ante,  ?  116,  and  tlie  cases  cited  in  the  following  note.  Except  in  certain  of 
the  New  Kngland  States  the  rule  of  damages  for  breach  of  the  covenant  of 
seisin  where  there  has  been  an  eviction  and  those  of  warranty  and  for  quiet 
enjoyment  is  the  same.  4  Kent  Cum.  462,  465.  King  v.  Kerr,  5  Ohio,  160: 
22  Am.  Dec.  77.  Brandt  v.  Foster,  5  Iowa,  297.  Cox  v.  Strode.  2  Bibb  (Ky.). 
275;  5  Am.  Dec.  603.  It  has  been  deemed  better  to  separate  the  caaes  arising 
under  the  covenants  of  seisin  and  of  warranty,  and  to  treat  the  rule  of  clam- 
apeti  with  respect  to  each  covenant  separately,  but  the  caws  cited  to  the  one 
may  be  considered  with  profit  in  the  examination  of  the  other. 


COVENAATS  OF  WARRANTY  AND  FOIl  QUIET  ENJOYMENT.       425 

quiet  enjoyment,21  except  that  in  certain  of  the  New  England 
States  the  covenantee  is  allowed  the  value  of  the  estate  at  the 

21  Field  Dam.  §  461;  Rawle  Covt.  §  164;  1  Sedgw.  Dam.  238;  2  Sutherland 
Dam.  280;  Waite's  Act.  &  Def.  401.  Cox  v.  Strode,  2  Bibb  (Ky.),  275;  5 
Am.  Dec.  603;  Booker  v.  Bell,  3  Bibb  (Ky.),  176;  6  Am.  Dec.  641;  Cum- 
mings  v.  Kennedy,  3  Litt.  (Ky.)  125;  14  Am.  Dec.  45;  Pence  v.  Duval,  9  B. 
Mon.  (Ky.)  48;  Hanson  v.  Buckner,  5  Dana  (Ky.),  254;  29  Am.  Dec.  401; 
Robertson  v.  Lemon,  2  Bush  (Ky.),  301.  Stout  v.  Jackson,  2  Rand.  (Va.) 
132,  where  the  question  was  for  the  first  time  directly  presented  in  Virginia. 
There  was  an  able  opinion  by  GREEX,  J.,  announcing  the  rule  stated  in  the 
text,  and  disapproving  the  dicta  to  the  contrary  in  Mills  v.  Bell,  3  Call  (Va.), 
322,  and  other  early  cases.  COALTEB,  J.,  dissented.  The  rule  settled  in  this 
case  remains  unchanged  in  Virginia.  Thompson  v.  Guthrie,  9  Leigh  (Va.), 
101;  33  Am.  Dec.  225;  Threlkeld  v.  Fitzhugh,  2  Leigh  (Va.)  451;  Jackson 
v.  Turner,  5  Leigh  (Va,),  126;  Lowther  v.  Com.,  1  Hen.  &  Munf.  (Va.)  202; 
Click  v.  Green,  77  Va.  827.  Moreland  v.  Metz,  24  W.  Va.  137;  49  Am.  Rep. 
246 ;  Butcher  v.  Peterson,  26  W.  Va.  447 ;  53  Am.  Rep,  89.  Barnett  v.  Hughey 
(Ark.),  15  S.  W.  Rep.  464.  Brown  v.  Dickerson,  12  Pa.  St.  372;  McClure 
v.  Gamble,  27  Pa.  St.  288 ;  Cox  v.  Henry,  32  Pa.  St.  18.  Doyle  v.  Brundred, 
189  Pa.  St.  113;  14  Atl.  Rep.  1107.  Holmes  v.  Sinnickson,  3  Gr.  (N.  J.  L.) 
313;  Hulse  v.  White,  1  Cox  (X.  J.  L.),  173;  Drake  v.  Baker,  34  ]ST.  J.  L. 
360.  Willson  v.  Willson,  5  Fost.  (N.  H.)  229;  57  Am.  Dec.  320;  Drew 
v.  Towle,  30  N.  H.  531;  64  Am.  Dec.  309;  Nutting  v.  Herbert,  35  N.  H.  120. 
Kinney  v.  Watts,  14  Wend.  (ST.  Y.)  38;  Peters  v.  McKeon,  4  Den.  (N.  Y.) 
550;  Hymes  v.  Van  Cleef,  15  N.  Y.  Supp.  341;  the  head  note  to  this  case 
is  misleading.  May  v.  Wright,  1  Overt.  (Tenn.)  385,  semble;  Elliott  v. 
Thompson,  4  Humph.  (Tenn.)  98;  40  Am.  Dec.  630;  MeGuffey  v.  Humes,  85 
Tenn.'  26;  1  S.  W.  Rep.  506.  Dickens  v.  Shepherd,  3  Murph.  (N.  C.)  326. 
Henning  v.  Withers,  3  Brev.  (S.  C.)  458;  6  Am.  Dec.  589;  Furman  v.  Elmore, 
2  Nott  &  McC.  (S.  C.)  189;  Lourance  v.  Robertson,  10  S.  C.  12.  Davis 
v.  Smith,  5  Ga.  274;  47  Am.  Rep.  279.  A  very  exhaustive  opinion  was  de- 
livered in  this  case,  reviewing  the  doctrines  of  the  ancient  common  law  appli- 
cable to  the  rule  stated  in  the  text.  Simpson  v.  Balvin,  37  Tex.  685.  Kemp- 
ner  v.  Lumber  Co.,  20  Tex.  Civ.  App.  307;  49  S.  W.  Rep.  412.  Roberts  v. 
McFadden  (Tex.  Civ.  App.),  74  S.  W.  Rep.  105.  (Compare  Davis  v.  Fair, 
152  S.  W.  218  and  Adams  v.  Cox,  150  S.  W.  1195,  Texas  cases.)  Clark  v. 
Parr,  14  Ohio,  118;  45  Am.  Dec.  529;  McAlpin  v.  Woodruff,  11  Ohio  St.  120. 
Stebbins  v.  Wolf,  33  Kans.  765;  7  Pac.  Rep.  542;  Doom  v.  Curran,  52  Kans. 
360;  34  Pac.  Rep.  118.  Dalton  v.  Bowker,  8  Nev.  190;  Hoffman  v.  Bosch,  18 
Nev.  360.  Brandt  v.  Foster,  5  Iowa,  297 ;  Swafford  v.  Whipple,  3  Gr.  ( lo. ) 
261;  54  Am.  Dec.  498.  Stark  v.  Olney,  3  Oreg.  88.  Lloyd  v.  Sandusky,  203 
111.  621;  68  N.  E.  Rep.  154.  Sheets  v.  Andrews,  2  Bl.  (Ind.)  274;  Reese  v. 
McQuilkin,  7  Ind.  450;  Phillips  v.  Reichert,  17  Ind.  120;  79  Am.  Dec.  463; 
Burton  v.  Reeds,  20  Ind.  87;  Wood  v.  Bibbins,  58  Ind.  392;  McClure  v. 
McClure,  65  Ind.  487 ;  Boatman  v.  Wood,  50  Ind.  403,  right  to  interest  on  the 
purchase  money.  Donlon  v.  Evans,  40  Minn.  501 ;  42  N.  W.  Rep.  472,  semble. 
Martin  v.  Long,  3  Mo,  391;  Dunnica  v.  Sharp,  7  Mo.  71;  Tong  v.  Matthews, 
54 


426  MAKKKTAHLE    TITLE    TO    REAL    KSTATE. 

time  of  eviction,  in  case  of  a  breach  of  the  covenant  of  warranty 
or  for  quiet  enjoyment.22  In  those  States,  however,  the  rule  of 
damages  for  a  breach  of  the  covenant  of  seisin  is  the  same  as  that 
which  prevails  in  the  other  States.  At  common  law  upon  a  loss 
of  the  estate  by  eviction  under  a  paramount  title,  the  remedy  of 
the  tenant  upon  the  warranty  of  the  lord  of  the  fee  was  by  writ 

•23  Mo.  437;  Lambert  v.  Kates,  99  Mo.  604;  13  S.  W.  Rep.  284.  Blossom  v. 
Knox,  3  Pinney  (Wis.) ,  262  (3  Chanel.  295)  ;  Conrad  v.  Trustees,  64  Wis.  258; 
2.">  X.  VV.  Rep.  24.  Griffin  v.  Reynolds,  17  How.  (U.  S.)  609;  Patrick  v.  Leach, 
1  McCrary  (U.  S.),  250.  Cheney  v.  Straube,  35  Nebr.  521 ;  53  N.  W.  Rep.  479. 
Holmes  v.  Sinnickson  (Nebr.),  100  N.  W.  Rep.  417.  West  Coast  Mfg.  Co.  v. 
West  Coast  Imp.  Co.,  31  Wash.  610;  72  Pac.  Rep.  455.  The  following  obser- 
vations  by  CABB,  J.,  in  Threlkeld  v.  Fitzhugh,  2  Leigh  (Va.),  461,  are  a 
forcible  example  of  the  arguments  employed  by  those  who  maintain  that  the 
evicted  purchaser  is  not  entitled  to  damages  for  the  increased  value  of  the 
estate:  "When  land  is  sold  the  existing  state  of  things,  the  present  value 
and  situation  of  the  land,  are  the  subjects  in  the  minds  of  the  parties;  it  t» 
this  land  as  it  now  is  that  is  bought  and  sold  and  warranted.  It  is  most 
natural  then  to  suppose  that  the  parties  mean  that  the  purchase  money,  the 
standard  of  value  to  which  they  have  both  agreed  in  the  sale,  shall  be  the 
measure  of  compensation  if  the  land  be  lost.  They  seldom  look  into  futurity 
to  speculate  upon  the  chances  of  a  rise  or  fall  in  value.  If  they  did  the 
views  of  buyer  and  seller  would  probably  be  very  different;  and,  whatever 
they  might  be,  could  form  no  part  of  the  contract,  nor  enter  into  its  con- 
^truetinn.  What  is  it  that  the  seller  warrants?  the  land  itself.  Does  thi> 
warranty,  either  by  force  of  its  terms  or  by  the  intention  of  the  parties,  ex- 
tend to  any  future  value  which  the  lands  may  reach  when  they  have  become 
the  site  of  a  populous  city,  are  covered  with  expensive  buildings,  or  mines  of 
j:"l(l  have  been  found  in  their  bowels?  Such  a  state  of  things  was  probably 
not  dreamed  of.  And  how  can  these  subsequent  accessions  be  the  subject  of 
a  warranty  made  when  they  had  no  existence,  nor  \\en-  even  in  the  contempla- 
tion of  the  parties."  Recent  Cases:  Allinder  v.  Bessemer  Co.,  164  Ala.  275, 
51  So.  234;  McCormick  v.  Marcy,  165  Cal.  386,  132  Pac.  409;  Taylor  v.  Allen, 
131  Ga.  41f,.  K->  S.  K.  291;  Maiizy  v.  Flint.  42  Ind.  App.  380,  83  X.  K.  757; 
Boi«>  v.  Toffeei..  l.'is  Inwn  7«».l.  1  3S  X.  W.  s.'i7 ;  Sullivan  v.  Hill,  33  K>. 
L.  K.  !>H2.  112  S.  W.  5(54:  Brooks  v.  Mohl,  104  Minn.  404.  116  X.  W.  031. 
121  Am.  St.  Rep.  629,  17  L.  R.  A.  (N.  S.)  1196;  Allen  v.  Miller,  99  Mi~.  7.1 
.  7U;  Withers  v.  Bank,  104  Miss.  681,  61  So.  690;  Coleman  v.  Luck- 
liBgcr,  -JJ4  M...  1.  lj:i  S.  W.  Ill  :  26  L.  R.  A.  (X.  S.)  934;  Quick  v.  Walker. 

\lo.  App.  2.~.7.   lii-J  S.  W.  33;   Mereh.  Xat.  Bank  v.  Ot.i,,.  li  J  \.   M 
17.-,    I';,,-.    7*1:    Hunt    v.    Hay,   214   N.    Y.    578,    108   X.    K.    Ml)    Campbell    v. 
Bentley,  11  :•  N.   V  "Mipp.  '.'_'.   !.">!»  App.  Div.  f>-_'2 :   Ariml.l   v.  .loinc-,  50  Okl.  4, 
150  Piic.   130;    1-olk   N.  (lialiam.  S2  S.  C.  66,  62  S.  K.  110(!;    Fi.l.   Lumber  Co. 
v.  Kuin-.   (  l.\.  <  iv.    \pp.i   2nl   S.  \V.  11C,:?;   Wiggins  v.  Stephens,   (Tex.  Ctv. 
App.)   191  S.  W.  777;  Irwin  v.  Maple.  252  Fed.  10,  164  C.  C.  A.  122. 
"Post,  |  165. 

JJI 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET  ENJOYMENT.       427 

of  warrantia  chartce  in  which  he  had  restitution  of  other  lands  to 
the  amount  of  those  which  he  had  lost.  Damages  were  hot  recov- 
erable, unless  the  warrantor  were  unable  to  make  restitution  in 
kind,  and  then  the  warrantee  was  allowed  nothing  for  improve- 
ments or  for  the  increased  value  of  the  land.23  By  the  civil  law 
the  vendor,  whether  with  or  without  fault,  is  bound  to  indemnify 
the  purchaser  to  the  full  extent  of  his  loss,  which,  of  course, 
includes  improvements  and  the  increased  value.2*  An  apparent 
exception  to  the  rule  that  the  measure  of  damages  for  a  breach 
of  the  covenant  of  warranty  is  the  value  of  the  land  at  the  time 
of  the  conveyance  exists  where  the  covenant  of  warranty  is  con- 
tained in  a  mortgage  or  deed  of  trust  to  secure  the  payment  of  a 
debt.  In  such  a  case  the  value  of  the  land  at  the  time  of  the 
eviction  is  the  measure  of  the  covenantee's  damages,  provided  that 
value  do  not  exceed  the  amount  of  the  debt  secured.25  It  is  obvious, 
however,  that  in  such  a  case  the  debt  secured  is,  for  this  purpose, 
treated  as  the  equivalent  of  a  price  paid  for  the  land.  If  the 
transaction  between  the  grantor  and  the  grantee  consisted  of  an 
exchange  of  lands,  the  agreed  value,  or  if  none,  the  market  value 
of  the  lands  given  in  exchange,  is  the  measure  of  damages  on  evic- 
tion from  the  lands  received  in  exchange.26 

MGore  v.  Brazier,  3  Mass.  523;  3  Am.  Dec.  182. 

24  Hale  v.  New  Orleans,  IS  La,  Ann.  321. 

25  Thus,  in  Haffey  v.  Birchetfcs,  11  Leigh  (Va.),  89,  a  distinction  was  drawn 
between  a  breach  of  a  covenant  of  warranty  contained  in  a  deed  of  bargain 
and  sale  and  such  a  covenant  in  a  deed  of  trust  to  secure  a  debt,  the  court 
holding  that  in  the  latter  case  the  measure  of  damages  was  the  value  of  the 
premises  at  the  time  of  the  eviction.     "  In  case  of  a  sale  the  measure  is  the 
value  at  the  time  of  the  sale,  and  the  test  of  this  value  is  the  purchase  money. 
But  in  the  case  of  an  incumbrance  this  principle  can  have  no  application, 
for  price  is  not  a  subject  of  adjustment  in  the  treaty  for  a  security.     Ade- 
quacy is  alone  inquired  into.    The  true  measure  of  damages,  therefore,  in  case 
of  eviction  by  superior  title,  is  the  value  of  the  mortgaged  or  trust  subject 
at  the  time  of  eviction,  provided  it  do  not  exceed  the  amount  of  the  debt 
secured,  for  it  is  obvious  that  the  creditor  can  never  be  damaged  to  a  greater 
amount  than  that."     Thus,  if  the  land  at  the  time  of  the  execution  of  the 
deed  of  trust  was  of  the  value  of  $1,000,  the  debt  secured  was  $2,000,  and  the 
land  had  increased  in  value  to  $2,000  at  the  time  of  the  eviction,  the  bene- 
ficiary would  be  entitled  to  the  sum  of  $2,000  as  damages.     There  is  no  in- 
justice in  this  result,  the  covenantor  being  liable  for  the  whole  $2,000  at  all 
events. 

"Looney  v.  Reeves,  5  Kans.  App.  279;   48  Pac.  Rep.  606. 


4'2S  MARKETABLE    TITLE    TO     KKAl.    ESTATE. 

It  is  to  be  observed  that  the  rule  generally  prevailing  through- 
out the  United  States,  denies  to  the  covenantee  upon  a  breach  of 
any  of  the  covenants  for  title,  any  recovery  in  damages  for  the 
increased  value  of  the  land,  whether  arising  from  extrinsic  causes, 
or  resulting  from  the  labor  and  skill  of  the  covenantee,  and  the 
improvements  which  he  may  have  placed  on  the  land.  The  rule 
is  rested  largely  iipon  the  presumed  intention  of  the  parties.27 
They  contract  with  reference  to  the  present  value  of  the  estate, 
and  if  the  covenantee  has  any  apprehensions  as  to  the  title  and 
the  safety  of  his  bargain,  he  should  require  special  covenants  to 
protect  himself  from  loss.28  The  apparent  hardship  of  the  rule  is 
lessened  by  several  considerations.  Thus,  if  the  covenantee  knew 
the  title  was  bad,  he  took  the  risk  of  losing  his  improvements,29 
and  if  he  forebore  an  examination  and  remained  ignorant  of  the 
state  of  the  title,  it  was  his  own  fault  and  calls  for  an  application 
of  the  maxim  that  where  one  of  two  innocent  parties  must  suffer 
a  loss,  he  whose  negligence  made  the  loss  possible  must  bear  it. 
And  again,  in  many  if  not  all  of  the  States,  there  are  statutes 
that  give  to  the  evicted  covenantee  the  right  to  an  allowance  for 
the  value  of  his  permanent  improvements  as  against  the  successful 
claimant  of  the  premises.80 

"Phillips  v.  Smith,  Car.  Law  Rep.  (X.  C.)  475;  6  Am.  Dec.  542,  where  it 
was  said  that  nothing  could  l>e  more  unreasonable  than  to  compute  the  dam- 
ages in  a  manner  not  contemplated  by  the  parties  at  the  time  of  the  contract, 
and  which,  if  foreseen,  would  have  broken  off  their  negotiations.  The  cove- 
nantor is  not  compelled  to  pay  a  greater  amount  than  the  consideration  paid 
to  him,  because  he  is  held  to  have  contracted  with  reference  to  that  value, 
and  the  question  is  one  of  intention.  Lourance  v.  Robertson,  10  S.  C.  19; 
Ware  v.  Weatherell,  2  McC.  (S.  C.)  415. 

""If  the  vendee  does  not  choose  to  rely  on  the  common  covenants,  but  to 
l>e  secured  also  for  the  increase  in  value  of  the  land  and  any  improvements 
be  may  put  on  it,  let  him  insist  on  particular  covenants  expressly  guaran- 
teeing to  him  such  increase  and  improvements."  CARR.  J.,  in  Threlkold-  v. 
Kit/.hugh,  3  Leigh  (Va.),  462.  BHOXSON,  J.,  in  Kelly  v.  Dutch  Church,  2 
Hill  (N.  Y.),  116.  In  Xesbit  v.  Brown,  1  Dev.  Eq.  (N.  C.)  30,  it  was  held 
that  a  covenant  to  pay  in  case  of  eviction  double  the  purchase  money,  and  also 
all  damages  thence  accruing,  was  a  penalty  and  not  stipulated  damages,  and 
that  the  purchase  money  and  interest  only  could  l>e  recovered.  There  is 
nothing  in  the  case,  however,  to  show  that  the  parties  may  not  stipulate  for 
actual  damages  sustained  in  excess  of  the  purchase  money  and  interest. 

•Conrad  T.  Trustees,  04  Win.  258;  25  X.  \V.  Rep.  24. 

"In  Cox  v.  Strode.  2  Bibb  (Ky.),  278;  5  Am.  Dec.  60.1.  it  was  Raid  by  the 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       429 

If  the  covenantor  was  guilty  of  fraud  in  the  procurement  and 
execution  of  the  contract  of  sale,  and  the  fraud  shall  not  have  been 
waived  by  the  acceptance  of  a  conveyance  and  covenants  for  title 
with  knowledge  thereof,  the  covenantee  may  in  a  special  action  on 
the  case  for  the  deceit,  recover  damages  to  the  full  extent  of  any 
loss  he  may  have  sustained,  including  the  value  of  his  improve- 
ments and  the  increased  value  of  the  land.31  In  the  action  of 
covenant,  which  sounds  altogether  in  contract,  the  plaintiff  cannot 
introduce  evidence  of  fraud  on  the  part  of  the  vendor  for  the 
purpose  of  aggravating  the  damages.32 

The  value  or  purchase  price  agreed  upon  by  the  parties  is  the 
measure  of  damages  and  not  the  value  of  the  lands  at  the  time  of 
the  conveyance.  The  execution  of  the  conveyance  may  for  many 
reasons  be  postponed  or  omitted  until  long  after  the  contract  has 

court  on  this  point:  "So  far  as  the  increase  of  value  has  been  the  effect  of 
improvements  made  by  the  purchaser,  he  ought  to  be  remunerated,  but  jus- 
tice requires  that  this  remuneration  should  be  made  by  the  successful  claim- 
ant, for  nemo  debet  locupletari  aliena  jactura  is  a  maxim  of  universal  jus- 
tice adopted  and'  enforced  by  our  law.  If  the  purchaser  came  within  the 
statute  concerning  occupying  claimants,  the  legislature  has  provided  such  a 
compensation  to  be  made  by  the  successful  claimant  as  they  deem  just. 
*  *  *  If  he  wilfully  or  supinely  neglects  to  pursue  the  remedy  which  the 
law  has  given  against  the  successful  claimant,  he  ought  to  abide  the  loss,  and 
not  be  permitted  to  found  upon  his  own  negligence,  a  claim  to  an  additional 
compensation  against  the  seller." 

31  Bender  v.  Fromberger,  4  Call.  (Pa.)  444.    The  measure  of  damages,  where 
the  grantor  pointed  out  incorrect  boundaries,  inclosing  more  land  than  lie 
actually  owned  and  conveyed,  is  the  difference  between  the  value  of  the  land 
actually  conveyed,  and  of  that  inclosed  by  the  boundaries  pointed  out,  without 
regard  to  the  contract  price.     King  v.  Bressie    (Tex.  Civ.  App.),  32  S.  W. 
Rep.  729. 

32  2  Bl.  Com.  166;  Rawle  Covt.  §  159.     Carvill  v.  Jacks,  43  Ark.  439.     But 
see  May  v.  Wright,   1  Overt.    (Tenn.)    390,  an  action  on  a  covenant  of  war- 
ranty in  which  it  was  said  that  if  the  jury  found  that  the  covenantor  when 
he  sold  knew  that  he  had  no  title  to  the  land,  it  was  a  fraud,  and  that  the 
jury  might  give  such  damages  as  they  thought  would  make  the  covenantee 
whole.     See  also,  Eaton  v.  Hopkins,   (Fla.)   71  So.  922.     In  Madden  v.  Land 
Co.,  16  Idaho  59,  100  Pac.  358,  21  L.  R.  A.    (N.  S.)    332,  it  was  held  that 
the  grantor  was  guilty  of  constructive  fraud  in  executing  a  second  conveyance 
of  the  land  to  an  innocent  purchaser,  and  that  the  first  grantee  was  entitled 
to  recover  for  the  loss  of  his  bargain,  though  he  failed  to  protect  himself  by 
promptly  putting  his  deed  on  record. 


430  MAKKKTABLK    TITLE    TO    3EAL    ESTATE. 

been  completed  by  the  purchaser,  but  the  delay  in  that  respect  will 
not  entitle  him  to  a  larger  measure  of  damages.33 

In  an  action  on  the  warranty,  plaintiff  cannot  be  required  to 
prove  that  the  land  was  of  the  value  that  he  paid  for  it.*4 

Xominal  damages  only  for  a  breach  of  the  covenant  of  war- 
ranty can  be  recovered  against  one  who  conveyed  the  land  without 
consideration,  as  between  the  original  parties.35  Thus,  one  to  whom 
the  land  had  been  conveyed  by  direction  of  the  purchaser,  to  secure 
the  grantee  for  money  loaned  to  the  purchaser  with  which  to  pay 
the  purchase  price,  and  who,  after  repayment  of  the  loan,  recon- 
veyed  to  the  purchaser  with  covenant  of  general  warranty,  was 
held  liable  for  nominal  damages  only  upon  the  eviction  of  the 
purchaser  by  an  adverse  claimant.36  It  has  been  held,  however, 
in  a  case  in  which  a  money  consideration  was  stated  in  the  deed, 
the  real  consideration  being  love  and  affection,  that  the  damage* 
for  a  breach  of  the  covenant  of  warranty  must  be  measured  by  the 
consideration  stated.37  And  where  the  consideration  was  paid  in 
stock  of  a  fictitious  value,  the  actual  value  of  the  stock  on  the  day 
of  sale  was  held  to  be  the  measure  of  the  covenantee's  damages.38 
The  grantor  is  not  relieved  from  liability  on  his  covenant  of  war- 
ranty by  the  fact  that  ho  received  only  a  part  of  the  consideration, 

"But  see  Cummins  v.  Kennedy,  3  Litt.  (Ky.)  125;  14  Am.  Dec.  45,  the 
court  saying:  "The  general  rule  settled  by  a  current  of  authorities  is,  that 
as  the  conveyance  completes  the  sale,  the  value  of  the  land  conveyed,  at  the 
date  of  the  conveyance,  with  interest  and  costs,  forms  the  criterion  of  dam- 
ages; and  also  that  the  price  stipulated  is  the  best  evidence  of  that  value. 
And  where  the  parties  have  shown  that  price  in  the  conveyance  it  would  not 
perhaps  be  going  too  far  to  say  that  they  ought  to  be  concluded  by  it.  Hence, 
if  tin-  consideration  was  paid  long  before  the  date  of  the  deed,  still  if  it  is 
expressed,  it  would  fix  the  criterion,  though  the  land  when  conveyed  had 
greatly  risen  in  value." 

44  Roberts  v.  Mk>Fadden,  32  Tex.  Civ.  App.  47,  74  8.  W.  105;  Coleman 
v.  Luetcke  (Tex.  Civ.  App.)  164  S.  W.  1117. 

*\Wst  v.  W«-st,  76  N.  C.  45.  One  to  whom  a  deed,  absolute  on  its  face,  is 
executed  as  collateral  security  for  a  debt  due  to  a  third  person,  is  put  upon 
notice  of  the  character  of  the  transaction  by  the  recital  of  the  consideration, 
and  cannot  recover  as  a  buna  fide  purchaser  on  a  warranty  contained  in  the 
deed.  He  is  bound  to  know  that  he  has  received  such  consideration  u  it 
stated  in  the  dred.  Parke  v.  Chadwick,  8  W.  &  8.  (Pa.)  96. 

*We«t  v.  West,  76  N.  C.  45. 

"Hanson  v.  Huckner,  4  Dana   (Ky.),  254;  29  Am.  Dec.  401. 

"McOuffey  v.  Humes,  85  Tenn.  26;  1  8.  W.  Rep.  506. 


COVENANTS  OF   WARRANTY  AND  FOE  QUIET  ENJOYMENT.       431 

and  that  the  other  part  went  to  a  third  person,  who  acted  as  his 
agent  for  the  sale  of  the  premises.39  If  a  valuable  consideration 
be  in  fact  paid,  the  grantor  will  be  liable  upon  his  warranty  with- 
out regard  to  the  parties  receiving  the  consideration,  or  the  manner 
of  its  appropriation.40  And  the  fact  that  the  grantor  bought  the 
premises  and,  for  the  same  consideration  that  he  paid,  conveyed 
them  to  the  grantee  at  the  request  of  third  persons,  for  a  particular 
purpose,  will  not  relieve  him  from  liability  on  his  covenant.  If  a 
third  person  chooses  to  execute  a  covenant  of  warranty  under  such 
circumstances,  he  must  abide  the  consequences.41 

The  fact  that  the  land  was  bought  for  a  particular  purpose 
known,  to  the  vendor  can  make  no  difference  in  respect  to  the 
measure  of  damages  for  a  breach  of  the  covenant  of  warranty.42 
The  covenantor  may  show  in  mitigation  of  damages  that  a  tract 
of  land  to  which  he  had  no  title  was  by  mistake  included  in  the 
conveyance  by  him.43  Also,  that  the  covenantee  has  received  from 
the  adverse  claimant  by  way  of  refund,  taxes,  penalties,  etc., 
charges  upon  the  land  paid  by  the  covenantor,  which  he  would 
have  been  entitled  to  recover  from  such  claimant.44  In  some  cases 
it  has  been  held  that  damages  for  a  breach  of  covenants  for  title 
must  be  assessed  according  to  the  law  of  the  place  where  the 
granted  premises  lie ; 45  in  others,  according  to  the  rule  in  force 
in  the  State  in  which  the  action  is  brought  ;46  and  in  others,  accord- 
ing to  the  law  of  the  place  where  the  contract  was  made.47  The 
last  would  seem  to  be  the  better  rule,  at  least  more  just  and 
equitable  in  its  results,  since  it  is  a  fair  presumption  that  the 

39  Rash  v.  Jenne  (Oreg.),  37  Pac.  Rep.  538. 

40  Bloom  v.  Wolfe,  50  Iowa,  286. 

"Whatley  v.  Patten  (Tex.  Civ.  App.),  31  S.  W.  Rep.  60. 

41  Phillips  v.  Reichert,  17  Ind.  120;  79  Am.  Dec.  463.     Dimmick  v.  Lock- 
wood,  10  Wend.    (N.  Y.)    142. 

43  Leland  v.  Stone,  10  Mass.  459. 

"Dah'forth  v.  Smith,  41  Kans.  146;  21  Pac.  Rep.  168;  Stebbins  v.  Wolf,  33 
Kans.  765;  7  Pac.  Rep.  542. 

45Tillotson  v.  Pritchard,  60  Vt.  94;  14  Atl.  Rep.  302.  Succession  of  Cas- 
sidy,  40  La.  Ann.  827 ;  5  So.  Rep.  292. 

^Xichols  v.  Walter,  8  Mass.  243;  Smith  v.  Strong,  14  Pick.   (Mass.)    128. 

47Aiken  v.  McDonald,  (So.  Car.)  20  S.  E.  Rep.  796.  Looney  v.  Reeves, 
5  Kans.  App.  279;  48  Pac.  Rep.  606. 


432  MARKETABLE    TITLE    TO    REAL    ESTATE. 

parties  contracted  with  reference  to  the  law  of  the  place  where  the 
contract  was  made. 

In  a  case  in  which  the  grantor  and  a  third  person  executed  an 
instrument  obliging  themselves  to  satisfy  any  incumbrances  ujxm 
the  land,  and  the  grantee  was  evicted  under  an  incumbranee  which 
they  neglected  to  satisfy,  it  was  held  that  his  measure  of  damages 
was  the  value  of  the  land  at  the  time  of  the  eviction.  "  This," 
said  the  court,  "  is  not  a  covenant  as  to  the  state  of  the  title,  but 
an  agreement  to  do  certain  acts  for  the  plaintiff's  benefit  within 
a  specified  time.  For  the  breach  of  such  an  executory  contract, 
we  know  no  reason  why  the  plaintiff  should  not  be  allowed  to 
recover  such  damages  as  are  the  necessary,  natural  and  proximate 
result  of  the  breach  complained  of." 

The  failure  of  the  grantee  to  take  possession  of  the  estate  and 
I>erfeet  the  title  by  adverse  possession,  will  not  relieve  the  grantor 
from  liability  upon  his  warranty.4' 

The  grantee,  of  course,  may  show,  in  mitigation  of  damages, 
that  before  the  trial  he  had  acquired  the  outstanding  title,  and 
that  the  same,  by  virtue  of  his  warranty,  enured  to  the  benefit 
of  the  grantee.60 

In  the  case  of  an  exchange  of  lands,  the  measure  of  damages 
for  breach  of  the  covenant  of  warranty  is  the  value  of  the  land 
conveyed  in  exchange  by  the  covenantee.51 

It  will  l>e  seen  in  a  subsequent  chapter  of  this  work  that  a 
grantee  with  warranty  may,  when  sued  for  the  purchase  money, 
set  up  a  breach  of  the  warranty  as  a  defense."  So,  conversely, 
in  an  action  by  the  grantee  on  the  warranty  the  covenantor  may 
set  off  the  unpaid  purchase  money  against  the  plaintiffs  demand." 

The  plaintiff  cannot  have  substantial  damages  unless  he  proves 

^Manahan  v.  Smith,  10  Ohio  St.  384. 

"Graham  v.  Dyer  (Ky.),  29  S.  W.  Rep.  346   (not  officially  reported). 

"Looney  v.  Reeves.  5  Kan.  App.  279;  48  Par,  Rep.  406. 

"Wiggins  v.  Stephens,  (Tex.  Civ.  App.)  191  S.  W.  777.  Sec  ante,'  f  92, 
and  post,  |  167. 

Tost,  ch.  16. 

"Beecher  v.  Baldwin,  55  Conn.  419;  12  Atl.  Rep.  401.  The  court  said  that 
the  grantee,  in  claiming  -ul.-iant  ial  damages,  proceeded  upon  the  theory  that 
-In-  might  require  the  vendor  to  make  the  title  good,  in  which  event  -lie  would 
lie  obligated  to  pay  the  purchase  money. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       433 

the  amount  he  paid  for  the  land.     But  if  he  proves  a  breach  of 
the  warranty  he  is  entitled,  at  least,  to  nominal  damages.64 

§  165.  Rule  in  New  England  States.  In  the  States  of  Massa- 
chusetts,55 Maine,56  Vermont,67  Connecticut,58  and  Alabama,69  the 
covenantee  is  permitted  to  measure  his  damages  upon  a  breach  of 
the  covenant  of  warranty,  by  the  value  of  the  land  at  the  time  of 
his  eviction.  The  distinction  which  they  make  between  the  cove- 
nant of  warranty  and  the  covenant  of  seisin  is  that  the  latter 
covenant  is  broken  as  soon  as  made  if  the  covenantor  have  no  title, 
while  the  covenant  of  warranty  is  not  broken  until  eviction  under 
title  paramount;  and  that  the  parties  intend  that  the  damages 
shall  be  measured  by  the  value  of  the  land  at  the  time  when  the 
covenant  is  broken.60  If  the  eviction  is  constructive,  as  where  the 

M  Groom  v.  Allen,  146  Ga.  347,  89  S.  E.  199. 

55  Gore  v.  Brazier,  3  Mass.  543;  3  Am.  Dec.  182.  This  is  the  leading  case 
in  Massachusetts.  White  v.  Whitney,  3  Met.  (Mass.)  89;  Cecconi  v.  Hodden, 
147  Mass.  164;  16  N.  E.  Eep.  749.  In  this  case  the  covenantee  was  allowed 
for  improvements  made  by  him  after  the  suit  in  which  he  was  evicted  had 
been  begun,  the  improvements  having  been  made  in  good  faith. 

64  Swett  v.  Patrick,  12  Me.  1 ;  Hardy  v.  Nelson,  27  Me.  525 ;  Elder  v.  True, 
32  Me.  104. 

"Keeler  v.  Wood,  30  Vt.  242;  Farwell  v.  Bean,  82  Vt.  172,  72  Atl.  731; 
Drury  v.  Shumway,  1  D.  Chip.  (Vt.)  110;  1  Am.  Dec.  704.  In,  this  case  it 
was  also  held  that  any  amount  the  covenantee  may  have  recovered  from  the 
successful  claimant  for  improvements  must  be  deducted  from  the  damages.  In 
Park  v.  Bates,  12  Vt.  387;  36  Am.  Dec.  347,  it  was  said  by  the  court  that 
none  of  the  ruinous  consequences  attributed  to  the  rule  measuring  the  dam- 
ages by  the  value  of  the  land  at  the  time  of  the  eviction  had  been  experienced 
in  that  State. 

^Horsford  v.  Wright,  Kirby  (Conn.),  3;  1  Am.  Dec.  8.  This  is  one  of  the 
earliest  cases  upon  the  point.  It  merely  announces  the  rule  without  dis- 
cussing the  reasons  upon  which  it  is  founded.  Mitchell  v.  Hazen,  4  Conn. 
516;  10  Am.  Dec.  169;  Stirling  v.  Peet,  14  Conn.  245;  Butler  v.  Barnes,  61 
Conn.  399 ;  24  Atl.  Rep.  328. 

59 Wilder  v.  Tatum   (Ala.),  73  So.  833. 

«°  The  rule  measuring  the  damages  by  the  value  of  the  land  at  the  time  of 
the  eviction  was  recognized  in  Virginia  at  an  early  date,  though  not  expressly 
adopted.  Mills  v.  Bell,  3  Call  (Va.),  320,  obiter,  a  case  of  executory  contract. 
TUCKER,  J.,  in  Nelson  v.  Matthews,  2  Hen.  &  Munf.  (Va.)  164;  3  Am.  Dec. 
620.-  These  dicta  have  all  been  disapproved1  in  later  cases.  See  ante,  n.  21, 
p.  425.  Damages  for  the  value  at  the  time  of  eviction  were  also  allowed  or  the 
rule  approved  in  Guerard  v.  Rivers,  1  Bay  (S.  C.),  263,  and  Liber  v.  Par- 
sons, 1  Bay  ( S.  C. ) ,  19,  but  these  cases  were  overruled  by  Furman  v.  Elmore, 
2  Nott  &  McC.  (S.  C.)  189.  The  consideration  money  with  interest  has  since 

55 


434  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

coveiiantee  is  unable  to  get  possession  of  the  land  by  ejectment 
brought  for  that  purpose,  the  value  of  the  land  at  the  time  the 
action  of  ejectment  was  decided  against  the  plaintiff,  is  the  meas- 
ure of  his  damages.11 

An  exception  to  the  Xew  England  rule  giving  damages  for  the 
value  of  the  land  at  the  time  of  eviction,  is  made  in  a  case  where 
the  eviction  results  from  the  enforcement  of  a  mortgage  or  other 
lien,  and  in  which  the  covenantee  has  the  privilege  of  redeeming 
the  land  by  discharging  the  incumbrance  and  the  costs  of  suit. 
In  such  a  case  the  measure  of  his  damages  is  the  amount  required 
to  redeem  the  land.62  Were  this  not  so  the  covenantee  might 
recover  the  full  value  of  the  estate  as  damages,  and  then  repossess 
himself  of  the  estate  by  redeeming  it  with  a  much  smaller  sum 
of  money. 

The  New  England  rule  as  to  the  measure  of  damages  has  been 
pronounced  unsound  and  has  been  vigorously  assailed  both  by  text 
writers  and  by  the  courts  of  other  States.63  The  reasons  which 

been  made  by  statute  the  rule  of  damages.  Acts  1824,  p.  24;  Earle  v.  Middle- 
ton,  Cheves  (S.  C.),  127.  In  Clark  v.  Whitehead,  47  Ga.  516,  it  seems  that 
under  the  statutory  law  of  that  State  the  grantee  was  held  entitled  to  dam- 
ages for  the  value  of  the  land  at  the  time  of  trial  of  the  action  for  broach  of 
covenant.  In  Jones  v.  Shay,  72  Iowa,  237;  33  N.  W.  Rep.  650,  it  was  held 
error  to  award  damages  in  excess  of  the  purchase  money,  unless  the  plaintiff 
averred  and  proved  an  increase  in  the  value  of  the  premises. 

«  Park  v.  Bates,  12  Vt.  381 ;  36  Am.  Dec,  347. 

"Tuft  v.  Adams,  8  Pick.  (Mass.)  549;  White  v.  Whitney,  3  Met.  (Mass.) 
89;  Thayer  v.  Clemence,  22  Pick.  (Mass.)  490.  Compare  Lloyd  v.  Quimby, 
5  Ohio  St.  262. 

"See  the  cases  cited  ante,  note  21  p.  425.  Rawle  Covt.  §  165.  The  learned 
writer  says:  "A  vendor  when  making  them  (the  covenants)  never  dreams  of 
such  an  enlarged  liability  by  reason  of  his  purchaser's  improvements;  and  on 
the  other  hand  the  latter  takes  the  title  for  what  it  i-*  worth  at  the  time;  he 
makes,  by  his  contract,  the  purchase  money  the  measure  of  the  value  of  the 
title,  and  takes  security  by  means  of  covenants  in  that  amount  and  no  more. 
*  *  *  The  practical  application  of  the  rule  that  the  damages  are  nn  a- 
ured  by  the  value  at  the  time  of  eviction  may,  moreover,  work  injustice  in 
cases  where  the  property  may  have  depreciated  in  value,  and  in  particular 
where  that  depreciation  may  have  been  owing  to  the  neglect  or  other  fault 
of  the  purchaser.  In  case  he  has  received  a  covenant  for  -i-i-in  and  a  cov- 
enant for  quiet  enjoyment,  he  can  of  course  sue  upon  either,  or  if  he  sue  upon 
both  he  is  allowed  to  have  judgment  entered  upon  either.  If  the  property  is 
less  valuable  than  when  he  purchased  it,  he  elects  to  enter  judgment  upon  the 
nant  for  seisin  and  receives  the  consideration  money,  which  is  far  more 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       435 

they  urge  against  the  rule  seem  conclusive.  The  decisions  sup- 
porting that  rule  appear  to  have  been  founded  more  upon 
precedent  and  ancient  usage,  than  upon  any  presumed  intention 
of  the  parties,  with  respect  to  the  measure  of  recovery  upon  the 
covenant.64  It  is  not  to  be  denied,  however,  that  the  rule  limiting 
the  damages  to  the  consideration  money  will  in  some  cases  result 
in  hardship  and  injustice.  That  rule  has  been  adopted,  not  as  a 
complete  solvent  of  the  rights  of  the  parties  in  all  cases,  but  as 
the  best  that  could  be  devised  having  regard  to  the  difficulties  of 
the  subject,  and  as  the  least  calculated  to  produce  inequitable 
results.65 

§  166.  Assignee's  measure  of  damages.  If  the  action  on  the 
covenant  of  warranty  be  by  an  assignee  of  the  covenantee,  and  the 
consideration  paid  for  the  land  by  the  plaintiff  was  less  than  that 
paid  to  the  covenantor ;  that  is,  the  original  purchase  money,  it 
has  been  held  that  the  plaintiff  can  recover  as  damages  only  the 
purchase  price  which  he  paid.66  There  are  cases,  however,  which 

than  the  property  is  then  worth.  If,  however,  it  has  increased  in  value,  judg- 
ment is  entered  on  the  covenant  for  quiet  enjoyment."  In  Ware  v.  Weatherall, 

2  MlcC.  ( S.  C. )   246,  it  was  said  by  COLCOCK,  J. :    "  It  sounds  well  to  say  that 
if  a  man  be  deprived   of   a   thousand  dollars  worth   of   improvements  by   a 
defect  in  his  title,  he  who  sold  should  be  compelled  to  make  it  up.     But  I 
ask  if  it  is  not  increasing  the  calamities  of  life  to  make  men  answerable  for 
that  which  the  most  consummate  wisdom  and  incorruptible  integrity  cannot 
guard  against." 

64  See  the  remarks  of  PARSONS,  C.  J.,  in  Gore  v.  Brazier,  3  Mass.  545,  546; 

3  Am.  Dec.  182. 

*5Staats  v.  Ten  Eyck,  3  Caines  (N.  Y.),  Ill;  2  Am.  Dec.  254,  where  it  was 
said  by  KENT,  C.  J. :  "  To  find  a  rule  of  damages  in  a  case  like  this  is  a  work 
of  difficulty;  none  will  be  entirely  free  from  objection  or  will  not  at  times 
work  injustice."  McAlpin  v.  Woodruff,  11  Ohio  St.  130. 

^Mette  v.  Dow,  9  Lea  (Tenn.),  99.  In  this  case  the  court,  by  COOPER,  J., 
lucidly  observed:  "The  covenant  (warranty)  is  a  peculiar  one,  and  not  like 
an  ordinary  covenant  for  so  much  money.  It  is  rather  in  the  nature  of  a 
bond  with  a  fixed  sum  as  a  penalty,  the  recovery  on  which  will  be  satisfied 
by  the  payment  of  the  actual  damages.  Each  vendor  subject  to  this  rule  may 
be  treated  as  the  principal  obligor  to  his  immediate  vendee,  and1  as  the  surety 
of  any  subsequent  vendee  to  hold  him  harmless  by  reason  of  the  failure  of 
title;  and  the  ultimate  vendee  when  evicted  is  entitled  to  be  subrogated  to 
the  rights  of  his  immediate  vendor  against  a  remote  vendor  to  the  extent 
necessary  to  indemnify  him.  Such  a  vendee,  to  use  the  language  of  the 
Supreme  Court  of  North  Carolina,  sues  a  remote  vendor  on  the  covenant  to 
redress  his,  the  plaintiff's  own  injuries,  not  the  injuries  of  the  immediate 


436  MARKETABLE    TITLE    TO    REAL    ESTATE. 

adopt  the  contrary  view,  holding  that  the  value  of  the  premises  is 
conclusively  fixed  by  the  price  paid  to  the  original  covenantor, 
and  that  the  remote  grantee  is  entitled  to  recover  that  amount.67 
But  if  he  paid  more  than  the  original  purchase  money,  he  cannot 
recover  the  excess  on  the  original  covenantor's  warranty.  The 
measure  of  damages  for  which  the  covenantor  is  liable  cannot  be 
increased  by  a  transfer  of  the  land.68 

§  167.  True  consideration  may  be  shown.  The  consideration 
stated  in  the  conveyance  is  prima  facie  evidence  of  the  purchase 
price  of  the  land.  But  parol  evidence  is  admissible  to  show  the 
true  consideration,  whether  it  be  greater  or  less  than- -that  recited 
in  the  deed."  It  has  been  said  that  the  only  operation  of  the  con- 
vendee  of  Ruch  remote  vendor.  Accordingly,  that  court  held,  in  a  case  like 
the  one  before  us,  that  the  measure  of  damages  was  the  consideration  paid 
by  the  plaintiff  to  his  immediate  vendor,  with  interest,  and  not  the  considera- 
tion paid  by  such  vendor  to  the  defendant.  In  other  words,  the  damage* 
recovered  were  limited  to  the  actual  injury  sustained.  Williams  v.  Beeman, 
4  Dev.  (X.  C.)  483."  Phillips  v.  Smith,  1  Car.  Law  Rep.  475.  Whitzman 
v.  Hirsh,  3  Pick.  (Tenn.)  513;  11  fi.  W.  Rep.  421.  Moore  v.  Franken  field, 
25  Minn.  540.  In  Aiken  v.  McDonald,  (So.  Car.)  20  S.  E.  Rep.  796,  the 
greater  part  of  an  estate  in  the  premises  for  the  life  of  another  had  been 
enjoyed  by  the  original  covenantor,  but  the  value  of  the  entire  life  estate 
was,  nevertheless,  deducted  from  the  assignee's  damages.  In  Solberg  v. 
Robinson,  34  S.  D.  55,  147  N.  W.  87,  it  was  held  that  a  -remote  grantee  was 
entitled  to  recover  interest  on  his  damages  from  the  time  his  "  constructive 
possession  "  was  disturbed  by  notice  of  a  superior  title. 

*  Brooks  v.  Black,  68  Miss.  61;  9  So.  Rep.  332.  Lourence  v.  Robertson. 
10  So.  Car.  8.  Mischke  v.  Baughn,  52  Iowa,  528;  3  N.  W.  Rep.  543; 
Dougherty  v.  Duval,  9  B.  Mon.  (Ky.)  57.  Hollingsworth  v.  Mexia.  14  Tex. 
Civ.  App!  363;  37  S.  W.  Rep.  455;  Lewis  v.  Ross,  95  Tex.  358;  67  S.  W. 
Rep.  405. 

•Dickson  v.  Desire,  23  Mo.  166.  Crisfleld  v.  Storr,  36  Md.  150;  11  Am. 
Rep.  4SO.  Rogers  v.  Golson,  (Tex.  Civ.  App.)  31  S.  W.  Rep.  200.  Taylor  T. 
Wallace,  (Colo.)  37  Pac.  Rep.  962.  Hunt  v.  Hay,  140  N.  Y.  Supp.  1070. 
156  App.  Div.  138.  Where  the  purchaser  resold  the  premises  and  directed 
the  conveyance  to  be  made  to  the  pub-purchaser,  which  w«s  done,  and  the 
Mib-purchaser  was  evicted,  it  was  held  that  the  measure  of  his  damages 
agninst  the  grantor  was  the  price  paid  by  him  (plaintiff,  sub-purchaser)  to 
the  original  purchaser,  ami  not  that  which  the  latter  was  to  pay  to  the 
grantor.  Cook  v.  CuYtis,  68  Mich.  611;  36  N.  W.  Rep.  602. 

•Bingham  v.  Weiderwax,  1  Comst.  (NT.  Y.)  509;  McRoa  v.  Purmont,  16 
Wend.  (N.  Y.)  460;  Shepherd  v.  Little,  14  Johns.  (N.  Y.)  210:  Petrie  v. 
Folz,  54  N.  Y.  Super.  Ct.  223,  229.  Morse  v.  Shattuck,  4  N.  H.  229;  17  Am. 
Dec.  419;  Nutting  v.  Herbert,  36  N.  H.  127;  Estabrook  v.  Smith,  6  Gray 
(Mass.)  572;  66  Am.  Dec.  443.  Moore  v.  McKie,  5  Sm.  A  M.  (Miss.)  238. 


COVENANTS  OF  WAEKANTY  AND  FOR  QUIET  ENJOYMENT.       437 

sideration  clause  is  to  prevent  a  resulting  trust  in  the  grantor  and 
to  estop  him  to  deny  the  deed  for  the  uses  therein  mentioned.70 
Evidence  of  a  secret  understanding  between  the  covenantor  and 
the  covenantee,  by  which  the  liability  of  the  former  upon  the 
covenant  is  lessened,  cannot,  however,  be  received  as  against  an 
assignee  of  the  covenant,  that  is,  a  subsequent  purchaser  from  the 
covenantee.71  If  no  consideration  be  expressed  in  the  deed,  extrin- 
sic evidence  may,  of  course,  be  resorted  to  for  the  purpose  of 
showing  the  purchase  price.72  If  the  consideration  cannot  be  ascer- 
tained, the  value  of  the  land  at  the  time  of  the  conveyance,  with 
interest,  will  be  the  measure  of  damages.73  But  parol  evidence 

Swafford  v.  Whipple,  3  Gr.  (lo.)  261;  54  Am.  Dec.  49S;  Williamson  v.  Test, 
M  Iowa,  138;  Wachendorf  v.  Lancaster,  66  Iowa,  458;  23  N".  W.  Rep.  922. 
Barrett  v.  Hughey,  (Ark.)  15  S.  W.  Rep.  464.  Garrett  v.  Stuart,  1  McCord 
(S.  C.),  514.  Devine  v.  Lewis  (Minn.),  35  N.  W.  Rep.  711.  G.uinotte  v. 
Choteau,  34  Mo.  154;  Henderson  v.  Henderson,  13  Mo.  151.  Wilson  v. 
Shelton,  9  Leigh  (Va.),  342.  Holmes  v.  Seaman  (Neb.),  100  N.  W.  Rep. 
417;  Lloyd  v.  Sandusky,  95  111.  App.  553.  Bass  v.  Starnes,  108  Ark.  357, 
158  S.  W.  136;  Hanlon  v.  Glue -Co.,  53  Ind.  App.  504,  102;  X.  E.  48,  Martin 
v.  Gordon,  24  Ga.  533«.  In  this  case  the  real  consideration  was  much  less 
than  that  stated  in  the  deed.  In  Stark  v.  Olney,  #  Oreg.  88,  -the  consideration 
expressed  in  the  deed  was  $2,000,  but  the  plaintiff  recovered  only  $507.  In 
Staples  v.  Dean,  114  Mass.  125,  it  appeared  that  Sylvester,  not  being  the 
owner  of  a  lot,  sold  and  agreed  to  convey  it  to  Staples  for  about  $950. 
Sylvester  then  purchased  the  lot  from  the  real  owner,  Dean,  for  $450,  and 
caused  him  to  convey  it  to  Staples  with  covenant  of  seisin,  the  deed  ex- 
pressing a  consideration  of  $950.  The  title  having  failed,  Staples  brought  an 
action  on  the  covenant,  and  claimed  that  the  consideration  named  in  the 
deed  was  the  measure  of  his  damages.  The  defendant  Dean  was  permitted 
to  show  the  facts  in  the  case,  and  the  court  held  that  the  measure  of  dam- 
ages was  the  value  of  the  land  at  the  time  of  the  conveyance,  or,  at  the 
plaintiff's  election,  the  amount  actually  received  by  the  defendant,  $450. 
There  are  a  few  early  cases  holding  generally  that  the  consideration  of  a 
deed  cannot  be  inquired  into,  but  they  are  no  longer  regarded  as  authority. 
Among  others  may  be  named  Steele  v.  Adams,  1  Gr.  (Me.)  1;  Clarke  v. 
McAnulfy.  3  S.  &  R.  (Pa.)  367;  Schermerhorn  v.  Vanderheyden,  1  Johns. 
(N".  Y.)  139;  3  Am.  Dec.  304.  Of  course,  however,  parol  evidence  cannot  be 
received  to  show  that  a  deed  is  void  for  want  of  a  consideration.  Parol 
evidence  as  to  the  consideration  can  only  be  received  when  it  is  offered  for 
some  purpose  other  than  that  of  defeating  the  conveyance.  Betts  v.  Union 
Bank,  1  Harr.  &  Gill  (Md.),  175;  18  Am.  Dec.  283.  Wilt  v.  Franklin,  1 
Binney  (Pa.),  502;  2  Am.  Dec.  474. 

70Belden  v.  Seymour,  8  Conn.  304;  21  Am.  Dec.  661. 

71Greenvault  v.  Davis,  4  Hill   (N.  Y.),  647. 

"Smith  v.  Strong,  14  Pick.   (Mass.)    128. 

"Smith  v.  Strong,  14  Pick.   (Mass.)    128. 


438  MAKKETABLE    TITLE    TO    REAL    ESTATE. 

cannot  be  received  to  show  that  at  the  time  of  the  conveyance  the 
eovenantee  was  aware  of  the  objections  to  the  title  of  his  grantor, 
or  of  the  existence  of  incumbrances  upon-  the  property,  and  had 
verbally  agreed  that  in  case  of  an  eviction  there  should  be  no 
liability  upon  the  covenantor.74  It  is  competent,  however,  for 
the  grantor  to  show  by  parol  that  a  part  of  the  land,  to  which 
there  was  no  title,  had  been  included-  in*  the  deed  by  mistake,  and 
that  no  consideration  was  paid  for  it.  But  such  evidence  is  ad- 
missible only  in  mitigation  of  damages,  and  not  for  the  purpose 
of  negativing  a  breach  of  the  covenant.76 

If  the  consideration  be  paid  in  something  other  than  money,  the 
actual  value  of  the  consideration  so  received  will  be  the  measure 
of  the  covenantee's  damages.  Thus,  where  the  consideration  was 
paid  in  railroad  bonds,  worth  less  than  par,  the  measure  of  dam- 
ages was  held  to  be  the  actual  market  value  of  the  bonds  at  the 
time  of  the  payment;76  and  when  the  consideration- is  an  exchange 
of  lands,  the  value  of  the  land  received  by  the  covenantor  is  the 
measure  of  damages  for  the  loss  of  that  received  by  the  cove- 
nautee.77 

"Estabrook  v.  Smith,  6  Gray  (Mass.),  578;  46  Am.  Dec.  443.  Nutting  v. 
Herbert,  35  X.  H.  264.  Suydara-v.  Jones,  10  Wend.  (X.  Y.)  184;  25  Am.  Dec. 
5.32.  In  Collingwood  v.  Irwin.  3  Watts  (Pa.),  306,  it  was  held  that  the  de- 
fendant could  not  show  by  parol  that  at  the  time  he  executed  the  deed  he 
assigned  to  the  grantee  a  judgntent  against  a  third  person-,  which  the  grantee 
accepted  as  sole  security  for  the  title  and  agreed  never  t<(  hold  the  grantor 
liable  on  the  covenant.  And  in  Townsend  v.  Weld,  8  Mas».  146,  it  was  held 
that  parol  evidence  it*  inadmissible  to  show  that  the  eovenantee  was  aware  of 
the  defect  of  the  covenantor's  title  and  that  he  had  agreed  that  the  cove- 
nantor should  not  be  charged  in  the  event  of  an  eviction. 

"Rawle  Covta.  for  Title  (5th  ed.l,  $  174;  Lloyd  v.  Sandusky,  203  111.  621; 
68  X.  I..  154,  a  ease  in  \\hich  the  grantor  wa<*  permitted  to  show  that  the 
grantee  knew,  at  the  time  of  the  conveyance,  that  the  coal  and  minerals  under 
the  surface  had  been  previously  conveyed  away;  that  the  value  of  such  coal 
and  minerals  was  excluded  in  fixing  the  purchase  price,  and  that  an  excep- 
tion of  such  coal  and  minerals  had  been  omitted  from  the  conveyance  by 
mistake.  See,  also,  Rook  v.  Rook,  111  111.  App.  908. 

'•Montgomery  v.  Xorthern  Pac.  R.  Co.,  67  Fed.  Rep.  445.  Taylor  v.  Allen, 
131  Ga.  416,  62  8.  K.  201. 

"Howard  v.  Hurst,  156  Mo.  App.  205,  137  S.  W.  1,  where  held,  also,  that 
the  value  of  the  lands  a*  fixed  by  the  parties  at  the  time  of  the  exchange 
governs  in  an  action  for  breach  of  the  warranty. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       439 

§  168.  Measure  of  damages  where  the  covenantee  buys  in 
the  paramount  title.  The  law  does  not  require  the  covenantee  to 
submit  to  an  actual  eviction  by  legal  process  at  the  suit  of  the  real 
owner,  as  a  condition  precedent  to  the  recovery  of  damages  for 
the  loss  of  the  estate.  He  is  constructively  evicted,  and  his  right 
of  action  is  complete  if  he  yields  up  the  possession  upon  the 
demand  of  the  true  owner.78  Upon  the  same  principle  he  is  per- 
mitted to  buy  in  the  outstanding  title  and  to  recover  as  damages 
the  amount  necessarily  and  in  good  faith  expended  for  that  pur- 
pose.79 "  There  seems  to  be  no  difference  in  principle  between 
yielding  up  the  possession  to  him  who  owns  the  paramount 
title,  and  fairly  purchasing  that  title,  so  far  as  respects  the 
right  to  recover  damages  on  the  warranty."80  But  he  can  in 
no  case  recover  damages  in  excess  of  the  amount  paid  by  him  to 
the  adverse  claimant,81  or  in  excess  of  the  purchase  price  of  the 

"Ante,  §  148. 

79Mayne  Dam.  (Wood's  ech)  286;  Field  Dam.  378,  et  seq.  Rawle  Covt. 
§  192.  Smith  v.  Compton,  3  B.  &  Aid.  407.  Leffingwell  v.  Elliott,  10  Pick. 
(Mass.)  204.  Loomis  v.  Bedell,  11  N.  H.  74.  Spring  v.  Chase,  22  Me.  505; 
39  Am,  Dec.  505.  Turner  v.  Goodrich,  26  Vt.  709.  Sanders  v.  Wagner,  32 
N.  J.  Eq.  506.  Dale  v.  Shively,  8  Kans.  190;  McKee  v.  Bain,  11  Kans.  577. 
Lawton  v.  Howe,  14  Wis.  269.  Baker  v.  Corbett,  28  Iowa,  318,  obiter,  case  of 
executory  contract.  Weber  v.  Anderson,  73  111.  439.  Beaseley  v.  Phillips,  20 
Ind.  App.  182;  50  N.  E.  Rep.  488.  Leet  v.  Gratz,  92  Mo.  App.  422;  Withers 
v.  Bank,  104  Miss.  681,  61  So.  690;  Brooks  v.  Mohl,  104  Minn.  404,  116  N.  W. 
931,  124 -Am.  St.  Rep.  629,  17  L.  R.  A.  (X.  S.)  1195.  In  Lawless  v.  Collier, 
19  Mo.  480,  it  was  held  that  if  the  grantee  buys  in  the  adverse  title,  the 
price  paid  is  the  measure  of  his  damages  for  breach  of  the  covenant  of  seisin, 
but  if  he  assigned-  the  covenants  in  his  grantor's  deed  as  part  of  the  con- 
sideration for  the  adverse  paramount  title,  the  assignee  will  be  entitled  to  the 
full  amount  of  the  purchase  money.  And  in  Nolan  v.  Feltman,  12  Bush 
(Kv. )  119,  it  was  held  that  if  through  equities  derived  from  the  grantor, 
such  as  a  claim*  against  the  true  owner  for  improvements,  the  grantee  subjects 
the  premises  to  sale  and  buys  them  himself,  he  will  be  treated  as  purchasing 
for  the  grantor's  benefit,  and  can  only  recover  on  the  warranty  what  it  cost 
him  to  perfect  the*  title  in  this  way. 

80Donnell  v.  Thompson,  1.  Fairf.  «(Me.)    176;   25  Am.  Dec.  216. 

81  Farmers'  Bank  v.  Glenn,  68  N.  C.  39  and  cases  cited  in  note  79  above. 
Cox  v.  Henry,  32  Pa.  St.  18.  James  v.  Lamb  (Tex.),  21  S.  W.  Rep.  172. 
Bush  v.  Adams,  22.  Fla.  177;  Herron  v.  Barbour,  (Okl.)  182  Pac.  243;  Brown 
v.  Thompson,  81  S.  C.  380,  62  S.  E.  440;  Waggener  v.  Howsley,  104  Ky.  113, 
175  S.  W.  4;  Allen  v.  Miller,  99  Miss.  75,  54  So.  731.  Where  the  outstanding 
title  was  gotten  in  by  the  husband  of  the  covenantee,  it  was  held  that,  by 
reason  of  his  privity  with  her,  she  was  estopped  from  claiming  any  greater 


440  MARKETABLE    TITLE   TO    REAL    ESTATE. 

land.83  Prima  facie  the  covenantee  has  a  right  to  recover  damages 
to  the  amount  of  the  consideration  expressed  in  the  deed.  It  de- 
volves upon  the  defendant  to  show  that  the  covenantee  got  in  the 
outstanding  title  at  a  price  less  than  that  sum.83  The  right  of  the 
covenantee  to  recover  is  not  affected  by  the  fact  that  he  bought  up 
the  title  after  the  commencement  of  his  action  upon  the  warranty.84 
And  he  is  not  only  en-titled  to  recover  the  sum  paid  to  the  holder  of 
the  better  title,  but  he  may  have  back  other  necessary  expenses 
incurred  in  acquiring  the  right  of  the  true  owner.85  But  while  the 
covenantee  may  buy  in  the  paramount  title  he  does  so  at  his  own 
risk,  and  the  burden  devolves  upon  him  to  show  that  the  title  so 
acquired  is  one  to  which  he  must  have  inevitably  yielded,88  and 
that  he  paid  value  therefor.87  The  rule  in  this  respect  is  the 
same  as  that  which  applies  in  case  of  a  voluntary  surrender  of  the 
premises  to  the  adverse  claimant. 

The  right  to  buy  in  the  paramount  title  is  the  privilege  and  not 
the  duty  of  the  covenantee.  Therefore,  his  refusal  to  purchase 
the  title  when  offered  to  him  on  moderate  terms  cannot  be  shown 
in  defense  of  his  action  on  the  warranty.88 

The  rule  that  the  covenantee  can  have  credit  only  for  the 
amount  paid  by  him  to  get  in  the  outstanding  title,  arid  that  the 
title  so  acquired,  except  to  this  extent,  enures  to  the  benefit  of 
the  grantor,  has  been  held  not  to  apply  where  the  subject  of  the 
contract  was  public  land  title  to  which  hud  never  boon  divested 
from  the  State.  The  reason  for  this  doctrine  is  that  the  public 

amount  of  damages  than  what  he  paid  to  get  in  the  title.  Wade  v.  Barlow, 
99  Mis*.  33,  54  So.  662. 

"Elliott  v.  Thompson,  4  Humph.  (Tenn.)  98.  MrQary  v.  Hastings,  39 
Cal.  360;  2  Am.  Rep.  456.  Richards  v.  Iowa  Homestead  Co..  41  Iowa.  .S()4 : 
24  Am.  Rep.  74.1.  Clapp  v.  Herdman,  25  111.  App.  509.  Williams  v.  Thomas, 
21  Ky.  L.  Rep.  1228;  54  S.  W.  Rep.  824. 

"Hunt  v.  Orwig,  17  B.  Mon.   (Ky.)    73;  66  Am.  Dec.  144. 

••LHlii.trwcll  v.   Klliott.  10  Pick.   (Mass.)   204;    19  Am.  Dec.  343. 

•Dillahunty  v.  Little  Rock,  etc.,  R.  Co.,  51)  Ark.  099;  27  S.  W.  Ri-p.  1002, 
and  2.8  8.  W.  Rep.  657.  See,  generally,  the  cases  cited,  ante,  this  section. 

" Richards  v.  Iowa  Homestead  Co.,  44   Iowa.  :«U :  24  Am.  Rep.  745. 

"Waggoner  v.  Howgley,  164  Ky.   11  .V.    17:.  S.  \V.  4. 

•Norton  v.  Babcock,  2  Met.  (Mass.)  510.  Buck  v.  Clements,  10  Ind.  132. 
Lloyd  v.  Quimby,  5  Ohio,  265.  Stewart  v.  Drake,  4  Halst.  (N.  J.)  143. 
Miller  v.  Halsey,  2  Or.  (N.  J.  L.)  48.  Sanders  v.  Wagner,  82  N.  J.  Eq.  506. 


COVENANTS  OF  WARRANTY  AND  FOE  QUIET  ENJOYMENT.       441 

lands  are  not  a  lawful  subject  of  private  contract,  and  an 
attempted  conveyance  thereof  by  one  private  person  to  another 
passes  no  interest  whatever,  and  does  not  create  the  relation  of 
vendor  and  vendee,  and,  therefore,  cannot  be  held  to  furnish  a 
consideration  for  the  purchase  price  of  the  premises.89  In  such  a 
case  the  rule  that  the  purchaser  cannot  deny  the  vendor's  title 
does  not  apply,  even  though  the  grantee  knew  that  the  title  was 
in  the  government  when  the  deed  was  made,  and  had  himself  at 
that  time  taken  steps  to  acquire  the  lands  as  a  homestead.90  There 
is,  however,  a  conflict  of  authority  upon  this  point.91  In  a  case 
in  which  the  contract  was  executory,  the  supreme  court  of  the 
United  States  held  that  the  purchaser,  who  perfected  the  title 
by  making  entry  of  the  land  after  he  discovered  the  invalidity 
of  -a  patent  under  which  his  vendors  claimed,  could  recover  only 
the  amount  paid  by  him  in  obtaining  a  patent.  The  court  held, 
also,  that  having  undertaken  to  defeat  the  title  of  his  vendors  by 
claiming  the  land  as  his  own,  he  could  not  recover  the  costs  of 
entering  and  surveying  the  land,  as  he  might  have  done  if  he  had 
brought  an  action  affirming  the  contract,  instead  of  attempting  to 
rescind.92  There  would  seem  to  be  no  reason  why  the  principles 
of  this  decision  should  not  apply  equally  to  a  case  in  which  the 
contract  had  been  executed  by  a  conveyance,  and  the  grantee  seeks 
to  recover  on  the  covenants  for  title. 

The  covenantee  cannot  recover  money  which  he  paid  out  to 
extinguish  the  paramount  title,  unless  the  payment  had  that  effect ; 
so  held  in  a  case  in  which  the  outstanding  interest  was  vested  in 
minors,  and  the  value  of  such  interest  was  paid  to  their  guardian 

*9Lamb  v.  James,  67  Tex.  485;  29  S.  W.  Rep.  647,  citing  Wheeler  v.  Strifes, 
28  Tex.  240 ;  Rogers  v.  Daily,  46  Tex.  582 :  Palmer  v.  Chandler,  47  Tex.  333 ; 
Houston  v.  Dickinson,  16  Tex.  81.  See,  also,  Kans.  Pac.  R.  Co.  v.  Dunmeyer, 
19  Knns.  543.  Barr  v.  Greeley,  52"  Fed.  Rep.  926,  obiter;  Montgomery  v. 
Northern  Pac  R.  R.  Co.,  67  Fed.  Rep.  445.  Spier  v.  Lanman,  27  Tex.  205. 
(Compare,  Ellis  v.  Crossley,  119  'Fed.  Rep.  779.) 

90 Dillahunty  v.  Littte  Rotk,  etc.,  R.  Co.   (Ark.),  27  S.  W.  Rep.  1002. 

91  Post,  §§  202,  22fo.     Holloway  v.  Miller,  84  Miss.  776;   36  So.  Rep.  531. 

92 Galloway  v.  Finlay,  12  Pet.  (U.  S.)  264.  Thredgill  v.  Pintard,  12  How. 
(U.  S.)  24. 

56 


442  MAKKETABLE    TITLE    TO    HEAL    ESTATE. 

under  an  order  of  court  to  convey  the  interest  of  his  wards  to  the 
covenantee,  the  court  having  no  power  to  enter  such  an  order.93 
§  109.  Measure  of  damages  for  loss  of  term.  The  rule  that 
the  covenantee  upon  eviction  is  not  entitled  to  damages  for  the 
increased  value  of  the  land,  has  been  held  in  New  York  and  else- 
where not  to  apply  in  case  of  a  breach  of  a  covenant  for  quiet 
enjoyment  contained  in  a  lease,  the  lessee  in  case  of  eviction  by 
title  paramount  being  held  entitled  to  damages  for  the  value  of 
his  unexpired  term  over  and  above  the  rent  reserved."  A  similar 

••  Leet  v.  Gratz,  92  Mo.  App.  422. 

"Clarkson  v.  Skidmore,  46  N.  Y.  297.  Clark  v.  Fisher,  54  Kans.  403;  38 
Pac.  Rep.  493.  Fritz  v.  Puscy,  31  Minn.  368;  18  X.  W.  Rep.  94.  Wetzel  v. 
Richcreek  (Ohio),  40  X.  E.  Rep.  1004.  Sheets  v.  Joyner  (Ind.),  38  N.  E. 
Rep.  830.  Damage*  for  the  value  of  the  unexpired  term  over  and  above  the 
rent  reserved  were  allowed  in  Mack  v.  Patchin,  42  X.  Y.  167;  1  Am.  Rep. 
506  (1870).  The  decision,  however,  seems  to  have  been  rested  largely  upon 
the  want  of  good  faith  in  the  lessor  and  his  connivance  at  the  eviction  of  the 
lessee*  by  foreclosure  of  a  mortgage  on  the  demised1  premises.  (See  the  com- 
ments on  this  decision1  in  Lannigan  v.  Kille,  97  Pa.  St.  120;  39  Am.  Rep. 
979.)  The  case  has  been  much  cited,  and  justifies  the  following  copious 
extract  from  the  opinion  of  EARLE,  C.  J. :  "Ordinarily  in  an  action  against 
the  vendor  of  rfa\  estate  for  breach  of  the  covenant  of  warranty  the  vendee 
can  recover  only  the  consideration  paid  and  interest  for  not  exceeding  six 
years;  and  when  the  contract  of  sale  is  executory,  no  deed  having  been  given, 
in  cases  where  no  part  of  the  purchase  money  has  been  paid,  the  vendee 
can  recover  only  nominal  damages;  and  in  cases  where  the  purchase  money 
has  been*  pa  id,  he  can  recover  the  purchase-money  interest  and  nominal  dam- 
ages. In  an  action  by  the  lesst'e  against  the  lessor  for  breach  of  the  covenant 
for  quiet  enjoyment,  the  lessor  can  ordinarily  recover  only  such  rent  as  he 
has  advanced,  and  such  inesne  profits  as  he  is  liable  to  pay  over;  and  in  cases 
where  the  lessor  is  sued  for  a  breach  of  a  contract  to  give  a  lease  or  to  give 
|>i.--rv-ioii,  ..nliiiiirily  tin-  Ir--.cc  r;ni  iivuvcr  only  nominal  il;m>:iL'>--  :unl  -»nir 
incidental  expenses,  but  nothing  for  the  value  of  his  lease.  These  rules, 
however  much  they  may  be  criticised,  must  be  regarded  as  settled  in  this 
State.  But  at  an  early  day  in  England*  and  in  this  country  certain  cases 
were  declaretl  to  be  exceptions  to  these  rules,  or,  more  properly  speaking,  not 
to  be  within  them;  as  if  the  vendor  is  guilty  of  fraud,  or  can  convey,  but 
will  not,  either  from  pervcrseness  or  to  secure  a  better  bargain;  or  if  he 
has  covenanted  to  convey  when  he  knew  he  had  no  authority  to  contract  to 
convey;  or  where  it  is  in  his  power  to  remedy  a  defect  in  the  title  and  he 
refuse*  or  neglects  to  do  HO;  or  when  he  refuses  to  incur  expen-vea  which 
would  enable  him  to  fulfill  In-  contract.  In  all  these  cases  the  vendor  or 
le.sHor  is  liifl.lr  to  the  vendee  or  lessee  for  the  loss  of  the  bargain  under  rules 
iinalogous  to  those  applied  in  the  sale  of  personal  property.  In 

i his  cane  the  defendant  resided  in  Buffalo,  where  the  real  estate  was  located, 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       443 

rule  has  been  applied  in  England 95  in  such  cases.  A  different  rule 
formerly  prevailed  in  New  York;  the  earlier  cases  hold  that  the 
rent  reserved  for  the  residue  of  the  unexpired  term  is  the  measure 
of  the  lessee's  damages.96  The  late  cases  would  seem  to  establish 
the  better  doctrine.  They  proceed  upon  the  ground  that  the  rule 
caveat  entptor  does  not  apply  as  between  lessor  and  lessee.  It  is 
not  customary  for  the  lessee  to  examine  the  title,  even  if  he  were 
allowed  to  do  so.  It  may  be  observed,  too,  that  no  very  serious 
consequences  can  flow  from  a  rule  that  gives  the  lessee  the  benefit 
of  the  actual  value  of  the  term,  for  it  is  but  seldom  that  the  annual 

and  he  owned  the  real  estate  at  the  time  he  made  the  lease;  and,  in  the 
absence  of  any  proof  to  the  contrary,  he  must  be  presumed  to  have  known 
of  the  mortgages  upon  the  real  estate  at  the  time  he  made  the  lease.  He  is, 
therefore,  within  the  rule  of  law  above  alluded  to,  liable  to  the  damages 
awarded  against  him,  because  he  gave  the  lease  knowing  of  the  defect  in  his 
title  *  When  he  gave  this  lease,  if  he  acted  in  good  faith,  he  must 

have  intended  in  some  way  to  -have  taken  care  of  these  mortgages;  and 
because  he  did  not  do  so,  having  the  ability,  so  far  as  appears,  to  do  so,  he 
should  be  held  liable  to  the  damages  recovered.  He  not  only  failed  to  do 
his  duty  to  the  plaintiff  in  any  of  the  respects  here  indicated,  but  went 
actively  to  work  to  remove  him  from  the  premises,  and  succeeded  in  doing 
so."  In  McAllister  v.  Landers,  70  Cal.  79;  11  Pac.  Rep.  105,  where  a  lessee 
was  evicted  under  judgment  in  favor  of  one  having  older  title,  it  was  held 
that  his  damages  for  breach  of  the  covenant  for  quiet  enjoyment  could  not 
be  less  than  the  judgment  for  damages  and  costs  against  himself. 

95  Williams  v.  Burrell,  1  Com.  B.  402;  Lock  v.  Furze,  19  Com.  B.  (X.  S.) 
96;  S.  C.  on  appeal,  L.  R.,  1  C.  PI.  441;  Rolph  v.  Crouch,  L.  R.  3  Exch.  44. 

98  Kelly  v.  Dutch  Church,  2  Hill  (N~.  Y.),  105;  Kinney  v.  Watts,  14  Wend. 
(N.  Y.)  38.  In  Moak  v.  Johnson,  1  Hill  (N.  Y.),  99,  the  rule  established 
by  these  cases  seems  to  have  been  reluctantly  admitted.  The  same  rule  has 
been  announced  in  other  States.  Lanigan  v.  Kille,  79  Pa.  St.  120;  39  Am. 
Rep.  797.  McAlpine  v.  Woodruff,  11  Ohio  St.  120.  Lanigan  v.  Kille,  supra, 
was  a  case  of  great  hardship. .  A  lessee  had  erected  extensive  and  costly 
improvements  for  mining  purposes  on  the  demised  premises  under  an  agree- 
ment by  which  he  had  the  right  to  rtemove  the  improvements  at  the  end  of 
the  term.  After  some  years'  enjoyment  of  the  estate  the  lessee  was  evicted 
by  the  true  owner.  After  the  eviction,  in  an  action  by  the  latter  against  the 
lessor  for  mesne  profits,  the  defendant  (lessor)  was  allowed  the  value  of  the 
improvements  as  a  set-off  against  the  plaintiff's  demand.  The  lessee  than 
brought  an  action  on  his  implied  covenant  for  quiet  enjoyment,  claiming 
damages  for  the  increased  value  of  the  term  by  reason  of  the  improvements. 
The  court  held  that  the  consideration,  that  is,  the  rent  reserved,  was  the 
measure  ~of  the  lessee's  damages,  and  that  as  the  improvements  were  to  be 
the  property  of  the  lessee  at  the  end  of  the  term  they  could  not  be  treated  as 
the  consideration  of  the  lease,  andi  the  only  rent  reserved  being  a  royalty, 
•the  plaintiff  was  entitled  to  no  more  than  nominal  damages. 


444  MAEKETABLE    TITLE    TO    REAL    ESTATE. 

value  of  the  premises  is  found  to  be  in  excess  of  the  rent  reserved ; 
and  leases  are  for  the  most  part,  of  short  duration  in  localities 
where  the  rental  value  of  the  property  is  likely  to  increase. 

If  the  lessee  is  liable  to  the  true  owner  for  mesne  profits,  he 
may  recover  back  the  rent  he  has  paid  to  the  lessor,  as  damages 
for  breach  of  the  covenant  for  quiet  enjoyment.97  It  seems  that, 
if  he  has  paid  no  rent,  he  can  only  recover  nominal  damages  -in 
case  of  eviction,  with  costs  incurred  in  defending  the  title.98 

A  purchaser  who  pays  an  annual  ground  rent  instead  of  a  sum 
in  gross  will,  if  deprived  of  the  premises  by  the  eviction  of  the 
lessor,  his  heirs  or  Assigns,  be  absolved  from  the  payment  of  the 
rent  in  toto."  If  he  be  deprived-  of  a  part  of  the  premises,  or  pay 
off  an  incumbrance  of  less  amount  than  the  ground  rent,  he  will 
be  entitled  to  an  abatement  of  the  rent  for  such  time  as  shall  be 
sufficient  for  his  indemnity.1 

§  170.  Measure  of  damages  on  eviction  from  part  of  the  land. 
If  the  covenantee  be  evicted  from  part  only  of  the  warranted 
premises,  the  measure  of  his  damages  will  be,  not  the  average  price 
paid  per  acre  for  the  whole  tract,  but  such  a  proportion  of  the 
whole  consideration  paid  as  the  value  of  the  part  to  which  the 
title  fails  bore  at  the  time  of  the  purchase  to  the  whole  purchase 
price.2  The  rule  is  the  same  whether  the  action  be  for  breach  of 

"Kelly  v.  Dutch  Church,  2  Hill   (X.  Y.),  105. 

"Moak  v.  Johnson,  1  Hill   (X.  Y.),  99. 

*  Franciseus  v.  Reigart,  4  Walts   (Pa.),  116. 

1  Garrison  v.  Moore,  1  Phila.  (Pa),  282. 

'Sedg.  Dam.  (8th  e<t.)  112;  Rawle  Covt.  (5th  ed.)  «  187.  Morris  v. 
Phelpe,  5  Johns.  (X.  Y.)*,  49  56;  4  Am.  Dec.  323;  Guthrie  v.  Pugslry,  12 
Johns.  (N.  Y.),  126;  Giles*  v.  Dugro,  1  Direr  (X.  Y.),  331;  Adams  v.  Conovor. 
22  Hun  (N.  Y.),  424;  afTd.,  S7  X.  Y.  422;  41  Am-.  Rep.  381.  Corn-pare  Mohr 
v.  Pa'rmpW,  43  N.  Y.  Super.  Ct.  320,  wheni>  it  is  said  that  "  the  damages  are 
limited  to  a  sum  which  bears  to  the  whole  consideration  of  the  convo; 
the  same  ratio  which  the  size  of  the  part  of  the  premises  as  to  which  there 
is  a  failure  of  title  bears  to  the  size  of  the  entire  tract  attempted  to  be 
convoyed."  This  seems  -to  leave  the  relative  value  of  tlie  part  lost  out  of 
consideration.  Stahley  v.  Irvine,  8  Barr.  (Pa.).  500.  In  Terry  v.  Drabenstadt, 
68  Pa.  St.  400,  it  was  held  that  if  the  covenantee  was  evicted  of  onc-tliin! 
of  the  land  by  a  widow  claiming  dower,  the  measure  of  his  damages  will  IHJ 
the  value  of  the  willow's  lift-  interest,  taking  the  pun-ha*>  money  as  the 
basis  of  the  c-tim.ite.  \\Yber  v.  Anderson.  73  111.  43!l ;  \\ailliams  v.  Inno*s 
4  111.  App.  640.  Lloyd  v.  Sandmky,  203  111.  621;  8*  X.  K.  Hep.  l.U. 
Hynes  v.  Packard,  92  Tex.  44;  45  3.  W.  Rep.  562.  Hoffman  v.  Kirby,  l.'iU 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       445 

the  covenant  of  seisin  or  the  covenant  of  warranty.  Of  course, 
there  is  no  room  for  the  application  of  this  rule  where  the  estate 
lost  consists  of  an  undivided  interest.  One  undivided  moiety  can 

Gal.  26;  68  Pac.  Rep.  321.  Messer  v.  Oestrich,  52  Wis.  694;  10  N.  W. 
Rep.  6.  If  the  part  lost  have  valuable  improvements  on  it,  the  value  of 
that  part  including  the  improvements-  will  be  the  measure  of  damages.  Semple 
v.  Wharton,  68  Wis.  626;  32  N.  W.  Rep.  690,  correcting  an  inadvertent  mis- 
statement  of  the  rule  in  Mlesser  v.  Oestrich,  supra.  Ela  v.  Card,  2  X.  H. 
175;  9  Am.  Dec.  46;  Partridge  v.  Hatch,  18  N.  H.  494.  The  rule  as  stated 
in  the  head  note  to  this  case  is  misleading,  and  is  not  sustained  by  the 
opinion.  Winnipiseogee  Paper  Co.  v.  Eaton,  65  N.  H.  13;  18  Atl.  Rep.  171. 
Wlneeler  v.  Hatch,  12  Me.  389;  Blanchard  v.  Blanchard,  48  Me.  174.  Cornell 
v.  Jackson,  3  Gush.  (Mass.)  506;  Lucas  v.  Wilcox,  135  Mass  7.7.  Hubbard 
v.  Norton,  10  Conn.  422.  Humphreys  v.  McClenachan,  1  Munf.  (Va.J  493; 
Crenshaw  v.  Smith,  5  Munf.  (Va..)  415.  Butcher  v.  Peterson,  26  W.  Va. 
447;  53  Am.  Rep.  89.  But,  in  Kelly  v.  Price,  22  W.  Va.  247,  it  was  said 
that  the  compensation  should  be  allowed  at  the  rate  of  the  average  price 
paid  for  the  wholte  tract.  Phillips  v.  Reichert,  17  Ind.  120;  79  Am.  Dec. 
463;  Hoot  v.  Spade,  20  Ind.  326.  Brandt  v.  Foster,  5  Iowa,  287.  Wallace 
V.  Talbot,  1  McCord  (S.  C.),  466.  Dickens  v.  Shepherd,  3  Mur.ph.  (N.  C.) 
526.  Grant  v.  Hill,  (Tex.  -Civ.  App.),  30  S.  W.  Rep.  952.  Griffin  v.  Reynolds, 
17  How.  (U.  S.)  609.  Dubay  v.  Kelly,  (Mich.)  100  N.  W.  Rep.  677; 
Loiseau  v.  Threlstad,  14  S.  Dak.  257;  85  N.  W.  Rep.  189;  West  Coast  Mfg. 
Co.  v.  West  Coast  Imp.  Co.,  31  Wash.  610,  72  Pac.  Rep.  455;  Southern 
Wood  Kfg.  Co.  v.  Davenport,  50  La  521;  23  So.  Rep.  448.  Morris  v. 
Phelps,  supra,  is  the  leading  case  on  this  point.  There  it  was  held  that 
where  there  was  a  want  of  title  only  as  to  part  of  the  land  conveyed,  the 
damages  ought  to  b'e  apportioned  -to  the.  measure  of  value  between  the  land 
lost  and  the  land  preserved,  and  not  according  to  the  number  of  acres  lost 
and  the  number  preserved.  "  Suppose,"  said  Chief  Justice  KEXT,  "  a  valu- 
able stream  of  water  with  expensive  improvements  upon  it,  with  ten  acres 
of  adjoining  barren  land,  was  sold  for  $10,000,  and  it  should  afterwards 
appear  that  the  title  to  the  stream  with'  the  improvements  on  it  failed, 
but  remained  good  as  to  the  residue  of  the  land,  would  it  not  be  unjust 
that  the  grantee  should  be  limited  in  damages  under  his  covenants  to  an 
apportionment  according  to  the  number  of  acres  lost,  when  the  sol'e  induce- 
ment was  defeated,  and  the  whole  value  of  the  -purchase  had  failed?  So, 
on  the  other  hand,  if  only  the  title  to  the  nine  barren  acres  failed,  the  vendor 
would  feel  the  weight  of  extreme  injustice,  if  he  was  obliged  to  refund  nine- 
tenths  of  the  consideration."  In  Major  v.  Dunnavant,  25  111.  234,  the  con- 
sideration money  embraced  two  tracts  of  land,  one  of  two  hundred  and  the 
other  of  eighty  acres.  The  title  to  the  eighty-acre  tract  failed.  "Assuming," 
said  the  court,  "  that  the  proof  shows  that  the  two  hundred  acres  were  worth 
$5.000,  and  the  80  acres  were  worth  $100,  and  the  price  paid  for  the  whole 
was  $6,000,  then  there  was  the  sum  of  $900  paid  for  the  whole  purchase 
more  than  it  was  worth,  and  this  loss  must  be  apportioned  to  the  two  tracts 
according  to  their  actual  values  respectively.  Thus,  dividing  the  $900  into 


MARKETABLE    TITLE    TO    REAL    ESTATE. 

be  of  no  greater  value  than  the  other.  In  such  a  case,  the  damages 
will  be  in  such  proportion  to  the  entire  consideration  as  the  undi- 
vided interest  hears  to  the  entire  estate  in  the  land.8  It  has  been 
held,  however,  that  the  rule  limiting  damages  to  the  actual  value 

.">!  parts  the  tract  worth  $5,000  would  l»ear  50  parts  of  it,  and  the  tract 
worth  $100  one  part,  and  by  this  amount  would  the  actual  value  of  the 
SO-acre  tract  be  increased  for  the  purpose  of  ascertaining  how  much  was  paid 
in  the  purchase  for  this  tract,  and  by  adding  to  this  sum  the  interest  upon  it 
the  amount  of  the  damages  for  the  breach  of  the  covenant  would  be  ascer- 
tained." In  Sear*  v.  Stinson,  3  Wash.  St.  615,  the  following  rule  was  laid 
down:  "  The  jury,  assuming  the  value  of  the  whole  tract  to  l>e  the  contract 
price,  must  find  how  much  less  than  the  contract  price  the  land  was  worth 
at  the  time  of  the  sale  by  reason  of  the  deficiency,  and  that  will  be  the  plain- 
tiff's damages."  In  Wright  v.  Nipple,  92  Ind.  314,  it  was  stated  that  the 
measure  of  damages  for  the  loss  of  one-third  of  the.  land  was  one-third  of  the 
purchase  money,  but  the  part  to  which  the  title  failed  in  that  case  was  an 
undivided  moiety,  and  the  case,  therefore,  cannot  be  regarded  as  establishing 
in  that  State  a  rule  different  from  that  stated  in  the  text.  The  same  state- 
ment lias  been  made  elsewhere,  but  it  did  not  appear  that  one  part  of  the 
land  was  more  valuable  than  the  other,  and  the  question  of  damages  for  the 
relative  value  was  not  before  the  court.  King  v.  Kerr,  5  Ohio,  160;  22  Am. 
Dec.  777. 

In  Kentucky  it  is  held  that  the  measure  of  damages1  for  the  portion  lost 
is  the  fair  market  value  of  that  portion  "considered  with  reference  to  the 
whole  portion.''  Burkholder  v.  Farmers'  Bank,  23  Ky.  L.  Rep.  2449;  67 
S.  W.  Rep.  832.  In  Kempner  v.  Lumber  Co.,  20  Tex.  Civ.  Appu  307.  49 
S.  W.  Rep.  412,  the  part  to  which  the  title  failed  was  much  inferior  in 
value  to  the  rest  of  the  land,  and  would  not  have  been  purchased  but  that 
the  seller  refused  to  sell  a  part  only  of  the  tract,  and  insisted  upon  the  same 
price  per  acre  for  the  whole  tract.  It  was  held  that  the  measure  of  damages 
was  the  purchase  price,  without  reference  to  the  actual  value  of  the  part  lost. 

Krcrnt  Cases.  Helton  v.  Asher,  135  Ky.  751;  123  S.  W.  285.  Sullivan  v. 
Hill,  33  Ky.  L.  R,  962;  112  S.  W.  564;  Brawley  v.  Copelin,  106  Ark.  256; 
153  S.  W.  101;  Lemly  v.  Ellis,  146  N.  C.  221;  59  S.  E.  683;  Campbell  v. 
Shaw,  170  N.  C.  186;  86  S,  E.  1035;  NorthciHt  v.  Hume,  (Tex.  Civ.  App.  I 
174  S.  W.  974;  Fid,  Lumber  Co.  v.  Ewing,  (Tex.  Civ.  App.)  201  S.  W.  1163; 
Fanners'  Etc.  Hank  v.  Cole,  (Tex.  Civ.  App.)  195  S.  W.  949;  Lumpkin  v. 
Blewett,  (Tex.  Civ.  App.)  Ill  S.  W.  1072;  Mayer  v.  Woolen,  46  Tex  Civ. 
App.  327;  102  S.  W.  423;  Lnrkin  v.  Trammell,  47  Tex.  Civ.  App.  64*;  105 
S.  \V.  652;  Smith  v.  Ward,  66  W.  Va.  190;  66  S.  E.  234;  33  L.  R.  A.  (N.  8.) 
1030.  Smith  v.  White,  71  W.  Va.  639;  78  S.  E.  378.  The  word  "value"  in 
the  rule  stated  in  the  text  means  actual  value,  and  not  that  fixed  by  the 
partie*.  Merch.  Nat.  Bank  v.  Otero,  24  N.  M.  598;  175  Pae.  781.  Where 
the  grantee  loaeii  part  of  the  lot  conveyed,  the  measure  of  damage*  for  breach 
of  the  warranty  in  the  difference  in  the  value  of  the  lot  after  the  IOH«. 
Withers  v.  Crennhaw,  (Tex.  Civ.  App.)  155  S.  W.  lrS9. 

•Downer  v.  Smith,  38  Vt.  464:   Scantlin  v.  Allison,  12  Kans.  92. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       447 

of  the  part  lost  does  not  apply  where  the  original  contract  between 
the  parties  shows  that  the  sale  was  by  the  acre  and  not  in  gross. 
In  such  case  the  contract  is  not  merged  in  the  subsequent  deed, 
and  the  covenantor  will  not  be  permitted  to  show  that  the  portion 
lost  consisted  of  bluffs  and  gullies  and  was  worthless.4 

If,  in  addition  to  the  general  warranty,  the  deed  shows  that  the 
sale  was  by  the  acre  and  that  the  grantor  must  account  for  any 
deficiency  in  the  acreage,  a,  suit  to  recover  for  such  deficiency  is 
not  a  suit  upon  the  covenant  of  warranty,  but  is  a  suit  upon  the 
special  covenant  to  refund.5 

If  there  be  no  evidence  of  a  difference  in  value  between  the 
part  of  the  estate  which  has  been  lost  and  the  part  retained,  the 
measure  of  damages  will,  of  course,  be  such  a  proportion  of  the 
entire  purchase  as  the  part  lost  bears  to  the  entire  tract.6 

It  is  to  be  observed  also  that  if  the  grantor  warrants  the  title 
to  a  certain  number  of  acres  only,  and  the  grantee  remains  in 
peaceable  possession  of  that  number  of  acres,  it  is  no  breach  of 
the  warranty  if  he  be  evicted  from  a  portion  of  the  premises 
embraced  in  the  deed.7 

The  words  "  more  or  less  "  in  the  deed  ordinarily  mean  that  the 
grantor  does  not  warrant  the  precise  number  of  acres  named 
therein;  and  if  there  be  no  more  than  a  reasonable  deficiency 
in  the  acreage  conveyed,  there  is  no  breach  of  the  covenant  of  war- 
ranty in  the  deed.8 

If  the  breach  of  the  covenant  is  only  as  to  one  of  several  lots 
or  parcels  conveyed,  the  covenantee  recovers  the  consideration  paid 
for  that  particular  lot  or  parcel.9 

It  will  hereafter  be  seen  that  a  purchaser  may  rescind  or  refuse 
to  perform  an  executory  contract  for  the  sale  of  lands  if  the  title 
to  a  portion  of  the  estate  prove  defective,  unless  the  portion 
affected  or  the  charge  upon  the  estate  be  trifling  and  inconsider- 

4Conklin  v.  Hancock,  67  Ohio  St.  455;  66  N.  E.  Rep.  518;  Kempner  v. 
Lumber  Co.,  20  Tex.  Civ.  App.  307;  49  S.  W.  Rep,  412. 

5  Holt  v.  Mynhier,  29  Ky.  L.  R.  819;  96  S.  W.  477. 

•Gass  v.  Sanger,  (Tex.  Civ.  App.),  30  S.  W.  Rep.  502;  Butte  Cr.  Etc. 
Dredging  Co.  v.  Olney,  173  Cal.  697;  161  Pac.  260. 

7  Folk  v.  Graham,  82  S.  C.  66;  62  S.  E.  1106. 

"Kitzman  v.  Carl,  133  Iowa,  340;  110  N.  W.  587. 

"Hanlon  v.  Glue  Co.,  53  Ind.  App.  504;   102  N.  E.  48. 


448  MARKETABLE    TITLE    TO    REAL    ESTATE. 

able.10  He  has  no  such  option  where  the  contract  has  been  exe- 
cuted by  a  conveyance  with  full  covenants  for  title.  If  he  be 
evicted  from  part  of  the  estate  by  paramount  title,  he  cannot  treat 
the  contract  as  at  an  end  and  recover  the  entire  purchase  money 
as  damages,  even  though  the  part  to  which  the  title  failed  had  been 
the  principal  inducement  to  his  purchase.  If  that  part,  however, 
be  of  greater  value  than  the  other,  the  part  of  the  purchase  money 
that  he  will  be  entitled  to  recover  as  damages,  will,  as  we  have 
just  seen,  lie  proportioned  to  the  actual  value  of  the  portion  of  the 
premises  lost.  The  same  rule  applies  where  it  appears  that  the 
covenantor  had  not  the  quantity  of  estate  or  the  interest  that  he 
undertook  to  convey.11  Thus,  in  a  case  in  Tennessee  in  which  the 
grantor  had  only  a  life  estate  instead  of  a  fee,  it  was  held  in  an 
action  for  breach  of  the  covenant  of  seisin  that  the  plaintiff  must 
keep  the  life  estate,  recovering  as  damages  the  difference  between 
the  value  of  the  life  estate  and  the  fee."  Where  a  deed  passes  an 
estate  of  value,  though  not  the  precise  estate  covenanted,  it  is  to 
be  considered  in  measuring  the  damages  for  breach  of  the  cove- 
nant.15 If  the  covenantee  and  his  grantees  have  enjoyed  the 
benefit  of  a  life  estate  in  the  premises,  the  value  of  such  estate 
must  be  deducted  from  the  damages,  even  though  the  plaintiff, 
who  was  an  assignee  of  the  covenant,  enjoyed  but  a  small  portion 

"Post,  ch.  32.     1  Sugd.  Vend.    (8th  ed.)   477    (315). 

"Morris  v.  Phelps,  5  Johns.  (X.  Y.)  56;  4  Am.  Dec.  323.  See,  also,  cases 
cited  ante  p.  444,  note  2.  An  agreement  that  if  the  title  to  part  of  the 
land  fails,  the  grantee  may  have  credit  on  his  purchase-money  notes  on  recon- 
veying  such  part,  does  not  oblige  him  to  pursue  that  course.  He  may  pay 
the  notes  and  sue  on  the  warranty.  Wood  v.  Thornton,  (Tex.)  19  S.  W. 
Rep.  1034. 

"Recohs  v.  Younglove,  8  Baxt.  (Tenn.)  385.  TUBNKT,  J.,  dissented,  hold- 
ing that  the  covenantee  was  entitled  to  damages  to  the  extent  of  the  entire 
purchase  money.  It  was  intimated  by  the  court  that  a  different  conclusion 
might  have  been  reached  if  the  .plaintiff  had  proceeded  in  equity  for  a  rescis- 
sion of  the  contract  instead*  of  seeking  damages  at  law.  It  is  doubtful, 
however,  whether  equity,  in  the  absence  of  fraud  or  mistake,  would  have 
entertained  the  covenantee,  the  contract  being  fully  executed,  and  his  remedy 
at  law  being  adequate  and  plain.  Morris  v.  Phelps,  supra.  Upon  the  prop- 
osition stated  in  the  text,  see  further  Gray  v.  Brisco,  Noy.  142,  and  case* 
cited  ante,  p.  444.  Tanner  v.  Livingston,  12  Wend.  (N.  Y.  83.) 

"Kimball  v.  Bryant,  25  Minn.  496;  Ogden  v.  Ball,  38  Minn.  237;  36  N.  W. 
Rep.  344;  Huntsman  v.  Hendricks,  44  Minn.  432;  40  X.  W.  Rep,  910. 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET  ENJOYMENT.       449 

of  the  life  estate.14  If  the  title  be  outstanding  in  tenants  in  com- 
mon or  joint  tenants,  and  but  one  of  these  recovers  an  undivided 
half  against  the  covenantee,  the  warranty  is  broken  only  as  to 
one-half  of  the  premises,  and  the  covenantee  can  recover  damages 
only  on  that  basis.  The  recovery  of  an  undivided  half  by  a  tenant 
in  common  with  a  third  person,  is  not  a  constructive  recovery  of 
the  whole  estate  in  common.10 

It  has  been  held  that  the  burden  will  be  upon  the  plaintiff  to 
show  the  relative  value  of  the  part  to  which  the  title  failed,  and 
that  in  the  absence  of  any  evidence  on  that  point,  it  will  not  be 
presumed  that  all  the  parts  were  of  the  same  value.  The  burden 
is  on  the  plaintiff  to  establish  all  the  facts  showing  that  he  is 
entitled  to  relief,  and  to  what  extent.16  Evidence  of  the  advan- 
tages or  disadvantages  of  the  part  lost,  is  admissible  on  behalf 
of  either  party.17 

Where  the  breach  of  the  covenant  of  warranty  or  the  covenant 
for  quiet  enjoyment,  consists  in  the  establishment  of  an  easement 
in  the  granted  premises,  e.  g.,  Jhe  occupation  of  a  part  of  the 
premises  by  a  public  highway,  the  measure  of  damages  has  been 
held  to  be  the  difference  in  value  between  the  premises  with  and 
without  the  easement.  In  such  a  case  the  rule  that  the  damages 
are  to  be  measured  by  the  consideration  money,  or  a  ratable  part 
thereof,  does  not  apply.18  Where  the  breach  consisted  in  the 
occupancy  of  a  part  of  the  premises  by  a  tenant  under  a  prior 
lease  from  the  grantor,  it  was  held  that  the  measure  of  damages 

"Aiken  v.  McDonald   (So.  Car.),  20  S.  E.  Rep.  796. 

"McGrew  v.  Harmon,   (Pa.  St.)    30  Atl.  Rep.  265. 

"Mischke  v.  Baughn,  52  Iowa,  528;  3  N.  W.  Rep.  543. 

"Beaupland  v.  McKeen,  28  Pa.  St.  124;   70  Am.  Dec.  115. 

"Byrnes  v.  Esty,  133  N.  Y.  342;   31  N.  E.  Rep.   105. 

In  a  caste  in  which  the  breach  of  warranty  consisted  in  the  condemnation 
of  a  part  of  the  premises  for  street  purposes,  it  was  held  that  the  measure 
of  damages  was  not  merely  the  value  of  the  part  taken,  but  that  the  grantee 
was  entitled  to  recover  also  for  the  resulting  injury  .to  the  balance  of  the 
property;  and  that  in  estimating  the  damages  the  peculiar  value,  for  certain 
purposes,  of  the  part  taken,  might  be  considered.  James  v.  Warehouse  Co., 
23  Ky.  L.  Rep,  1216;  64  S.  W.  Rep.  966;  24  Ky.  L.  Rep.  1266;  70  S.  W. 
Rep.  1046. 

57 


450  MARKETABLE    TITLE    TO    REAL    ESTATE. 

was  the  fair  rental  value  of  the  part  occupied,19  and  oxjx>nses  of 
litigation  with  the  tenant.20 

If,  on  failure  of  title  to  part  of  the  premises,  the  suit  be  not 
for  damages  but  for  rescission  and  recovery  of  the  purchase 
money  paid,  the  rule  that  the  damages  cannot  exceed  the  purchase 
money  for  that  portion  of  the  premises  does  not  apply.21 

§  171.  Improvements.  The  rule  that  the  measure  of  damages 
upon  a  breach  of  the  covenants  of  warranty  and  of  seisin,  is  the 
consideration  money  and  interest,  precludes  the  purchaser  from 
recovering  the  value  of  improvements  placed  by  him  on  the  prem- 
ises.22 When,  however,  these  are  of  a  permanent  and  substantial 
character,  he  is  generally  allowed  their  value  in  any  proceeding 
against  him  by  the  holder  of  the  paramount  title  to  recover  the 
premises  and  damages  for  their  detention.23  Especially  will  such 
an  allowance  be  made  when  the  grantee  is  evicted  by  the  grantor 
himself,  upon  the  ground  that  he  was  incompetent  to  execute  the 
conveyance.24 

§  172.  Covenantee's  right  to  interest  as  damages.  The  rule 
generally  prevailing  throughout  the  United  States  is  that  the  cove- 
nantee  is  entitled  to  recover  interest  on  the  consideration  money 
awarded  as  damages  for  breach  of  the  covenants  for  title  in  all 
cases  in  which  he  is  liable  to  the  real  owner  of  the  estate  for  mesne 
profits,  and  that  he  is  not  entitled  to  interest  unless  he  is  liable 
for  the  profits,26  and  this  without  regard  to  the  proportion  between 

"Bass  v.  Stearrns,  108  Ark.  357;  158  S,  W.  136. 

"Browning  v.  Stillwell,  86  N.  Y.  Supp.  707;  42  Misc.  346. 

"Fordtran  v.  Cunninpham,  (Tex.  Civ.  App.)   177  S.  W.  212. 

"Bender  v.  Fromberger,  4  Dall.  (U.  S.)  442,  leading  case.  Coffman  v. 
Huck,  19  Md.  435.  But  Bee  Morton  v.  Ridgway,  3  J.  J.  Marsh.  (Ky.)  254. 
Lejeune  v.  Barrow,  11  La.  Ann.  501. 

"1  Story  C.  C.  (U.  S.)  478.  Thompson  v.  Morrow,  5  Serg.  &  R.  (Pa.)  289. 
The  right  of  the  defendant  in  ejectment  to  an  allowance  for  improvement* 
made  by  him  upon  the  estate,  is  affirmed  by  statute  in  many  of  the  States. 
Where  the  grantee  is,  by  statute,  entitled  to  the  value  of  his  improvriiu-ni-* 
as  against  the  owner  of  the  paramount  title,  he  cannot  recover  UK-  value  of 
such  improvements  from  the  covenantor.  Webb  v.  Wheeler,  80  Neb.  438;  114 
N.  W.  636;  17  L.  R.  A.  (N.  S.)  1178. 

••Hawkins  v.  Brown,  80  Ky.  186. 

**4  Kent.  Com.  475.  The  learned  author  says:  "The  interest  is  to  counter- 
vail the  claim  for  raeane  profit"}  to  which  the  grantee  is  liable,  and  is  and 
ought  to  be  commensurate  in  point  of  tim<-  with  the  legal  clnim  to  HH-.JK- 
profits."  2  Sutherland  Dam.  300.  Staats  v.  Ten  Kyck,  3  faine*  (N.  Y.), 
Ill:  2  Am.  !>«•<•.  lj:>»:  I'iMu-r  v.  Livingston.  4  .Tolm*.  (X.  Y.)  1;  4  Am.  !>.,. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       451 

the  amount  of  the  interest  and  the  value  of  the  mesne  profits.28 
Thus,  if  the  true  owner's  right  to  recovery  of  the  profits  is  lim- 
ited by  statute  to  a  certain  number  of  years  next  preceding 
his  action  to  recover  the  premises,  the  evicted  covenantee  will  not 
be  entitled  to  interest  beyond  that  period.27  So,  if  he  takes  a  life 
estate  instead  of  a  fee  under  the  conveyance,  he  is  not  entitled  to 
interest  on  the  damages,  because  he  has  a  right  to  the  profits  as 
against  the  remainderman.28  The  •same  rule  applies  where  the  evic- 
tion results  from  the  enforcement  of  a  mortgage  or  other  incum- 
brance  on  the  land,  the  covenantee  not  being  liable  to  the  incum- 
brancer  for  rents  and  profits.29  In  some  cases,  however,  it  has  been 

229;  Caulkins  v.  Harris,  9  Johns.  (N.  Y.)  324;  Bennet  v.  Jenkins,  13  Johns. 
(N.  Y.)  50.  Collier  v.  Cowger,  52  Ark.  322;  12  S.  W.  Rep.  702.  Cox  v. 
Henry,  32  Pa.  St.  18.  Sumner  v.  Williams,  8  Mass.  222;  5  Am.  Dec.  83. 
Willson  v.  Willson,  25  N.  H.  229;  57  Am.  Dec.  320;  Groesbeck  v.  Harris, 
82  Tex.  411;  19  S.  W.  Rep.  850;  Brown  v.  Hearon,  66  Tex.  63;  17  S.  W.  Rep. 
395.  Bennett  v.  Latham,  18  Tex.  Civ.  App.  403;  Huff  v.  Riley  (Tex.  Civ. 
App.).  64  S.  W.  Rep.  387.  Mather  v.  Stokely,  218  Fed.  764;  134  C.  C.  A. 
442;  Withers  v.  Bank,  104  Miss.  681;  61  So.  690;  Davis  v.  Lee,  52  Wash. 
330;  100  Pac.  752;  132  Am.  St.  Rep.  973.  Thompson  v.  Guthrie,  9  Leigh 
(Va.)  101;  33  Am.  Dec.  225.  In  the  earlier  cases  of  Threlkeld  v.  Fitzhugh, 
3  Leigh  (Va.),  451  and  Jackson  v.  Turner,  5  Leigh  (Va.),  119,  it  seems  to 
have  been  held  that  the  covenantee  was  entitled  to  interest  only  from  the 
date  of  his  eviction.  So,  also,  in  Moreland  V.  Metz,  24  W.  Va.  138;  49  Am. 
Rep.  246.  Frazer  v.  Supervisors,  74  111.  282.  McNear  v.  McComber,  18  Iowa, 
12.  Stebbins  v.  Wolf,  33  Kans.  771;  7  Pac.  Rep.  542.  Rich  v.  Johnson,  1 
Chand.  (Wis.)  20;  S.  C.,  2  Pinney  (Wis.),  88;  Messer  v.  Oestrich,  52  Wis. 
694;  10  N.  W.  Rep.  6.  King  v.  Kerr,  5  Ohio,  160;  22  Am,  Dec.  777.  McGuffey 
v.  Humes,  9  Lea  (Tenn.),  93.  Flint  v.  Steadman,  36  Vt.  210.  A  covenantee 
counterclaiming  for  damages  arising  from  a  judgment  of  eviction  in  eject- 
ment cannot  have  interest  on  the  damages  for  the  time  he  remained  in  pos- 
session after  judgment.  Wacker  v.  Straub,  88  Pa.  St.  32.  The  removal  of 
timber  from  the  premises  by  a  vendee  of  the  covenant  cannot  be  set  off  against 
the  covenantee's  right  to  interest,  he  not  having  received  any  of  the  pro- 
ceeds of  the  timber.  Graham  v.  Dyer,  (Ky.),  29  S.  W.  Rep.  346. 

M  British  &  Am.  Mtge.  Co.  v.  Todd,  84  Miss.  522;   36  So.  1040. 

27  Harding  v.  Larkin,  41  111.  413.  Morris  v.  Rowan,  17  N.  J.  L.  304.  De 
Long  v.  Spring  Lake  Co.,  65  N.  J.  L,  1;  47  Atl.  491.  Hutchins  v.  Rountree, 
77  Mo.  500;  Lawless  v.  Collier,  19  Mo.  486.  Kyle  v.  Fauntleroy,  9  B.  Mon. 
(Ky.)  620.  Caulkins  v.  Harris,  9  Johns.  (N.  Y.)  324.  Cox  v.  Henry,  32 
Pa.  St.  19.  Mette  v.  Dow,  9  Lea  (Tenn.)  96;  Crittenden  v.  Posfey,  1  Head 
(Tenn.),  312.  Staed  v.  Rossier,  157  Mo.  App.  300;  137  S.  W.  901. 

28Guthrey  v.  Pugsley,  12  Johns.    (N.  Y.)    126. 

"Patterson  v.  Stewart,  6  Watts  &  S.  (Pa.)  527;  40  Am.  Dec.  586;  Williams 
v.  Beeman,  2  Dev.  (X.  C.)  486. 


•J52  MARKETABLE    TITLE    TO    REAL    ESTATE. 

held  that  the  covenantee  will  not  be  allowed  interest  on  the  dam- 
ages unless  he  shows  that  he  has  accounted  to  the  real  owner  for  the 
rents  and  profits.30  In  other  cases  his  right  to  interest  has  beer 
declared  complete  without  regard  to  the  question  of  mesne  profits, 
on  the  ground  that  the  covenantor  has  no  interest  in  the  profits,  and 
cannot  recoup  them  from  the  purchase  money  and  interest,  nor 
compel  the  covenantee  to  account  for  them.31  If  the  covenantee. 
being  liable  for  the  mesne  profits,  buy  in  the  paramount  title  and 
recover  as  damages  the  amount  expended  for  that  purpose,  he  will 

••Field  Dam.  §  466;  1  Sedg.  Dam.  (7th  ed.)  338,  n.  Wacker  v.  Straub,  88 
Pa.  St.  32.  Burton  v.  Reeds,  20  Ind.  91.  This  rule  has  been  established  by 
statute  in  Missouri.  Hutchins  v.  Rountree,  77  Mo.  500.  Pence  v.  Gabbert. 
70  Mo.  App.  201.  But  see  Foster  v.  Thompson,  41  N.  H.  73,  where  it  was 
held  to  be  immaterial  to  the  allowance  of  interest  whether  the  covenantee  had 
or  had  not  accounted  to  the  adverse  claimant  for  rents  and  profits,  it  being 
presumed  that  mesne  profits  will  be  recovered  by  the  real  owner.  In  Whitinp 
v.  Dewey,  15  Pick.  (Mass.)  428,  it  was  intimated  that  if  from  lapse  of  time 
the  covenantee  became  no  longer  liable  for  the  mesne  profits  they  should  be 
deducted  from  the  purchase  money  and-  interest. 

"Wilson  v.  PeeJle,  78  Ind.  384;  Wright  v.  Nipple,  92  id.  314;  Rhea  v. 
Swain,  122  Ind.  272;  23  N.  E.  Rep.  776,  where  held,  also,  that  failure  of 
the  true  owner  to  get  judgment  for  the  rents  and  profits  gave  the  covenantor 
no  claim  to  them.  But  see  Burton  v.  Reeds,  20  Ind.  87.  In  Mitchell  v. 
Hazen,  4  Conn.  435;  10  Am.  Dec.  169,  it  was  said  that  the  grantee  was 
entitled  to  the  consideration  with  interest,  whether  he  had  been  in  possession 
or  not,  for  the  reason  that  the  money  due  to  the  owner  for  rents  and  profits 
constituted  a  distinct  and  separate  claim.  And  in  Hulse  v.  White,  1  Cox 
(X.  J.  L.),  173,  the  court  said:  "The  defendant  cannot  avail  himself  of  the 
use  made  by  the  plaintiffs  of  the  property  of  another,  in  order  to  lessen  the 
damages.  We  must  suppose  that  the  real  owner  will  have  satisfaction  for 
the  profits  received  from  the  land."  In  Earle  v.  Mjddleton,  Chevea  (S.  C.), 
120,  it  wan  held  that  the  fact  that  the  covenantee  had  l>een  in  receipt  of  the 
profits  did  not  affect  his  right  to  interest  on  the  consideration  money. 
Interest  in  such  a  case  id  allowed  as  an  indemnity  against  any  demand 
for  mesne  profits  that  may  be  made  upon  the  covenantee  in  the  future. 
The  covenantor  cannot  demand  to  have  the  profits  set  off  against  interest 
because  he  in  not  concerned  with  them.  In  this  connection  O'XEALE,  J., 
said:  "There  is  no  case  of  eviction,  actual  or  constructive,  by  paramount 
title,  where  the  party's  right  to  interest  would  be  defeated  by  the  reception 
of  the  rents  and  profits.  The  defect  reaches  back  to  the  l>eginning  of  hi* 
title,  and  the  rents  end  profits  which  he  ha*  received-  are  not  those  of  hia 
vendor,  but  those  of  a  third  person  having  the  paramount  title.  The  dam- 
ages recovered  in  a  case  of  actual  eviction,  or  which  may  be  recovered  by 
an  existing  paramount  title  outstanding,  are  in  the  place  of  rents  and 
profits,  and  represent  them  in  legal  contemplation." 


COVENANTS  OF    WAitKANTY  AND  FOR  QUIET   ENJOYMENT.       403 

be  allowed  interest  on  the  recovery,  it  being  presumed  that  the 
rnesne  profits  entered  into  the  consideration  paid  for  the  para- 
mount title.32  It  has  also  been  held  that  he  will  be  entitled  to  inter- 
est on  the  amount  paid  to  get  in  the  outstanding  title,  whether 
he  has  or  has  not  been  in  the  pernancy  of  the  rents  and  profits,  and 
whether  the  latter  are  more  or  less  than  the  interest  on  the  purchase 
price  of  the  land.33  But  where  the  covenantee  was  kept  out  of  pos- 
session for  a  time  and  afterwards  acquired  possession,  it  was  held 
that  he  could  not  recover  the  rental  value  of  the  premises  for  the 
time  he  was  kept  out  of  possession,  since  he  might  have  acquired 
possession,  to  be  delivered  before  accepting  the  conveyance.34  The 
rule  that  the  covenantee  is  not  entitled  to  interest  unless  he  is 
liable  for  the  rents  and  profits,  of  necessity  applies  only  to  cases  in 
which  he  was  in  possession  of  the  estate.  If  he  was  never  able  to 
get  possession,  he  will,  of  course,  be  entitled  to  interest  from  the 
time  the  purchase  money  was  paid.  Interest  runs  from  the  time 
of  purchase,  and  not  merely  from  the  date  of  eviction.35 

§  173.  Costs  as  elements  of  damages.  In  England  and  in 
most  of  the  American  States,  in  which  the  question  has  been 
considered,  the  covenantee  is  permitted  to  include  in  his  recov- 
ery for  a  breach  of  the  covenant  of  warranty  or  of  seisin,  the 
taxed  costs  incurred  by  him  in  defending  the  title  when  attacked 
by  the  adverse  claimant,  although  he  may  not  have  notified  the 
covenantor  to  appear  and  defend  the  suit.36  The  purpose  of  such  a 

33  Harding  v.   Larkin,  41  111.  413. 

"Spring  v.   Chase,  22  Me.  505;   39  Am.  Dec.  505. 

34Andrus  v.  St.  Louis  Smelting  Co.,  130  U.  S.  643.     No  authorities  cited. 

35  Simpson  v.  Belvin,  37  Tex.  675.  Bellows  v.  Litchfield,  83  Iowa,  36:  48 
N".  W.  Rep.  1062.  ST.  Pac.  R.  Co.  v.  Montgomery,  86  Fed.  251.  But  if  he  is 
not  liable  for  mesne  profits  he  can  recover  interest  only  from  the  date  of 
eviction.  McGuffy  v.  Hawes,  85  Tenn.  26;  IS.  W.  Rep.  506;  Mette  v.  Dow, 
9  Lea  (Tenn.)  93. 

39  The  cases  cited  below  include,  also,  those  in  which  the  covenantee  was 
allowed  the  costs  of  defending  the  title,  but  in  which  no  objection  was  made 
to  the  allowance,  on  the  ground  that  the  covenantor  had  not  been  notified 
to  defend.  Williams  v.  Burrill;  1  Com.  B.  402;  Smith  v.  Compton,  3  B.  & 
Adolph,  407;  Pomeroy  v.  Partington,  3  Term  Rep.  678,  note.  Bennet  v. 
Jenkins,  13  Johns.  (N.  Y.)  50;  Waldo  v.  Long,  7  Johns.  (X.  Y.)  173.  Keeler 
v.  Wood,  30  Vt.  242.  Kyle  v.  Fauntleroy,  9  B.  Mon.  (Ky.)  622;  Robertson 
v.  Lemon,  2  Bush  (Ky.),  302.  Jeter  v.  Glenn,  9  Rich.  L.  (S.  C.)  374.  Cris- 
tield  v.  StoiT,  36  Md.  151;  11  Am.  Rep.  480.  Harding  v.  Larkin,  41  111.  421. 


454  MARKETABLE    TITLE    TO    REAL    ESTATE. 

notice  is  not  to  make  the  covenantor  liable  for  costs  but  to  make 
the  judgment  in  the  adverse  claimant's  suit  conclusive  upon  him 
when  sued  by  the  covenantee  for  the  breach  of  his  covenant." 
There  has  been  much-  conflict  of  opinion,  however,  upon  the  ques- 
tion of  the  liability  of  the  covenantor  for  costs  incurred  by  the 
covenantee  in  defending  the  title,  as  affected  by  the  refusal  of  the 
former  to  appear  and  defend.  There  are  cases  which  hold  that  if 
the  covenantor  refuse  to  defend  when  notified,  he  thereby  confers 
upon  the  covenantee  the  right  to  proceed  with  the  defense  and  to 
incur  all  legal  costs  necessary  for  that  purpose.88  On  the  other 

McKee  v.  Bain,  11  Kans.  578.  Sumner  v.  Williams,  8  Mass.  162,  222.  Brooks 
v.  Black,  (Miss.)  8  So.  Rep.  332.  Matheny  v.  Stewart,  (Mo.)  17  S.  W.  Rep. 
1014.  Hazlett  v.  Woodruff,  150  Mo.  534;  51  S.  W.  Rep.  1048;  Long  v. 
Wheeler,  84  Mo.  App.  101.  Estep  v.  Bailey,  (Oreg.)  185  Pac.  227;  Rennie 
v.  Gibson,  (Okl.)  183  Pac.  483;  Anderson  v.  Me-rrill  Co.,  77  N.  H.  275;  90 
All.  789;  Scott  v.  Scott,  183  Ky.  604;  210  S.  W.  175.  The  costs  which  the 
covenantee  is  entitled  to  recover  do  not  include  those  of  an  action  between 
himself  and  one  to  whom  he  had  sold  the  property,  in  which  action  it  was 
determined  that  the  title  was  unmarketable.  Hilliker  v.  Rueger,  228  N.  Y. 
11;  126  X.  E.  266.  Costs  and  counsel  fees  incurred  by  the  grantee  in 
defending  the  title  to  a  piece  of  land,  which,  by  mistake,  was  not  included 
in  his  deed,  cannot  be  recovered  against  the  grantor,  though  the  deed  was, 
after  judgment  against  the  grantee,  reformed  so  as  to  embrace  the  lot  in 
question,  with  covenant  of  warranty.  Butler  v.  Barnes,  61  Conn.  309;  24 
Atl.  Rep.  328.  The  taxable  costs  paid  by  the  plaintiff  may  be  inc.ludcd  in 
the  damages  though  the  costs  were  not  in  fact  taxed.  Webb  v.  Holt,  113 
Mich.  338;  71  N.  W.  Rep.  637. 

"Morris  v.  Rowan,  17  N.  J.  Li  309  (1839),  FORD,  J.,  saying:  "The 
defendant^*  counsel  supposes  the  costs  on  eviction  are  allowed  because  it  WMIB 
the  warrantor's  duty  to  defend  the  suit  upon  receiving  notice  of  the  action, 
and  he  objects  to  themr  in  this  case  because  no  notice  was  given  t«.  the  war- 
rantor or  his  representatives  of  the  pendency  of  the  action.  But  all  the  cases 
agree  in  allowing  the,  costs  of  eviction,  and  it  is  immaterial  whether  he  had 
notice  or  not.  His  covenant  to  warrant  ami  defend  is  not  a  conditional  one, 
if  he  haa  notice,  otherwise  want  of  notice  might  bar  the  warranty  itself.  He 
covenants  to  defend  as  absolutely  as  he  dties  to  warrant.  The  intent  of 
notice  is  not  to  make  him  liable  for  costs;  it  is  to  make  the  record  of 
eviction  conclude  him  in  respect  to  the  title."  HOBNBLOWKR,  C.  J..  stated  that 
he  had  examined  a  numlicT  of  cases  bearing  on  the  point  in  dispute,  and 
that  in  none  of  them  did  it  appear  that  the.  right  to  costs  depended  on  notice 
to  the  covenantor  to  defend."  Sec,  also,  Duflield  v.  Scott,  3  Term  Rep.  374. 

"Swell  v.  Patrick,  12  Me.  1;  Williamson  v.  Williamson,  71  Me.  442. 
Dubay  v.  Kelly  (Mich.),  100  N.  W.  Rep.  677.  Mercantile  Trust  Co.  v.  So. 
Park  Residence  Co.,  94  Ky.  271;  22  S.  W.  Rep.  314.  Winnepineogee  Paper 
Co.  v.  Hat. .11,  65  N.  H.  13;  18  Atl.  Rep.  171.  Walsh  v.  Dunn,  34  111.  App. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       455 

hand  there  are  cases  which  decide  that  if  the  covenantor  deems  the 
title  indefensible  and  chooses  to  abandon  it  to  the  adverse  claimant, 
the  covenantee  has  no  right  to  saddle  him  with  the  costs  of  an 
unprofitable  litigation  by  defending  the  suit,39  especially  where  it 
was  clear  that  defense  would  be  useless,  and  the  covenantor  noti- 
fied the  covenantee  not  to  defend.40  It  may  be  doubtful  whether 
the  want  of  notice  to  defend,  or  the  refusal  of  the  covenantor  to 
defend  when  notified,  is  proper  to  be  considered  in  determining 
the  right  of  the  covenantee  to  costs.  There  would  seem  to  be  no 
obligation  upon  the  covenantee  to  relinquish  the  estate  to  the 
adverse  claimant  and  lose  the  benefit  of  his  improvements  and  the 
increase  in  value  of  the  'premises,  merely  because  the  covenantor 
is  unwilling  or  unable  to  litigate  the  title.  And  it  would  seem 
that  the  right  of  the  covenantee  to  protect  his  bargain,  should  be 
deemed  to  have  been  fully  within  the  contemplation  of  the  parties 
at  the  time  the  covenant  was  made,  and  the  costs  thence  accruing 
to  have  been  within  the  intent  and  purposes  of  the  covenant.  For 
these  reasons,  in  addition  to  those  first  stated,  it  is  believed  that 
the  covenantee  is  entitled  to  recover  the  taxed  costs  incurred  by 
him  in  defending  the  title,  whether  the  covenantor  was  or  was  not 
notified  to  defend,  and  whether  he  neglected  or  complied  with  the 
notice.41 

The  grantee  will  not  be  entitled  to  costs  of  defending  the  title 
if  the  grantor  instead  of  conveying  with  warranty,  merely  cove- 
nants to  return  the  purchase  money,  if  the  grantee  is  evicted.42 
Neither  can  he  recover  such  costs  unless  they  were  incurred  in 
an  action  to  which  he  was  a  party  of  record  and  in  which  his  title 

146.  Teague  v.  Whaley,  20  Ind.  App.  26;  50  N.  E.  41;  Jeffords  v.  Dreisbach, 
168  Mo.  App.  577;  153  S.  W.  274;  Helton  v.  Asher,  135  Ky.  751;  123  S.  W. 
285.  Whether  the  notice  be  to  prosecute  or  defend.  Potwin  v.  Slasher,  9 
Wash.  460;  37  Pac.  Rep.  710. 

39  Terry  v.  Drabenstadt,  68  Pa.  St.  403;  Fulweiler  v.  Baugher,  15  Serg.  & 
R.  (Pa.)  55.  But  see  Hood's  Appeal,  (Pa.  St.)  7  Atl.  Rep.  137. 

40Matheny  v.  Stewart,  (Mo.)  17  S.  W.  Rep.  1014.  The  suit  here  was 
against  a  remote  grantor,  and  the  request  not  to  defend  was  by  the  immediate 
grantor.  i 

41  Mr.  Rawle  inclines  to  this  view.  Covts.  for  Title  (5th  ed.),  §  199,  and 
note  2. 

"Barnett  v.  Montgomery,  6  T.  B.  Mon.   (Ky.)   332. 


453  MARKETABLE    TITLE    TO    REAL    ESTATE. 

was  passed  upon.41  Nor  can  he  recover  costs  incurred  in  a  suit 
against  a  mere  trespasser  or  in  a  suit  against  himself  by  an  adverse 
claimant  in  which  he  is  successful,  for  the  covenant  of  warranty 
is  not  broken  by  a  tortious  disturbance,  nor  by  the  assertion  of 
adverse  claims.44  If  the  covenantor  was  not  seized,  and  the  cove- 
iiantee  nevertheless  enter  on  the  land,  and  the  real  owner  recover 
against  him  in  trespass,  the  covenantee  cannot  recover  the  costs 
and  damages  so  incurred  in  an  action  on  the  covenant  of  seisin.45 
Nor  will  the  covenantee  be  allowed  the  costs  of  a  suit  against 
himself  by  one  to  whom  he  had  conveyed  the  land,  and  who  was 
evicted.46  Where  the  warrantor  expressly  agreed  to  pay  any  costs 
that  might  be  incurred  in  defending  the  title,  he  was  held  liable 
for  such  costs,  though  not  made  a  party  to  the  adverse  claimant's 
suit.47  The  right  of  the  grantee  to  recover  costs  expended  in 
defending  the  title  is  not  affected  by  the  fact  that  he  did  not  take 
the  initiative  and  proceed  against  the  adverse  claimant.  He  is 
not  bound  to  follow  the  advice  or  request  of  the  grantor  to  sue  one 
who  sets  up  an  adverse  claim  to  the  premises.  He  may  subject 
himself  to  suit  by  resisting  or  interfering  with  such  claimant, 
without  losing  his  right  to  recover  the  costs  of  such  suit  from  the 
grantor.48  The  covenantee,  it  seems,  is  as  much  entitled  to  recover 
as  damages,  costs  incurred  in  a  suit  by  him  to  recover  possession 
from  an  adverse  claimant,  as  those  incurred  in  defending  a  suit 
by  the  latter,4'  provided  the  suit  was  brought  against  the  adverse 
claimant  with  the  concurrence  of  the  covenantor.60 

44  Harding  v.  Larkin,  41  111.  413. 

44  Christy  v.  Ogle,  33  111.  295.  Smith  v.  Parsons,  33  W.  Va.  644 ;  11  S.  E. 
Rep.  68.  Kane  v.  Fisher,  2  Watts  (Pa.)  246.  Hoffman  v.  Dickson,  65  Wash. 
556;  119  Pac.  737;  Ann.  Cas.  1913  B,  869. 

"Cushman  v.  Blanchard,  2  Or.   (Me.)   266;   11  Am.  Dec.  76. 

«•  Stark  v.  Olney,  3  Oreg.  88. 

"Hedrick  v.  Smith,  (Tex.)  14  S.  W.  Rep.  197.  The  case  does  not  show 
whether  the  promise  was  made  before  or  after  the  warranty. 

*  Smith  v.  Sprague,  40  Vt.  43. 

•Sutherland  Dam.  303.  La*«well  L.  &  L.  Co.  v.  Langdon,  (Mo.  App.) 
204  S.  W.  812;  Burrhfleld  v.  Brinkman,  92  Kan.  377;  140  Pac.  894. 

••Kyle  v.  Fauntleroy,  9  B.  Mon.  (Ky.)  620.  See,  also,  Dale  v.  Shively,  8 
Kans.  276.  Kingabury  v.  Smith.  13  N.  H.  125.  There  the  court  said:  "The 
principk?  dedwible  from  the  caws  cited  would  seem  to  be  that  the  grantee 
in  an  action  upon  a  covenant  of  warranty,  exprem  as  in  a  deed,  or  implied 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET   ENJOYMENT.       457 

As  the  covenant  does  not  extend  to  baseless  claims,  it  has  been 
held  that  the  covenantee  is  not  entitled  to  recover,  on  the  warranty, 
costs  and  expenses  incurred  by  him  in  prosecuting  a  suit  to  quiet 
his  title  against  the  heirs  of  a  widow  of  a  former  owner,  who  had 
forfeited  her  dower  right  to  the  granted  premises  by  electing  to 
take  the  homestead  right  in  other  lands  of  her  husband,  instead  of 
dower.61 

It  seems  that  special  agreements  to  indemnify  the  vendee  for  all 
costs  and  damages  of  any  kind"  which  he  may  sustain  in  case  of 
eviction,  are  not  merged  in  a  subsequent  conveyance  to  him  with 
covenants  for  title ; 52  and  if  the  covenantee  be  evicted,  he  may 
recover  all  costs  and  expenses  incurred  in  defending  the  title,  with- 
out regard  to  the  question  of  notice  to  the  covenantor  to  defend.53 

In  order  to  recover  costs  and  expenses  of  defending  the  title  as 
a  part  of  his  damages,  the  covenantee  is  not  required  to  show  that 
an  account  of  the  same  was  presented  to  the  defendant  and  pay- 
ment thereof  demanded  before  suit  on  the  covenant  was  begun.54 

Nor  is  it  necessary  that  the  covenantee  shall  show  that  he  has 
actually  paid  the  costs  and  expenses  of  defending  the  title;  he  is 

as  upon  the  sale  of  personal  property,  is  entitled  to  recover,  as  part  of  his 
damages  sustained  by  reason  of  the  failure  of  the  title  conveyed,  the  rea- 
sonable and  necessary  expenses  incurred  in  a  proper  course  of  legal  proceed- 
ings for  the  ascertainment  and  protection  of  his  rights  under  the  purchase,  as 
well  as  a  reasonable  compensation  for  his  trouble,  and  expenses  to  which  he 
may  have  been  put  in  extinguishing  a  paramount  title.  And  it  seems  to  us 
that  there  can  be  no  sound  distinction  between  the  case  in  which  the  expenses 
are  incurred  in  the  necessary  and  proper  prosecution  of  a  suit  for  such 
ascertainment  and  protection-  of  the  purchaser's  rights,  and  the  case  of  a 
defense  made  for  the  same  purpose.  In  Yokum  v.  Thomas,  15  Iowa,  67,  it 
was  held  that  the  covenantee  could  not  recover  costs  incurred  in  a  suit  to 
vacate  an  invalid  patent  issued  to  an  adverse  claimant  of  the  land.  And 
in  Gragg  v.  Richardson,  25  Ga.  566;  71  Am,  Dec.  190,  the  covenantee  was 
denied  attorney's  fees  paid  by  him  in  a  suit  to  recover  the  land.  In  Saccoccio 
v.  Sprague,  (R.  I.)  71  Atl.  1057,  the  covenantee  was  allowed  the  costs  and 
expenses  of  suits  by  him  to  determine  the  nature  and  extent  of  an  incum- 
brance  on  the  property,  the  covenantor  having  refused  to  take  any  steps  in 
that  direction. 

"Thome  v.  Clark,  (Iowa)  84  N.  W.  Rep.  701.  Compare  Smith  v.  Keeley, 
146  Iowa  ©60;  125  Mo.  669. 

"Colvin  v.  Schell,  1  Grant   (Pa.),  226. 

"Cox  v.  Henry,  32  Pa.  St.  21;   Anderson  v.  Washerbaugli,  43  Pa.  St.   115. 

"Tarbell  v.  Tarbell,  60  Vt.  486;   15  Atl.  Rep.  104. 
58 


458  MARKETABLE    TITLE    TO    REAL    ESTATE. 

entitled  to  recover  costs  incurred  though  not  paid.     But  he  cannot 
recover  interest  on'  unpaid  costs.0* 

§  174.  Counsel  fees  and  expenses.  Counsel  fees  and  reason- 
able expenses  incurred  in  asserting  or  defending  the  title,  have  not 
been  as  freely  allowed  the  covenantee  as  the  taxed  costs  of  suit  in 
such  cases.  There  would  seem,  however,  to  be  no  difference  in  the 
principles  upon  which  the  covenantee's  claim  is  rested  in  either 
case.  lie  is  as  much  obliged  to  avail  himself  of  the  services  of 
counsel,  as  of  those  of  other  officers  of  the  court,  in  the  defense  or 
prosecution  of  his  suit.56  There  is  much  conflict  of  authority  upon 
the  point.  In  some  cases  the  covenantee  has  been  permitted  to 
recover  the  reasonable  fees  paid  by  him  to  his  counsel,  though  no 
notice  of  the  adverse  claimant's  suit  was  given  the  covenantor  and 
no  opportunity  given  him  to  assume  the  defense.57  In  other  cases 
such  fees  have  been  denied  the  covenantee  unless  notice  was  given 

"Walton  v.  Campbell,  51  Nob.  788:   71  X.  W.  Rep.  737. 

"2  Suth.  Dam.  308.  Taylor  v.  Holter,  1  Mont.  688.  Swett  v.  Patrick,  12 
Me.  9. 

"  Ryerson  v.  Chapman,  66  Me.  562.  This  case  holds  also  that  the  burden 
is  on  the  plaintiff  to  show  that  the  fees  were  reasonable.  Harding  v.  Larkin, 
41  111.  422.  Haynes  v.  Stevens,  11  N.  H.  28.  Pitken  v.  Leavitt,  13  Vt  379; 
Turner  v.  Goodrich,  26  Vt.  709.  Dale  v.  Shivleyt  8  Kans.  276;  McKee  v. 
Bain,  11  Kans.  578.  (Compare  Jewett  v.  Fisher,  [Kan.  App.]  58  Pac.  1023.) 
McAlphine  v.  Woodruff,  11  Ohio  St.  120;  Brooks  v.  Mohl,  104  Minn.  404;  116 
X.  W.  931;  124  Am.  St.  Rep.  629,  17  L.  R.  A.  (X.  S.)  1195;  Solberg  v. 
Robinson,  34  S.  D.  55,  147  X.  W.  87.  Among  the  foregoing  cases  are  included 
some  in  which  it  appears  that  the  covenantee  was  not  vouched  in  to  defend 
the  adverse  claimant's  suit,  but  in  which  the  want  of  notice  to  defend  was 
not  urged  as  an  objection  to  the  allowance  of  fees.  In  Robertson  v.  Lemon. 
2  Bush  (Ky.),  301,  the  vendor  had  specially  covenanted  to  indemnify  the 
vendee  "against  all  loss,  cost  and  damages  growing  out  of  or  on  account  of 
any  defect  in  the  title."  Under  this  agreement  $300  counsel  fees  paid  by 
the  covenantee  wore  allowed  him.  In  Swartz  v.  Ballon,  47  Iowa.  188,  it  WHS 
held  that  the  plaintiff  was  entitled  to  "reasonable  attorney's  fees,"  but  that 
"reasonable  fees"  meanl  such  as  had  been  actually  incurred,  and  that  he 
must  show  that  he  had  paid,  or  obligated  himself  to  pay,  the  fees  claimed. 
Johnson  v.  Crowley,  (Mo.  App.)  207  S.  W.  235.  But  in  Rickert  v.  Snyder. 
9  Wend.  (X.  Y.)  419,  423,  it  was  held  that  the  covenantee  was  entitled  to 
reasonable  attorney's  free,  though  the  amount  actually  paid  was  neither 
ellegt-d  in  the  declaration,  nor  proved  at  the  trial.  If  the,  covenantor  himxelf 
disturb  the  covenantee  in  the  po**emm»n,  the  latter  will,  in  an  action  for 
breach  of  the  covenant  for  quiet  enjoyment,  be  entitled  to  counsel  feet* 
in  resisting  the  covenantor.  Levitzky  v.  Canning,  33  Cal.  308. 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET  ENJOYMENT.       459 

the  covenantor  to  defend,  and  was  neglected  by  him.58  And  in  still 
other  cases  these  fees  have  been  refused  the  covenantee  regardless 
of  the  question  of  notice  to  the  covenantor.59  The  fees  paid  must 
have  been  reasonable;  it  is  error  to  include  them  in  the  damages 
without  reference  to  their  reasonableness.60  Reasonable  personal 
expenses,  and  compensation  for  trouble  incurred  in  defending  the 
title  have  been  allowed  the  covenantee  though  the  covenantor  was 
vouched  in  to  defend  the  adverse  claimant's  suit.61  Counsel  fees 

68  Orisfield-  v.  Storr,  36  Md.  150;  11  Am.  Rep.  480.  Aa  an  illustration  of 
the  widely  diverging  opinions  of  judges  upon  the  question  of  the  covenantor's 
liability  for  counsel  fees  as  affected  t>y  the  fact,  or  the  absence  of,  notice  to 
defend,  it  may  'be  noted  that  the  very  ground  upon  which  they  were  allowed 
in  this  case,  namely,  the  refusal  of  the  covenantor  to  defend,  is  that  which 
is  assigned  in  other  cases  for  refusing  the  allowance;  the  argument  being 
that  the  covenantor  should  not  'be  subjected  to  expense  and  trouble  if  he 
deems  the  title  incapable  of  defense.  Terry  v.  Drabenstadt,  infra.  Barlow 
v.  Delaney,  40  Fed.  Rep.  97.  Mercantile  Trust  Co.  v.  So.  Park  Residence 
Co.,  (Ky.)  22  S.  W.  Rep.  314.  Meservy  v.  Snell,  (lo.)  62  N.  W.  Rep.  767. 
Alexander  v.  Staley,  110  lo.  607;  81  N".  W.  Rep.  803;  Wiggins  v.  Fender, 
132  N".  C.  628-;  44  N.  E.  Rep.  362.  Pineland  Mtge.  Co.  v.  Trust  Co.,  139  Mo. 
App.  209;  122  &.  W.  1133;  Jeffords  v.  Dreisbach,  168  Mo.  App.  577;  153 
S.  W.  274. 

59Will?ams  v.  Burg,  9  Lea  (Tenn.),  455.  Morris  v.  Rowan,  2  Harr. 
(X.  J.  L.)  309;  Holmes  v.  Sinnickson,  3  Gr.  (N.  J.  L.)  313.  Jeter  v.  Glenn, 
9  Rich.  L.  (»S.  C.)  374;  Ex  part«j  Lynch,  25  So.  Car.  193.  Brooks  v.  Black, 
68  Miss.  161;  8:  So.  Rep.  332;  Matheny  v.  Stewart,  108  Mo.  73;  17  S.  W. 
Rep.  1014.  Ooleman  v.  Clark,  80  Mo.  App.  3.39.  In  Turner  v.  Miller,  42 
Tex.  421,  it  Was  held  that  counsel  fees-  should  never  be  allowed  the  covenantee, 
unless  stipulated  for;  distinguishing  Rowe  v.  Heath,  23  Tex.  620,  where  the 
covenantor  had  specially  promised  to  bear  the  expense  of  litigation.  Cates 
v.  Field,  (Tex.  Civ.  App.)  85  S.  W.  Rep.  52.  Adams  v.  Cox,  (Tex.  Civ.  App.) 
150  S.  W.  1195;  Morgan  v.  Haley,  107  Va.  331,  5S  S  E.  564,  13  L.  R.  A. 
(X.  S.)  732,  122  Am.  St.  Rep,  846;  Gremillion  v.  Roy,  125  La.  524,  51  So. 
576;  Brawley  v.  Copelin,  106  Ark.  256,  153  S.  W.  101  j  Beach  v.  Nordman, 
90  Ark.  63,  117  S.  W.  787. 

•"Jones  v.  Balsley,  154  N.  C.  61,  69  S.  E.  827. 

"Leffingwell  v.  Elliott,  19  Pick.  (Mass.)  204;  19  Am.  Dec.  343.  Among  the 
items  allowed  in  this  case  were  charges  for  the  plaintiff's  time,  board,  livery 
expenses,  expenses  of  preparation  for  trial,  attendance  at  court,  etc.,  in  the 
adverse  claimant's  suit.  Merrit  v.  Morse,  108  Mass.  270;  Taylor  v.  Allen, 
131  Ga.  416,  62  S.  E.  291.  AVhere  one  tract  of  land  was  by  mistake  conveyed 
for  another,  the  purchaser  was  not  allowed  as  part  of  his  damages  railroad 
fares  and  hotel  bills  incurred  while  attempting  to  make  a  settlement  with 
the  vendor.  Doom  v.  Curran,  52  Kans.  360;  34  Pac.  Rep.  1118.  The 
eovenantee  has  been  held  entitled  to  his  personal  expenses,  even  though 


4GO  MARKETABLE    TITLE    TO    REAL    ESTATE. 

for  advice  and  assistance  in  buying  the  outstanding  title  have  in 
some  cases  been  allowed,62  and  in  others  refused63  the  plaintiff. 
If  the  covenantor  assume  the  defense  when  requested,  it  has  been 
held  that  the  plaintiff  cannot  recover  attorney's  fees;64  if,  how- 
ever, the  covenantor  refuse  or  neglect  to  defend  when  notified  the 
right  of  the  plaintiff  to  recover  those  items  has  been  asserted  in 
some  cases,65  and  denied  in  others.66  It  has  been  held  that  the 
covenantee  will  not  be  entitled  to  recover  attorney's  fees  and  other 
expenses  incurred  by  him.  in  getting  in  an  outstanding  title  to  the 
land.67 

§    175.  NOTICE  TO  DEFEND  OB,  PROSECUTE  EJECTMENT.    If  a 

grantee  who  has  received  a  covenant  of  general  warranty  be  evicted 
in  pursuance  of  the  judgment  of  a  court  in  favor  of  one  setting  up 
an  adverse  claim  to  the  land,  he  must  show,  in  an  action  for  breach 
of  the  covenant,  that  the  title  so  established  was  superior  to  that 
derived  by  himself  from  the  defendant,  the  covenantor.  It  would 

incurml  after  the  covenantor  had,  upon  notice,  assumed  the  defense.  Ken- 
nison  v.  Taylor,  18  X.  H.  220,  citing  Loomis  v.  Bedel,  11  N.  H.  74;  Moody 
v.  Leavitt,  2  X.  H.  174. 

"McKee  v.  Bain,  11  Kans.  569.     Lane  v.  Fury,  31  Ohio  St.  574. 

"  Leilingwell  v.  Elliott,  10  Pick.  (Mass.)  204;  8  Pick.  (Mass.)  457;  19 
Am.  Do-.  343.  In  these  cases,  however,  the  covenantor  was  allowed  for  costs 
and  expenses,  other  than  counsel  fees.  Long  v.  Wheeler,  84  Mo.  App.  101. 

"Wimberly  v.  Collier,  32  Ga.  13.    Kennison  v.  Taylor,  18  N.  H.  220. 

"Crisfield  v.  Storr,  36  Md.  150;  11  Am.  Rep.  480;  Stark  v.  OIney,  3  Oreg. 
88;  Lane  v.  Fury,  31  Ohio  St.  574;  Keeler  v.  Wood,  30  Vt.  242;  Swett  v. 
Patrick,  12  Me.  1;  Beach  v.  Xordman,  90  Ark.  59,  117  S.  W.  785;  Ellis  v. 
Abbott,  69  Oreg.  234,  138  Pac.  488;  Rennie  v.  Gibson,  (Okl.)  183  Pac.  483; 
Jones  v.  Balsley,  154  X.  C.  61,  69  S.  E.  827;  Culver  v.  Jennings,  157  N.  C. 
565,  72  S.  K.  1005;  Helton  v.  A*her,  135  Ky.  751,  123  S.  W.  285.  See  Ryer- 
son  v.  Chapman,  66  Me.  562,  where  it  was  said  that  Swett  v.  Patrick,  supra, 
d<>e»  not  decide  that  costs  and  attorneys'  fees  are  not  recoverable  when  notice 
to  defend  in  not  given,  but  merely  gives  the  fact  of  notice  «s  an  additional  or 
conclusive  reason  why  they  should  be  included  in  the  damages. 

"Terry  v.  Dral>enstadt,  68  Pa.  St.  400,  SIIARHWOOD,  J.,  saying:  "Without 
undertaking  to  lay  down  any  general  rule,  it  would  seem  to  be  most  reason- 
able to  bold  that  where  a  covenantor  li.i-  been  notified  to  appear  and  defend, 
and  declines  or  fails  to  do  so,  and  the  covenantee  chooses  to  proceed  and  incur 
costs  and  expenses  in  what  it  may  lx»  presumed  that  the  covenantor  considered 
an  unnecessary  and  hopeless  contest,  he  does  so  certainly  upon  his  own 
responsibility."  See,  also,  Fulweiler  v.  Baugher.  15  S.  &  R.  (Pa,)  56. 

"  Mercantile  Trust  Co.  v.  S.  Park  Residence  Co.,  94  Ky.  271;  22  S.  W. 
Hep.  314. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       461 

be  obviously  unjust  that  the  covenantor  should  be  exposed  to  the 
danger  of  collusion  between  the  grantee  and  the  adverse  claimant 
resulting  in  a  judgment  of  eviction,  or  that  he  should  be  bound 
by  the  proceedings  in  a  suit  to  which  he  had  no  opportunity  to 
become  a  party.  It  has  been  held,  however,  almost  universally 
in  America,  that  if  the  covenantee,  when  sued  in  ejectment  by 
an  adverse  claimant,  notifies  the  covenantor  of  the  pendency  of 
the  suit  and  requests  him  to  appear  and  defend  it,  the  latter 
thereby  becomes  substantially  a  party  to  the  suit  and  bound  by  the 
judgment  therein  rendered,  so  that  the  covenantee  will,  in  an 
action  for  breach  of  the  covenant,  be  relieved  from  the  burden  of 
proving  that  the  title  established  by  such  judgment  was  in  fact 
paramount  to  that  of  the  covenantor,  and  that  in  default  of  such 
notice  the  burden  devolves  upon  the  covenantee  to  show  that  he 
was  evicted  by  one  having  a  better  title.68  These  decisions  would 

*  Abbott's  Trial  Ev.  519;  Rawlle  Covts.  for  Title  (5th  ed.),  §  117.  Salle  v. 
Light,  4  Ala.  700;  39  Am.  Dec.  317,  case  of  personal  property.  Hinds  v. 
Allen,  34  Conn.  185,  195.  Gragg  v.  Richardson,  25  Ga.  566;  71  Am.  Dec. 
190;  Clements  v.  Collins,  59  Ga.  124;  Haines  v.  Fort,  93  Ga.  24;  18  S.  E. 
Rep.  994;  Phillips  v.  Cooper,  93'  Ga.  639;  20  S.  E.  Rep.  78;  Claycomb  v. 
Munger,  51  111.  373;  Morgan  v.  Muldoon,  82  Ind.  347;  Bever  v.  North,  107 
Ind.  545;  Jones  v.  Waggoner,  7  J.  J.  Marsh.  (Ky. )  144;  Graham  v.  Dyer, 
(Ky.)  29  S.  W.  Rep.  346;  Elliott  v.  Sanfly,  89  Ky.  57;  11  S.  W.  Rep.  200, 
Jones  v.  Jones,  (Ky.)  7  S.  W.  Rep.  886;  Chenault  v.  Thomas.,  26  Ky.  L.  Rep. 
1029;  83  S.  W.  Rep.  109;  Jackson  v.  Marsh,  5  Wend.  (N.  Y.)  44,  a  case 
in  which  the  covenantee  confessed  judgment  in  favor  of  the  adverse  claimant. 
Davis  v.  Wilbourne,  1  Hill  L.  (S.  C.)  28,  case  of  personal  property.  In 
Buckels  v.  Mouzon,  1  Strobh.  L,  (S.  C. )  448.,  it  was  held  that  a  judgment 
by  default  against  the  covenantee  would  not  bind  the  covenantor,  though 
notified  to  defend.  And  in  Middleton  v.  Thompson,  1  Spear  L.  (S.  C.)  67, 
it  was  held  that  it  must  appear  that  the  title  was  put  in  issue.  Greenlaw  v. 
Williams,  2  Lea  (Tenn.),  533;  Bank  of  Winchester  v.  White,  114  Tenn. 
62;  84  S.  W.  Rep.  697.;  Groesbeck  v.  Harris,  82  Tex.  411;  19  S.  W.  Rep. 
850;  Somers  v.  Schmidt,  24  Wis.  419;  1  Am.  Rep.  191;  Wallace  v.  Pereles,  109 
Wis.  316;  85  N.  W.  Rep.  371;  Long  v.  Howard,  (Minn.)  53  N.  W.  Rep. 
1014;  Fitzpatrick  v.  Hoffman,  (Mich.)  62  N.  W.  Rep.  349.  It  is  immaterial 
upon  what  title  the  covenantee  was  evicted  if  the  covenantor  wasi  notified  to 
defend.  Wendell  v.  North,  24  Wis.  223.  Notice  to  defend  a  suit  for  dower 
binds  the  covenantor.  Terry  v.  Drabenstadt,  68  Pa.  St.  400.  If  the  cove- 
nantee neither  notifies  his  covenantor,  nor  avails  himself  of  a  valid  defense 
which  the  covenantor  might  have  made,  the  latter  may  avail  himself  of  such 
defense  in  an  action  on  the  covenant.  Walton  v.  Cox,  67  Ind.  164.  A  decision 
of  arbitrators  adverse  to  the  covenantor's  title,  rendered  without  notice  of 


4()2  MARKETABLE    TITLE    TO    REAL    ESTATE. 

seem  necessarily  to  assume  that  in  the  States  in  which  they  were 
rendered  some  provision  of  law  or  some  practice  existed  by  which 
the  covenantor  when  notified  to  appear  could  procure  himself  to 
be  admitted  as  a  party  defendant  to  the  suit,  though  it  is  not 
necessary  that  he  should  be  a  party  to  the  suit  to  be  bound  by 
the  notice."  In  North  Carolina  it  has  been  held  that  judgment 
of  eviction  rendered  after  notice  and  request  to  the  covenantor 
to  appear  and  defend  was  in  no  way  conclusive  upon  him,  inas- 
much as  there  was  no  law  or  rule,  or  practice  by  which  he  might 
be  made  a  party  to  the  suit.70  The  better  opinion,  however,  seems 

the  arbitration  to  the  covenantor,  is  not  binding  upon  him.  Prewdtt  v.  Ken- 
ton,  3  Bibb  (Ky.),  282.  In  Texas  the  covenantee,  when  sued  by  an  adverse 
claimant,  is  not  only  allowed  to  implead  the  covenantor  and  bind  him  by 
the  result,  but  he  may  have  judgment  over  against  the  covenantor  for  breach 
of  warranty  in  case  the  adverse  claimant  establishes  his  title  and  obtains 
judgment;  and  this  to  prevent  multiplicity  of  actions.  Kirby  v.  Estell,  75 
Tex.  485;  12  S.  W.  Rep.  807;  Johns  v.  Hardin,  (Tex)  16  S.  W.  Rep.  623. 
Such  a  practice  is,  of  course,  inadmissible  under  common-law  systems  of 
procedure.  In  a  case  in  Texas  in  which,  after  the  warrantor  had  been 
vouched  in  to  defend,  his  co-defendant,  the  warrantee,  amended  his  answer 
so  as  to  claim  judgment  over  against  the  warrantor  in  case  of  an  eviction, 
it  was  held  that  the  latter,  having  received  no  notice  of  the  amendment,  was 
not  bound  by  a  judgment  for  breach  of  warranty  rendered  against  him  in 
pursuance  of  such  amendment.  The  only  effect  of  the  pleadings,  as  they  stood, 
wa*  to  make  the  judgment  against  the  warrantee  conclusive  of  the  question  of 
paramount  title  in  the  evictor.  Mann  v.  Matthews,  82  Tex.  98;  17  S.  W. 
Rep.  395. 

Recent  Cages.  Carpenter  v.  Carpenter,  88  Ark.  169,  113  S.  W.  1032;  Cox 
v.  Bradford,  101  Ark.  302,  142  S.  W.  170;  McCormick  v.  Marcy,  165  Cal.  386, 
132  Pac.  449;  White  v.  Stewart  &  Co.,  131  Ga.  460,  62  S.  E.  590;  Taylor  v. 
Allen,  131  G*.  416,  62  8.  E.  291;  Brooks  v.  Winkles,  139  Ga.  732,  78  S.  E. 
129;  Ashburn  v.  Watson,  8  Ga.  App.  566,  70  S.  E.  19;  McDonnell  v.  Downs, 
48  111.  271;  Harding  v.  Sucher,  261  111.  284,  103  N.  E.  1019;  SarlU  v.  Beck- 
man,  55  Ind.  App.  638,  104  N.  E.  598;  BolU-nbachcr  v.  Lee  (Ind.  App.)  121 
X.  E.  663;  Richstein  v.  Welch,  197  Mass.  224,  83  N.  E.  417;  Talbert  v.  Grist, 
198  Mo.  App.  492,  201  S.  W.  906;  Faasler  v.  Streit,  100  Xeb.  722,  161  N.  W. 
172;  Estep  v.  Bailey,  (Oreg.)  185  Pac.  227;  Brader  v.  Zbranek,  (Tex.  Civ. 
App.)  213  S.  W.  331;  Farwell  v.  Bean,  82  Vt.  172,  72  Atl.  731;  Norfolk  & 
W.  R,  Co.  r.  Mundy,  110  Va.  422,  66  S.  E.  61;  Kapiolani  Est.  v.  Atclierly, 
238  U.  S.  119,  31  S.  C.  832,  59  L.  ed.  1229,  Ann.  Cas.  1916  E.  142. 

•Wolfe  v.  Land  Co.,  265  Fed.  503, 

"William*  v.  Shaw,  N.  C.  Term.  Rep.  197;  7  Am.  Dec.  706;  Shober  v. 
Robinson,  2  Murph.  (N.  C.)  33;  Wilder  v.  Ireland,  8  Jones  L.  (N.  C.)  88; 
Saunders  v.  Hamilton,  2  Hayw.  (N.  C.)  282;  Martin  v.  COWPH,  2  Dcv.  &  Bat. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       463 

to  be  that  it  is  the  duty  of  the  covenantor  to  appear  upon  notice 
and  request  and  furnish  all  the  aid  and  information  in  his  power 
for  the  successful  maintenance  of  the  suit,  and  that  having  done 
so,  he  may  avail  himself  of  the  judgment  therein  rendered, 
though  not  actually  a  party  to  the  suit.71  Judgment  against  the 
covenantee  in  trespass,  as  well  as  in  ejectment,  binds  the  cove- 
nantor if  he  has  been  notified  of  the  suit  and  requested  to  defend.72 
So,  also,  in  trespass  to  try  title,  73  and  in  foreclosure  proceedings.74 
The  covenantee,  by  giving  the  proper  notice  and  request  to 
defend,  is  not  only  relieved  from  the  burden  of  showing  that  the 
judgment  under  which  he  was  evicted  was  founded  upon  a  para- 
mount title,  but  the  covenantor  will  not,  in  the  absence  of  fraud 
or  collusion,  be  permitted,  when  sued  for  a  breach  of  his  covenant, 
to  dispute  the  title  of  the  ejectment  plaintiff,  or  show  a  better 

L.  (N".  Car.)  101,  the  court  saying:  "In  our  opinion  the  record  of  the  judg- 
ment is  not  only  not  conclusive  evidence,  but  it  is  not  any  evidence  of  title 
against  the  vendor.  It  would  be  repugnant  to  principle  to  bind  any  one  by 
a  judgment  in  a  suit  where,  if  an  opposite  judgment  had  been  rendered,  he 
could  derive  no  benefit  from  it,  to  which  suit  he  was  not  a  party,  and  where 
he  could  not  challenge  the  request  nor  examine  witnesses,  nor  exercise  any 
of  the  means  provided  by  law  for  ascertaining  the  truth  and  asserting  his 
right.  In  real  actions  a  warrantor  might  be  made  a  party  by  voucher;  in 
ejectment  a  landlord  may  come  in  to  defend  the  possession  of  his  tenant, 
but  there  is  no  provision  of  law  by  which  a  vendor  can  be  brought  in  to  vin- 
dicate the  possession  of  his  vendee.  To  a  judgment  against  the  vendee,  the 
vendor  is  a,  stranger,  and,  therefore,  that  judgment  is  against  him  evidence 
only  of  the  fact  of  the  judgment  and  of  the  damages  and  costs  recovered." 

71  Chamberlain  v.  Preble,  11  Mlass.  375,  where  it  is  said:  "If  he  does  not 
assume  the  defense,  it  is  at  least  his  duty  to  communicate  all  information 
in  his  power  as  to  the  validity  of  the  plaintiff's  title.  If  he  fails  to  do  so, 
if  he  stands  by  and  permits  a  recovery  for  want  of  evidence  of  which  he  has 
knowledge,  he  cannot  be  (permitted  to  show  that  the  result  would  have  been 
otherwise  if  the  evidence  had  been  produced,  and  so  avoid  the  effect  of  a 
recovery  in  a  suit  against  him.  If  he  pays  no  attention  to  the  notice,  and 
turns  his  back  upon  the  suit,  he  cannot,  when  called  upon  to  respond,  be 
permitted  to  prove  that  the  defendant  in  the  original  suit  would  have  pre- 
vailed if  the  defense  had  been  conducted  with  a  fuller  knowledge  of  material 
facts."  Under  a  statute  permitting  the  landlord  to  be  made  defendant  when 
the  tenant  is  sued  in  ejectment,  a  vendor  who  warranted  the  title  cannot 
insist  on  being  substituted  as  defendant.  Linderman  v.  Berg,  12  Pa.  St.  301. 

"Merritt  v.  Morse,  108  Mass.  270. 

"Johns  v.  Hardin,    (Tex.)    16  S.  W.  Rep.  623. 

"Collier  v.  Cowger,  52  Ark.  322;  12  S.  W.  Rep.  702. 


464  MAKKETABLE    TITLE    TO    HEAL    ESTATE. 

title  in  himself.75  The  notice  and  request  make  him  a  privy  to 
the  action,  and  he  is  bound  whether  he  does  or  does  not  appear 
and  defend.7'  In  a  case  in  which  he  did  not  appear  after  notice 
and  request,  he  was  concluded,  though  the  suit  in  which  the 
adverse  title  was  established  was  decided  upon  an  agreed  state  of 
facts  which  was  erroneous,  and  which,  if  it  had  been  correctly 
stated,  would  have  defeated  the  adverse  title,  the  agreed  statement 
of  facts  having  been  made  in  good  faith  and  without  collusion.77 

Notice  to  the  covenantor  to  appear  and  defend  the  suit  by  the 
adverse  claimant  is  not  necessary  where  he  is  made  a  party 
defendant  to  the  suit,  and  served  with  a  copy  of  the  summons.78 

Notice  should  be  given  to  the  covenantor  himself.  Notice  to  his 
agent,  appointed  to  collect  the  purchase  money,  is  insufficient.79 
Notice  to  the  personal  representative  of  the  covenantor  need  not 
be  given  if  the  covenantor  was  properly  notified  during  his  life- 

"Merritt  v.  Morse,  108  Mass.  270,  citing  Shears  v.  Dusenbury,  13  Gray 
(Mass.)  292;  Chamberlain  v.  Treble,  11  Allen  (Mass.),  370,  and  Haven  v. 
Grand  June.  R.  Co.,  12  Allen  (Mass.),  337.  Cooper  v.  Watson,  10  Wend. 
(N.  Y.)  205;  Morris  v.  Rowan,  17  N.  J.  L.  307,  obiter;  Ives  v.  Niles,  5 
Watts  (Pa.)  323;  Middleton  v.  Thompson,  1  Spear  L.  (S.  C.)  07;  Wilson 
v.  McElwee,  1  Strobh.  L.  (S.  C.)  f>5;  Williams  v.  Burg,  9  Lea  (TVnn.),  455; 
Williams  v.  Weatherbee,  2  Aik.  (Vt.)  357;  Wendel  v.  North,  24  Wis.  ±2X. 
The  foregoing  decisions  are  rested  upon  the  familiar  principle  enunciated 
by  BULLRR,  J.,  in  the  leading  case  of  Duffield  v.  Scott,  3  Term  Rep.  374, 
namely:  "If  a  demand  is  made  which  the  person  indemnifying  is  bound  to 
pay,  and  notice  is  given  to  him,  and  he  refuses  to  defend  the  action,  in 
consequence  of  which  <the  person  to  be  indemnified  is  obliged  to  pay  the 
demand,  that  in  equivalent  to  a  judgment  and  estops  the  other  party  from 
saying  that  the  defendant  in  the  first  action  was  not  bound  to  pay  the 
money." 

'•Rawle  Covts.  (5th  ed.)  §  117;  Wimberly  v.  Collier,  32  Ga.  13;  MtConnell 
v.  Downs,  48  111.  271;  Woodward  v.  Allen,  3  Dana  (Ky.),  164. 

"Chamberlain  v.  Preble,  11  Allen  (Mass.),  370.  The  warrantor,  if  made  a 
party,  is  bound  by  judgment  in  a  suit  by  an  adverse  claimant,  though  ren- 
dered upon  a  stipulation  between  the  plaintiff  and  the  co-defendant,  to  which 
he  was  not  a  party.  Brown  v.  Hearon,  66  Tex.  63;  17  S.  W.  Rep.  395;  Mann 
v.  Matthews,  82  Tex.  98;  17  S.  W.  Rep.  927. 

"Rennie  v.  Gibson,  (Okl.)  183  Pac.  483;  Seyfried  v.  Knoblauch,  44  Colo. 
86,  96  Pac.  993;  Rice  v.  Cook,  (Mo.  App.)  120  S.  W.  1191. 

"Graham  v.  Tankereley,  15  Ala.  634.  But  in  a  case  in  which  an  agent, 
upon  being  notified,  appeared  and  practically  took  charge  of  the  suit,  the 
principal  was  held  hound  by  the  result.  Bellows  v.  Litchfleld,  83  Iowa,  36; 
is  N  W.  Rep.  1002. 


COVENANTS  OF  WAREANTY  AND  FOR  QUIET  ENJOYMENT. 

time.80  If  the  covenantee  be  evicted  under  a  title  derived  from 
himself,  the  covenantor  will  not,  of  course,  be  estopped  from  show- 
ing that  fact  though  he  may  have  disregarded  a  notice  to  appear 
and  defend  the  suit.81  The  notice  to  appear  and  defend  relieves  the 
covenantee  and  the  adverse  claimant  of  any  imputation  of  col- 
lusion.82 But  if  there  be  actual  collusion,  or  judgment  be  rendered 
against  the  covenantee  through  his  negligence,  the  covenantor  will 
not  be  bound,  notwithstanding  the  notice.83  If  the  covenantor 
appears  and  defends  the  suit  in  pursuance  of  the  notice  and 
request,  a  fortiori  will  he  be  bound  by  the  judgment,  being  actually 
and  not  merely  constructively  a  party  to  the  suit  and  will  not  be 
permitted  afterwards  to  show  that  his  title  was  good.84  In  Wiscon- 
sin it  has  been  held  that  the  covenantor,  though  notified  to  defend 
the  action,  and  failing  so  to  do,  will  not  be  bound  by  a  judgment 
against  his  grantee  if  not  allowed  to  pay  the  costs  and  take  a  new 
trial.85 

The  notice  must  be  unequivocal,  certain  and  explicit.  Mere 
notice  to  attend  the  trial  will  not  suffice  unless  attended  with  an 
express  request  to  defend  the  title.86  Knowledge  of  the  adverse 

80  Brown  v.  Taylor,  13  Vt.  631;  37  Am.  Dec.  18.  This  decision  was  criti- 
cised in  Somers  v.  Schmidt,  24  Wis.  420;  1  Am.  Dec.  191.  See,  also,  Rawle 
Covts.  (5th  ed.)  §  119. 

81Rawle  Covts.  (5  the  ed.)  §  117,  note. 

82Swenk  v.  Stout,  2  Yeates    (Pa.),  470,  472. 

83  Sisk  v.  Woodruff,  15  111.  15,  obiter;  Davis  v.  Smith,  5  Ga,  274. 

84  Brown  v.    McMullen,   1  Hill   L.    (S.   C.)    29.     Collis  v.    Cogbill,   9   Lea 
(Tenn.),  137. 

85  Eaton  v.  Lyman,  26  Wis.  62.    It  seems  that  in  this  State  the  covenantor, 
though  not  a  party  to  the  suit,  is  by  statute  entitled  to  a  new  trial  as  a 
matter  of  right. 

"Paul  v.  Witman,  3  Watts  &  S.  (Pa.)  409;  Collins  v.  Baker,  6  Mo.  App. 
588;  Dalton  v.  Bowker,  8  Nev.  190;  Greenlaw  v.  Williams,  2  Lea  (Tenn.), 
533;  Sheets  v.  Joyner,  (Ind.)  38  X.  E.  Rep.  830;  Teague  v.  Whaley,  20  Ind. 
App.  31,  50  N.  E.  41;  Pence  v.  Rhonemus,  58  Ind.  App.  268,  108  N.  E.  129; 
Morgan  v.  Haley,  107  Va.  331,  58  S.  E.  564,  13  L.  R.  A.  (iN".  S.)  732,  122 
Am.  St.  Rep.  846.  The  rule  stated  in  the  text,  drawn  from  the  cases  cited, 
has  not  been  applied  in  all  cases  in  which  it  has  been  sought  to  bind  one 
person  by  the  result  of  a  suit  against  another.  Thus,  in  Chicago  City  v. 
Rollins,  2  Bl.  (U.  S.)  418,  it  was  held  that  an  individual  would  be  concluded 
by  a  judgment  recovered  against  a  corporation  for  his  act  or  negligence  if  he 
knew  that  the  suit  was  pending  and  could  have  defended  it.  An  express  notice 
to  such  individual  is  not  necessary  to  create  a  liability  on  his  part.  Where 

59 


466  MARKETABLE    TITLE    TO    REAL    ESTATE. 

suit,  incidentally  acquired  through  third  parties,  will  not  conclude 
him." 

The  better  opinion  seems  to  he  that  the  covenantor  is  as  much 
bound  by  notice  to  appear  and  prosecute  a  suit  against  an  adverse 
claimant  of  the  estate  begun  by  the  covenantee  as  he  is  to  defend 
one  instituted  against  him.88  This,  however,  has  been  denied  upon 
the  ground  that  there  is  no  principle  upon  which  the  covenantor 
can  'be  substituted  as  plaintiff  in  the  action.89  The  covenantee, 
after  beginning  a  suit  against  the  adverse  claimant  and  notifying 
the  covenantor  to  appear  and  prosecute,  may  dismiss  the  suit  with- 
out affecting  his  right  to  recover  on  the  warranty.90 

No  particular  form  of  notice  is  necessary;  it  will  be  sufficient  if 
it  explicitly  notifies  the  covenantor  of  the  suit  and  requests  him  to 
defend  it.91 

It  has  been  held  that  the  notice  must  be  in  writing,92  but  the 
weight  of  authority  establishes  the  sufficiency  of  a  verbal  notice.98 

the  covenantor,  pending  an  action  of  ejectment  against  the  covenrantee,  wrote 
to  him  as  follows:  "I  must  defend  the  action.  I  have  consulted  a  lawyer 
here,  and  have  given  him  a  fee.  He  recommends  removing  it  to  the  Supreme 
Court.  TKe  costs  I  expect  to  pay.  You  did  right  to  employ  a  lawyer.  If 
another  is  wanted  you  must  employ  one.  I  cannot  attend  myself,"  it  wa« 
held  that  the  covenantor  was  bound  by  a  judgment  against  the  defendant. 
Leather  v.  Poultney,  4  Binn.  (Pa.)  356,  per  TILGIIMAN,  J. 

"Somers  v.  Schmidt,  24  Wis.  419;  1  Am.  Rep.  191;  Fernbach  v.  Stein, 
146  N.  Y.  Supp.  1078. 

"Park  v.  Bates,  12  Vt.  381;  36  Am.  Dec,  347;  Pitkin  v.  Leavitt,  13  Vt. 
379;  Brown  v.  Taylor,  13  Vt.  637;  37  Am.  Dec.  618;  Gragg  v.  Richardson, 
25  Ga.  570;  71  Am.  Dec.  190;  Walsh  v.  Dunn,  34  111.  App.  146.  In  DeJarn- 
ette  v.  Dreyfus,  166  Ala.  138,  51  So.  932,  it  was  held  that  the  covenantee 
could  not  recover  the  expenses  of  a  suit  by  him  to  restrain  the  enforcement 
of  an  alleged  incumbrance  on  the  land,  in  the  absence  of  notice  to  the 
covenantor  of  the  intention  to  bring  such  suit. 

Terrell  v.  Alder,  8  Humph.  (Tenn.)  43.  And  in  North  Carolina  it  has 
been  held  that  if  the  covenantee  sues  an  intruder,  the  fact  that  the  covenantor 
will  not  produce  his  title  deeds  in  aid  of  the  prosecution  gives  the  plaintiff 
no  rights  against  him.  Wilder  v.  Ireland,  8  Jones  L.  (N.  C.)  88. 

"White  v.  William*,  13  Tex.  258. 

"Williams  v.  Burg,  9  Lea  (Tenn.),  455;  Richstein  v.  Welch,  197  MAM. 
224,  83  N.  E.  417. 

"•Mason  v.  Kellogg,  38  Mich,  132.  BRONSON,  J.,  in  Miner  v.  Clark,  16 
Wend.  (N.  Y.)  425.  Verbal  notice  of  an  application  for  the  appointment  of 
commissioners  to  assign  dower  is  not  conclusive  upon  those  interested.  In  re 
Cooper,  15  Johns.  (N.  Y.)  533.  In  Mason  v.  Kellogg,  supra,  the  court  said: 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET   ENJOYMENT.       467 

A  judgment  of  eviction  rendered  against  the  covenantee  with- 
out notice  to  the  covenantor,  has,  in  some  instances,  been  held 
prima  facie  evidence  of  paramount  title  in  the  evictor  on  behalf 
of  the  covenantee  when  suing  for  a  breach  of  the  covenant  of  war- 
ranty.94 But  the  better  opinion  appears  to  be  that  in  such  a  case  the 
judgment  is  evidence  tending  to  show  an  eviction  only,  the  bur- 
den still  being  upon  the  covenantee  to  show  that  the  eviction  was 
under  a  paramount  title.95  If  he  neglects  to  give  the  notice,  he 

"  Upon  full  consideration  we  think  the  dictates  of  policy,  the  force  of  analogy, 
and  weight  of  reason  require  the  notice  to  be  in  writing.  Our  policy  has 
always  favored  written  memorials  of  title  to  real-  estate,  and  in  view  of  the 
effect  which  the  law  attributes  to  this  proceeding,  it  is  sufficiently  near  being 
a  fact  of  title  to  be  within  the  policy.  It  bears  a  striking  analogy  to  the 
ancient  process  of  voucher  and  summons  and  similar  proceedings  in  some 
of  our  States,  and  of  course  such  proceedings  could-  not  be  verbal.  It  con- 
templates the  introduction  of  the  covenantor  and  the  entire  prosecution  of 
the  defense  in  complete  accordance  with  his  views  and  under  his  direction. 
It  is  essentially  a  legal  proceeding,  and  it  is  a  well-recognized  general  rule 
that  every  notice  of  that  character  must  be  in  writing." 

93  Miner  v.  Clark,  15  Wend.  (N.  Y.)  425,  BBONSON,  J.,  dissenting.  Somers 
v.  Schmidt,  24  Wis.  419;  1  Am.  Rep.  191.  The  sufficiency  of  a  verbal  notice 
seems  to  have  been  assumed  in  Collingwood  v.  Irwin,  3  Watts  (Pa.),  306, 
and  in  Greenlaw  v.  Williams,  2  Lea  (Tenn.),  533;  Sarlls  v.  Beekman,  55  Ind. 
App.  638,  104  N.  E.  598;  Morrette  v.  Bostwick,  111  N.  Y.  Supp.  1021,  127 
App.  Div.  701.  In  Cummings  v.  Harrison,  57  Miss.  275  (1879),  it  was  said: 
"  In  order  to  bind  the  warrantor  by  the  result  of  an  action  of  ejectment 
against  the  party  holding  under  him,  and  to  conclude  him  from  showing  title 
when  he  is  sued  on  his  warranty,  it  is  not  necessary  for  the  notice  to  him 
by  the  defendant  in  the  action  of  ejectment  to  be  in  writing  or  in  any  par- 
ticular form,  or  that  a  demand  should  be  made  of  him  to  defend  the  action. 
If  the  warrantor  has  reasonable  notice  of  the  action  against  his  warrantee, 
and  an  opportunity  to  defend  it,  he  will  be  bound  by  the  result,  and  when 
sued  on  his  warranty,  cannot  be  heard  to  show  that  the  action  of  ejectment 
might  have  been  successfully  defended.  He  should  have  interposed  such 
defense  then,  or  ever  afterwards  be  silent." 

94 Leathers  v.  Poultney,  4  Binn.  (Pa.)  352;  Paul  v.  Witman,  3  Watts  &  S. 
(Pa.)  407;  Collingwood  v.  Irwin,  3  Watts  (Pa.),  306,  310.  Pitkin  v.  Leavitt, 
13  Vt.  385;  King  v.  Kerr,  5  Hamm.  (Ohio)  154;  22  Am.  Dec.  777;  Simpson 
v.  Belvin,  37  Tex.  675.  In  Sonferville  v.  Hamilton,  4  Wheat.  (U.  S.)  230,  the 
court  was  divided  upon  this  point.  Where  the  covenantee  -was  evicted  in 
consequence  of'the  vacation  of  a  sheriff's  deed  under  execution  sale  in  a  suit 
to  which  the  covenantor  was  a  party,  notice  to  the  covenantor  and  request 
to  defend  were  unnecessary.  Arnold  v.  Joines,  50  Okl.  4,  150  Pac.  130. 

"Graham  v.  Tankersley,  15  Ala.  634;  Hinds  v.  Allen,  34  Conn.  195;  Rhode 
v.  Green,  26  Ind.  83;  Walton  v.  Cox,  67  Ind.  164;  Patton  v.  Kennedy,  1  A.  K. 


468  MAKKETABLE    TITLE    TO    BEAL    ESTATE. 

must  come  prepared  to  prove  that  the  evictor  had  the  better  title. 
This,  as  has  been  well  said,  imposes  no  hardship  upon  him,  and 
subjects  him  to  but  little  inconvenience.  It  by  no  means  follows 
that  a  judgment  in  ejectment  against  a  grantee  is  founded  upon 
the  invalidity  of  the  grantor's  title.  The  judgment  may  bo 
qbtained  by  collusion;  by  a  failure  of  the  defendant  to  make 
proof  of  the  title  under  which  he  entered ;  or  under  a  conveyance 
from  the  covenantee  himself;  or  under  a  tax  title  originating  in 
his  own  default.96 

The  notice  must  be  given  in  reasonable  time.97  It  will  suffice  if 
time  enough  is  allowed  to  prepare  the  case  for  trial.  If  ejectment 
has  been  actually  begun  against  the  covenantee,  it  is  immaterial 
that  his  notice  to  defend  was  given  before  the  complaint  or  declara- 
tion in  ejectment  was  filed.98  Whether  notice  has  or  has  not  been 
given  to  the  covenantor  to  appear  and  assist  in  the  defense  of  a 
suit  attacking  the  title  conveyed  by  him  is  a  question  for  the  jury." 
The  sufficiency  of  the  notice,  when  given,  is  to  be  determined  by 
the  court.1  Xotice  to  the  covenantor  to  appear  and  defend  a  suit 
by  the  adverse  claimant  is  not  indispensable,  nor  a  condition  prece- 
dent, to  the  right  of  the  covenantee  to  recover  on  the  warranty  if 
the  suit  result  in  an  eviction.  It  is  prudent,  however,  to  give  the 
notice  in  order  to  dispense  with  proof  that  the  eviction  was  under 
a  paramount  title.2  But  in  Louisiana  it  has  been  hold  that  if  the 

Marsh.  (Ky.)  288;  10  Am.  Dec.  744;  Devour  v.  Johnson,  3  Bihh  (Ky.),  410; 
Booker  v.  Bell.  3  Bibb  (Ky.),  175;  0  Am.  Dec.  641 ;  Booker  v.  Meriweather,  4 
Litt.  (Ky.)  212;  Cox  v.  Strode,  4  Bibb  (Ky.),  4:  5  Am.  Dec.  603;  Ryerson  v. 
Chapman,  66  Me.  557;  Hardy  v.  Nelson,  27  Me.  525:  Hines  v.  Jenkins,  64  Mich. 
469;  31  X.  W.  Rep.  432;  Fields  v.  Hunter,  8  Mo.  128;  Holladay  v.  Menifee,  30 
Mo.  App.  207;  Dalton  v.  Bowker,  8  Xev.  190;  Middloton  v.  Thompson,  1  Spear 
L.  (S.  C.)  67;  .Stevens  v.  Jack,  3  Yerg.  (Tenn.),403,  case  of  personal  property; 
Clark  v.  Munford,  62  Tex.  531;  Ca*ea  v.  Field  (Tex.  Civ.  App.)  86  8.  W. 
Rep.  52. 

"Si*  v.  Woodruff,  15  111.  15;  Brady  v.  Spurck,  27  111.  479. 

"Middle-ton  v.  Thompson,  1  Spear  L.  (S.  C.)  67;  Davis  v.  Wilbourne,  1 
Hill  L.  (S.  C.)  28;  26  Am.  Dec.  154.  The  notice  must  have  been  given  in 
time  to  allow  the  covenantor  reasonable  opportunity  to  prepare  his  defense, 
otherwise  the  judgment  will  not  be  conclusive  upon  him.  Morrette  v.  Bost- 
wick,  111  X.  Y.  Supp.  1021,  127  App.  Div.  701. 

"Cook  v.  Curtis,  68  Mich.  611;  36  X.  W.  Rep.  692. 

* Collingwood  v.  Irwin,  3  Watts  (Pa.),  310. 

'Rawle  Covt«.  (5th  ed.)  f  120. 

'Chapman  v.  Holmes,  5  HalM.    (10  X.  ,1.  L.)   24:   King  v.  Kcrr.  5  Ohio. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       469 

covenantor  loses  a  good  defense  that  he  might  have  made  if  he  had 
been  seasonably  called  upon  to  defend  the  title,  the  covenantee 
cannot  recover  on  the  warranty.3  A  record  of  a  judgment  of  evic- 
tion which  appears  to  be  a  complete  transcript  will  be  received  in 
evidence  in  an  action  for  breach  of  warranty,  though  not  certified 
to  be  full  and  complete.4  It  has  been  held  that  if  judgment  in 
ejectment  be  recovered  against  the  covenantee,  not  on  the  ground 
that  the  plaintiff's  title  was  superior  to  that  of  the  covenantor,  but 
on  the  ground  that  the  defendant  in  ejectment  was  precluded  by 
the  acts  and  declarations-  of  his  immediate  grantor  from  taking 
refuge  under  the  good  title,  the  latter  will  not  be  bound  by  the 
judgment,  though  he  was  notified  to  appear  and  defend  the  suit.5 

Whether  notice  was  or  was  not  given  the  covenantor  to  appear 
and  defend,  is  a  question  of  fact  for  the  jury.6 

Notwithstanding  notice  to  the  covenantor  to  appear  and  defend 
a  suit  attacking  the  title,  the  covenantee  must,  if  evicted,  show,  in 
an  action  for  breach  of  the  covenant,  that  the  eviction  took  place 
under  a  title  older  than  his  own ;  that  is,  a  title  not  derived  from 
himself,  unless  the  record  of  the  suit  in  which  he  was  evicted  shows 
that  fact.7  Therefore,  where  the  breach  of  warranty  complained 

158;  22  Am.  Dec.  777;  Pitkin  v.  Leavitt,  13  Vt.  3-79;  Kyerson  v.  Chapman, 
66  Me.  557;  Talbot  v.  Bedford,  Cooke  (Tenn.),  447;  Boyle  v.  Edwards,  114 
Mass.  373;  Wheelock  v.  Overshiner,  (Mo.)  19  S.  W.  Rep.  640.  The  foregoing 
cases  are  largely  founded  on  Smith  v.  Compton,  3  Barn.  &  Ad.  407,  a  case  in 
which  the  covenantor  compromised  a  suit  against  himself  by  the  adverse 
claimant  at  £500,  and  was  afterwards  permitted  to  recover  the  amount  so 
paid  from  the  covenantor,  though  the  latter  was  not  notified  of  the  adverse 
claimant's  suit.  TENTERDEN,  C.  J.,  said :  "  The  only  effect  of  want  of  notice 
in  a  case  such  as  this  is  to  let  in  the  party  who  is  called  upon  for  an 
indemnity  to  show  that  the  plaintiff  has1  no  claim  in  respect  of  the  alleged 
loss." 

3  Kelly  v.  Wiseman,  14  La.  Ann.  661. 

'Radcliff  v.  Ship,  Hard.  (Ky.)  299. 

5  Kelly  v.  Dutch  Church,  2  Hill   (N.  Y.),  105. 

•Cox  v.  Bradford,  101  Ark.  302,  142  S.  W.  170;  Morgan  v.  Muldoon,  82 
Ind.  347 ;  Pence  v.  Rhonemus,  58  Ind.  App.  268,  108  N.  E.  129. 

'Folliard  v.  Wallace,  2  Johns.  (N.  Y.)  395;  Williams  v.  Wetherbee,  2  Aik. 
(-Vt.)  337;  Knapp  v.  Marlboro,  34  Vt.  235;  Pitkin  v.  Leavitt,  13  Vt.  379, 
384;  Swazey  v.  Brooks,  34  Vt,  451.  See  cases  cited,  post,  §  176.  Parol 
evidence  of  testimony  given  on  the  trial  of  ejectment  against  the  covenantee 
is  admissible  to  show1  that  recovery  was  under  a  title  derived  from  the 
covenantor.  Leather  v.  Poultney,  4  Binn.  (Pa.)  356. 


470  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

of  was  that  an  adverse  decree  had  been  rendered  against  the  cove- 
nantee  in  a  suit  against  him  to  quiet  title,  and  that  possession 
had  been  taken  by  the  adverse  claimant  under  that  decree,  but 
it  did  not  appear  that  the  title  on  which  such  decree  was  based 
was  older  than  or  prior  to  that  under  which  the  covenantor  con- 
veyed, it  was  held  that  the  plaintiff,  the  covenantee,  was  not 
entitled  to  recover,  since  there  was  nothing  to  show  that  the  title 
under  which  he  was  evicted  was  derived  from-  himself.8 

If  the  grantee  is  evicted*  by  one  who  claims  under  a  prior  deed 
from  the  grantor  such  eviction  is  a  breach  of  a  covenant  against  the 
acts  of  the  grantor  himself.  The  covenant  of  special  warranty 
embraces  past  as  well  as  future  acts- -of  the  grantor.'  An  eviction 
by  one  holding  under  a  prior  appointment  by  the  grantor  is  equiva- 
lent to  an  eviction  by  the  grantor  himself.10  It  has  been  held  that 
if  the  grantor  conveys  a  clear  title  with  general  warranty,  and  the 
grantee  fails  to  record  his  deed  in  due-time,  by  reason  of  which  he 
loses  the  estate  to  a  subsequent  grantee  of  the  covenantor  who  first 
records  his  deed,  there  is  no  breach  of  the  covenant  of  warranty, 
and  that  the  remedy  of  the  covenantee,  if  any,  is  by  action  on  the 
case  for  the  damages  actually,  sustained,  or  for  money  received  to 
his  use  by  the  covenantor.11  Other  cases,  however,  hold,  and  appar- 

•Peck  v.  Hough'taling,  3S  Mich.  127.  Clements  v.  Collins,  50  Ga.  124,  the 
court  saying:  "The  great  and- insurmountable  defect  in  the  evidence,  how- 
ever, is  that  it  fails  to  show  that  the  recovery  in  ejectment  UMS  had  upon 
title  outstanding  at  the  date  of  the  warranty.  Nothing  appeals  which  is  the 
least  inconsistent  with  .the  covenant.  Ten  years  had  elapsed  \\.hen  ejectment 
suit  was  brought,  and  no  date  in  the  pleadings  or  the  evidence  has  any  rela- 
tion whatever  to  so  remote  a  period-  in  the  past.  What  the  judgment  in 
ejectment  adjudicates  is  that  the  plaintiff  (in  the  ejectment)  had  title  at  the 
<  »minencement  of  that  action,  in  1869.  But  that  fact  is  perfectly  consistent 
with  title  in  the  warrantor  in  1859.  There  is  nothing  to  show  that  the  very 
deed  containing  -the  warranty  now  sued  on  was  not  a  part  of  the  chain  of 
title  upon  which  the  premises  were  recovered  in  the  action  of  ejectment." 

•Faries  v.  Smith,  11  Rich.  L.  (S.  C.)  82. 

"Calvcrt  v.  Se.bright,  15  Beav.  156. 

"Wade  v.  Cotnatock,  11  Ohio  St.  71,  upon  the  ground  that  the  covenant  of 
warranty  relates  solely  to  the  title  a»  it  waa  at  the  time  the  conveyance  wa* 
made,  and  mi-rely  binds  the  covenantor  to  protect  the  grantee  and  hifl  assign-. 
against  a  lawful  and  better  title  existing  before  or  at  the  time  of  the  grant. 
Mr.  Rawle  wems  to  approve  this  rule,  at  least  in  <-a*<-*  in  \\liirh  an  interest 
remains  in  the  grantor,  e.  g.,  an  equity  of  redemption,  the  conveyance  con- 
taining the  covenant  having  fceen  a  mortgage.  Covenants  for  Title  (5th  ed.), 
S  128,  n.  5.  See,  also,  Scott  v.  Scott,  70  Pa.  St.  244. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       471 

ently  with  greater  reason,  that  the  grantor  cannot  claim  that  the 
grantee  should  have  recorded  his  deed  in  order  to  guard  against  a 
subsequent  wrongful  transfer  of  the  same  title  to  another  by  the 
grantor  himself.  The  covenant  of  warranty  includes  a  covenant 
against  all  persons  claiming  by,  through,  or  under  the  grantor,  and 
the  case  mentioned  comes  literally  within  these  terms.  The  doc- 
trine of  estoppel  applies.12 

§  176.  PLEADING  AND  BURDEN  OF  PROOF."  In  an  action  on 
a  covenant  of  warranty  the  plaintiff  must  set  out  the  covenant  or 
its  substance  in  his  declaration  or  complaint  and  then  aver  an 
eviction  by  one  having  lawful  right.13  It  is  not  sufficient  merely 
to  negative  the  words  of  the  covenant;  the  eviction  must  be 
alleged.14  But  it  is  not  necessary  that  the  facts  constituting  the 
eviction  15  nor  the  nature  of  the  eviction,  that  is,  whether  actual 

12  Curtis  v.  Deering,  12  Me.  499;  WiHiamson  v.  Williamson,  71  Me.  442; 
Lukens  v.  Nicolson,  4  Phila.  R.  22.     See,  also,  Maeder  v.  Carondelet,  26  Mo. 
114.    Staples  v.  Flint,  28  Vt.  794,  semble. 

13  See  form,  2  Chit.  PI.  546.    Brady  v.  Peck,  99  Ky.  42;  34  S.  W.  Rep.  206; 
Gano  v.  Green,  116  Ga.  22,  42  S.  E.  Rep.  371;  Hampton  v.  Webster,  56  Neb. 
628,  77  N.  W.  Rep.  50;  Merrill  v.  Suing,  66  Neb.  404,  92.  N.  W.  Rep.  618; 
Sears  v.  Broady,  66  Neb.  207,  92  N.  W.  Rep.  214;  Dexter  v.  Manly,  4  Gush. 
(Mass.)    14;   Wilson  v.   Vreeland,   176  N.   C.   504,  97   S.   E.   427;    Joyner  v. 
Smith,   132  Ga.  779,  65  S.  E.  68.     A  covenant  of  warranty  should  not  be 
pleaded  as  a  covenant  for  quiet  enjoyment.     It  should  be  pleaded  according 
to  its  form,  leaving  the  effect  to  be  determined  in  the  action.    Peck  v.  Hough- 
taling,  38  Mich.  127. 

"Blanchard  v.  Hoxie,  34  Me.  378;  Wills  v.  Primm,  21  Tex.  380;  Raines  v. 
Callaway,  27  Tex.  678;  Thompson  v.  Brazile,  65  Ark.  495;  47  S.  W.  Rep.  299. 
A  pleading  by  the  covenantee,  alleging  inability  to  get  possession  of  the 
premises  because  held  by  a  third  person,  claiming  under  a  superior  title,  is 
fatally  bad,  unless  it  alleges  that  the  premises  were  so  held  at  the  time  of 
the  warranty,  or  that  the  person  in  possession  had-  been  adjudged  to  have  the 
paramount  title.  Jett  v.  Farmers'  Bank,  25  Ky.  L.  Rep.  817;  76  S.  W. 
Rep.  385. 

15Rickert  v.  Snyder,  9  Wend.  (N.  Y.)  420;  Townsend  v.  Morris,  6  Cow. 
(N.  Y.)  123;  Cheney  v.  Straube,  35  Neb.  521;  53  N.  W.  Rep.  479.  Compare 
Kleinberg  v.  Kinealy,  (Mo.  App.)  207  S.  W.  237,  where  held  that  an  allega- 
tion that  defendant  "  breached  the  said  warranty "  is  a  mere  conclusion  of 
law  and  insufficient,  and  that  the  facts  showing  the  breach  should  have  been 
alleged.  A  declaration  in  covenant  on  a  general  warranty  of  lands',  which 
states  that  the  defendant  had  no  title  at  the  time  of  the  sale,  that  ejectment 
had  been  brought  against  the  plaintiff  by  a  stranger,  of  which  he  gave  the 
defendant  notice,  and  that  plaintiff  had  afterwards  been  ewcted  in  due  course 
of  law  is  sufficient.  Swenk  v.  Stout,  2  Yeates  (Pa.),  470.  An  averment  that 


472  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

or  constructive,  be  alleged ; 18  nor  is  it  necessary  that  the  para- 
mount title  under  which  the  eviction  transpired  nor  the  nature 
thereof  be  set  forth  particularly.17  Nor  need  the  plaintiff  allege 
that  he  relied  on  the  defendant's  warranty,  for  that  were  to 
allege  what  the  law  presumes.18  But  he  must  aver  that  he  was 
evicted  by  one  having  a  lawful  title19  and  that  such  title  was 
older  and  better  than  that  protected  by  the  covenant,  otherwise 
it  would  not  appear  but  that  the  plaintiff  was  evicted  under  a 
title  derived  from  himself.20  Of  course,  however,  if  the  warranty 
was  against  the  claims  of  a  particular  person,  it  would  be  suf- 
ficient to  allege  (that  the  plaintiff  was  evicted  by  that  person  with- 
out averring  that  his  title  was  older  or  better  than  that  of  the 
defendant  or  that  it  existed  at  the  time  of  the  covenant.21  It 

the  covenantor  had  not  a  good  and  sufficient  title  to  the  land,  and  that  by 
reason  thereof  the  plaintiff  was  ousted  and  dispossessed  of  the  premises  by 
due  course  of  law  is  sufficient  as  an  averment  of  an  eviction  by  title  para- 
mount. Banks  v.  Whitehead,  7  Ala.  83;  Reese  v.  McQuillikin,  7  Ind.  451; 
Mills  v.  Rice,  3  Neb.  76.  In  Day  v.  Chism,  10  Wh.  (U.  S.)  449,  the  following 
language  in  the  declaration  "  that  the  said  O.  had  not  a  good  and  sufficient 
title  to  the  said  tract  of  land,  and  by  reason  thereof  the  said  plaintiffs  were 
ousted  and  dispossessed  of  the  said  premises  by  due  course  of  law,"  was  held 
sufficient  as  a  substantial  averment  of  an  eviction  by  title  paramount. 

"Reese  v.  McQuilliken,  7  Ind.  451;  Sheffey  v.  Gardner,  79  Va.  313. 

"Talbot  v.  Bedford,  Cooke  (Tenn.),  447.  But  see  Prestwood  v.  McGowan, 
128  Ala.  267;  29  So.  Rep.  386,  where  it  was  held  that  the  paramount  title 
must  be  substantially  set  forth. 

"Xorris  v.  Kipp,  74  Iowa,  444;  38  N.  W.  Rep.  152. 

"Greenby  v.  Wilcox,  2  Johns.  (N.  Y.)  1;  Webb  v.  Alexander,  7  Wend. 
(N.  Y.)  286. 

"Wotton  v.  Hele,  2  Saund.  177  and  n.  10;  Hayes  v.  Bickerstaff,  Vaugh. 
118;  Folliard,  v.  Wallace,  2  Johns.  (X.  Y.)  395;  Greenly  v.  Wilcox,  2  Johns. 
(X.  Y.)  1;  Grannis  v.  Clnrk,  8  Cow.  (N.  Y.)  36;  Crisfield  v.  Storr,  3(5  M.T. 
148;  11  Am.  Rep.  480,  and  analogous  cases  there  cited.  Pitkin  v.  Leavitt,  13 
Vt.  384;  Giddings  v.  Canfield,  4  Conn.  482;  Jones  v.  Jones,  87  Ky.  82,  7  S.  W. 
Rep.  886;  Chenault  v.  Thomas,  26  Ky.  L.  Rep.  1029;  83  S.  W.  Rep.  109. 
So,  alxo,  in  an  action  for  rent  a  plea  of  eviction  by  title  paramount  must  aver 
that  such  title  existed  before  the  demise.  Naglee  v.  Ingcrsoll,  7  Pa.  St.  185, 
205.  An  averment  that  the  plaintiff  was  evicted  by  the  holder  of  "  a  superior 
and  better  title  than  the  one  sold  by  the  defendant,"  is  sufficient  as  an  aver- 
ment that  the  plaintiff  was  not  evicted  under  a  title  derived  from  himself. 
Woodward  v.  Allen,  3  Dana  (Ky.),  164. 

"Patton  v.  Kennedy,  1  A.  K.  Marsh.  (Ky.)  389;  10  Am.  Dec.  744;  Pence 
v.  Duval,  9  B.  Mon.  (Ky.)  49.  The  necessity  for  such  an  averment  is  even 
greater  where  there  have  been  several  intermediate  conveyances,  as  in  the 


COVENANTS  OF   WARRANTY  AND  FOR  QUIET  ENJOYMENT.       473 

is  not  necessary  to  aver  that  the  title  to  the  land  has  been  tried ;  it 
is  sufficient  to  aver  an  eviction  by  paramount  title,  and  the  superi- 
ority of  th)at  title  will  be  determined  at  the  trial ; 22  nor  is  it  neces- 
sary, where  the  plaintiff  was  evicted  by  judgment  and  process  in 
a  possessory  action,  to  aver  that  the  defendant  had  notice  of  the 
action  and  was  requested  to  defend  it.23  Nor  is  it  necessary  to 
allege  that  the  grantor  did  not,  after  executing  the  covenant, 
acquire  a  title  which  would  enure  to  the  benefit  of  the  grantee  by 
estoppel;24  nor  that  the  covenantee  relied  on  the  warranty,  since 
that  is  a  -presumption  of  law.25  The  covenant  must,  of  course,  be 
truly  described,  and  the  breach  averred  not  to  be  within  iany  of 
the  restrictions,  limitations  or  qualifications  of  the  covenant,  if 
any,  contained  in  the  deed.  Thus,  where  the  declaration  set  forth 
a  conveyance  and  warranty  of  the  entire  estate  in  fee,  and  a  con- 
veyance with  warranty,  subject  to  a  mortgage,  appeared  in  evi- 
dence, the  variance  was  held  fatal.26  The  plaintiff  must  also 
allege  that  the  title  or  claim  under  which  he  w#s  evicted,  came 
within  the  defendant's  covenants.27  It  will  be  sufficient,  however, 
if  the  covenant  be  stated  according  to  its  legal  effect  and  not  in 
the  precise  language  of  the  deed.28 

Burden  of  proof.    The  plaintiff  in  .an  action  for  breach  of  the 
covenant  of  warranty  alleging  an  eviction,  as  he  must,  has  the 

latter  case  it  would  be  intended,  if  the  declaration  did  not  aver  that  the 
title  of  the  party  evicting  was  older  and  better  and  existing  at  the  date  of 
the  covenant,  that  he  had  derived  it  from  one  of  the  intermediate  grantees. 
In  such  a  case  the  title  of  the  party  evicting  might  well  be  older  and  better 
than  that  of  the  defendant  in  the  ejectment,  and  yet  not  older  and  better  than 
that  of  the  covenantor,  and  if  it  was  not  older  and  better  than  the  latter 
there  would  be  no  breach  of  the  covenant.  Language  of  GRASON,  J.,  in  Cris- 
field  v.  Storr,  36  Md.  148;  11  Am.  Rep.  480.  An  averment  that  a  stranger  had 
brought  suit  and  recovered  the  land,  without  alleging  against  whom  he 
recovered,  or  that  the  plaintiff's  (grantee's)  title  had  been  called  in  question, 
or  that  the  title  of  such  claimant  was  superior  to  that  of  the  plaintiff,  does 
not  sufficiently  allege  a  breach  of  the  covenant  of  warranty.  Wills  v.  Primm. 
21  Tex.  380. 

22Patton  v.  Kennedy,  1  A.  K.  Marsh.   (Ky.)   288;  10  Am.  Dec.  744. 

23  Rhode  v.  Green,  26  Ind.  83. 

24  Mason  v.  Cooksey,  51  Ind.  519. 

25Norris  v.  Kipp,  74  Iowa,  444;  381  N.  W.  Rep.  152. 
26Shafer  v.  Wiseman,  47  Mich.  63;   10  N.  W.  Rep.  104. 
27 Dexter  v.  Manly,  4  Cush.   (Mass.)    14. 
28  Bland  v.  Thomas,    (Ky.),  3  S.  W,  Hep.  595. 

60 


474  MAUKKTAHLK    TITLE    TO    KEAL    ESTATE. 

affirmative  of  the  issue,  and  the  burden  of  proof  lies  on  him  to 
show  the  eviction  under  a  lawful  title  older  than  that  under  which 
he  held.29  But  the  hurden  shifts  if  the  defendant  so  pleads  as  to 
have  the  affirmative  himself.  Thus,  where  the  breach  alleged  was 
that  the  title  was  outstanding  in  another  by  reason  of  which  the 
plaintiff  could  not  get  possession,  and  the  defendant  pleaded  that 
the  better  title  was  not  so  outstanding  but  had  been  by  himself  con- 
veyed to  the  plaintiff,  it  was  held  fhat  the  burden  was  upon  him  to 
show  that  the  -title  so  conveyed  was  paramount.30  And  if  the  cove- 
uantee  shows  that  he  has  been  evicted  or  kept  out  of  possession  by 
one  claiming  title  the  burden  lies  upon  the  covenantor  to  show  that 
his  title  was  paramount  to  that  of  the  evictor.  The  reason  for  this 
rule  is  that  a  party  in  possession  of  lands  is  always  presumed  to 
have  a  valid  title." 

The  deed  containing  the  covenant  if  properly  executed  and 
recorded,  will  be  received  in  evidence  to  show  the  warranty,  with- 
out proof  of  its  execution.82 

§  177.  COVENANT  FOB  QUIET  ENJOYMENT.  The  covenant 
for  quiet  enjoyment  and  the  covenant  for  warranty  are  in  effect 
the  same,88  the  only  difference  being,  it  seems,  that  the  former  is 
broken  by  an  actual  disturbance  of  the  possession  of  the  covenantee 
by  one  having  a  superior  right,  while -the  latter  is  not  broken  until 
the  disturbance  has  culminated  in  an  eviction.34  Thus,  ejectment 

"Peck  v.  Houghtaling,  88  Mich.  127.    Holladay  v.  Menifee,  30  Mo.  App.  215. 

••Owen  v.  Thomas,  33  111.  320.  In  Georgia  it  has  been  held  that  if  the 
covenantee  shows  that  since  his  purchase  the  land  has  been  Hold  under  execu- 
tion against  a  atranr/er,  and  that  he  surrendered  the  possession  of  awn  pur- 
chase (the  defendant  in  the  execution  having  had  possession  after  judgment 
entered  against  him),  the  burden  will  be  cast  on  the  covenantor  to  show  that 
the  person  to  whom,  the  surrender  was-  made  did  not  have  the  better  title. 
Taylor  v.  Stewart,  54  Ga.  81. 

"H«-yn  v.  Ohman,  (Nob.)  60  N.  W.  Rep.  952,  <-iting  Ward  v.  M«  Tntosh,  12 
Ohio  St.  231.  Jones  v.  Bland,  112  Pa.  St.  176;  2  Atl.  Rep.  541.  Brown  v. 
Fi-agin.  :t7  Neb.  25ft;  55  N.  W.  Rep,  1048. 

"Williams  v.  Weatherbee,  2  Aik.   (Vt.)  337. 

"3  Washh.  Real  Prop.  467  (660);  Rawle  Covts.  for  Title  (5th  ed.),  5  96. 
Fowler  v.  Poling,  2  Barb.  (N.  Y.)  300;  Rea  v.  Minkler,  5  Lans.  (X".  Y.)  196. 

••See  2  Sugd.  Vend.  273  (001)  and  Rawle  Covts.  for  Title  (5th  ed.),  S  130, 
where  it  is  said  that  a  suit  in  equity  against  tin-  purchaser  threatening  th<- 
title  i»  a  hn-a<-h  <>f  the  covenant  for  quiet  enjoyment.  A  lessee  claiming  that 
he  has  been  evicted  from  a  ground  rent,  must  show  that  his  tenancy  has  bee,u 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       475 

brought  by  the  true  owner  against  the  covenantee  is  a  breach  o£ 
the  covenant  for  quiet  enjoyment,  while  there  is  no  breach  of  the 
covenant  of  warranty  until  the  action  has  resulted  in  an  eviction.35 
A  suit  in  equity  in  which  it  is  sought  to  deprive  the  covenantee  of 
his  estate  is  as  much  a  breach  of  the  covenant  for  quiet  enjoyment 
as  an  action  of  ejectment,  or  other  possessory  proceeding.36  So, 
also,  a  suit  in  which  a  stranger  is  adjudged  to  be  a  tenant  in  com- 
mon with  the  covenantee.37  The  principal  use  and  employment 
of  this  covenant,  therefore,  is  in  the  creation  and  conveyance  of 
estates  for  years.  It  is  broken  only  by  an  actual  disturbance  of 
the  possession  by  one  having  a  better  right,38  unless  the  disturbance 
was  by  the  lessor  himself  or  his  agents.  In  the  latter  event  the 
covenant  is  broken  without  regard  to  the  question  of  paramount 
title.39  With  respect  to  the  acts  of  the  lessor,  it  is  immaterial  that 
the  lease  does  not  contain  an  express  covenant  for  quiet  enjoyment. 
Such  a  covenant  will-  always  be  implied  from  4he  lease  itself  in 
case  of  a  tortious  disturbance  by  the  lessor.40 

The  covenant  for  quiet  enjoyment  like  the  covenant  of  warranty, 
is  not  a  covenant  that  the  grantor  is  seised  of  an  idefeasible  estate. 
Therefore,  it  is  not  broken  where  the  grantor,  purporting  to  con- 
vey a  fee,  had  only  a  life  estate,  so  long  as  the  grantee  remains 
in  the  undisturbed  possession  of  the  life  estate.41 

successfully  interfered  with.  A  mere  suit  to  prevent  him  from  using  the 
premises  for  particular  purposes  will  not  amount  to  a  breach  of  the  covenant. 
Jarden  v.  Lafferty,  (Pa.  St.)  7  Atl.  Rep.  743.  The  covenant  is  not  broken  by 
a  proceeding  which  interferes  only  with  a  particular  mode  of  enjoyment  of 
the  premises.  Rawle  Covts.  (5th  ed.),  §  130.  Possession  by  a  tenant  under 
an  unexpired  lease  operates  a  breach  of  this  covenant.  Morris  v.  Hesse,  (Tex. 
Civ.  App.)  210  S.  W.  710.  In  Simonds  v.  Diamond  Match  Co.,  159  Mich.  241; 
123  N.  W.  1132,  it  was  held  that  such  possession  was:  a  breach  of  the  cove- 
nant for  quiet  enjoyment,  but  not  a  breach  of  the  covenant  of  warranty. 

35  Stewart  v.  West,  14  Fa.  St.  336.  N.  Y.  Etc.  Coal  Co.  v.  Graham,  226 
Pa-  348;  75  Atl.  657. 

MSugd.  Vend.   (14th  ed.)   601;  Rawle  Covts.   (5th  ed.),  §  130. 

3"  Black  v.  Barto,  65  Wash.  502;  118  Pae.  623;  Ann.  Cas.  1913  B,  846. 

*  Ante,  §  142. 

19  Moore  v.  Weber,  71  Pa.  St.  429;  10  Am.  Rep.  708. 

40  Dexter  v.  Manly,  4  Gush.   (Mass.)   14. 

"Wilder  v.  Ireland,  8  Jones  L.  ('N.  C.)  88.  Of  course,  if  the  life  estate  has 
fallen  in  and  the  reversioner  has  entered,  the  covenant  is  broken.  Parker  V. 
Richardson,  8  Jones  L.  (N~.  C.)  452. 


CHAPTER  XV. 

COVENANT  FOR  FURTHER  ASSURANCE. 

IN  GENERAL.     §    178. 

BREACH.     ESTOPPEL.     ASSIGN  ABILITY.     DAMAGES.     §    179. 

§  178.  IN  GENERAL.  This  covenant  is  usually  expressed  in 
the  following  words:  "And  that  he,  the  said"  (grantor),  shall  at 
all  times  hereafter,  at  the  request  and  expense  of  ;the  said 
(grantee),  his  heirs  and  assigns,  make  and  execute  such  other 
assurances  for  the  more  effectual  conveyance  of  the  said  premises 
as  shall  be  by  him  reasonably  required."  It  is  one  of  the  six 
covenants  inserted  in  conveyances  in  those  States  or  localities  in 
which  it  is  customary  to  employ  all  of  the  "  full  "  or  "  usual  " 
covenants  for  title.  Actions  at  law  for  breach  of  the  covenant 
for  further  assurance  are  of  infrequent  occurrence,  and  few  cases 
of  that  kind  are  to  be  met  with  on  this  side  of  the  Atlantic.  The 
remedy  upon  the  covenant  is  usually  sought  in  equity;2  that  is, 
to  compel  the  vendor  to  execute  the  further  assurance,  or,  it 
seems,  to  remove  an  incumbrance  from  the  premises.*  The  exe- 
cution of  the  further  assurance  will,  of  course,  operate  to  pass  any 
estate  which  the  vendor  may  have  acquired  after  the  execution 
of  the  original  conveyance.  It  is  to  be  observed,  however,  that 
the  terms  "  general "  or  "  special "  as  descriptive  of  the  other 
covenants  for  title  is  not  applicable  to  the  covenant  for  further 

1  Rawle  Covts.  (5th  e<l.)  p.  20.  This  language  does  not  in  terms  require  the 
vendor  to  remove  an  incumbrance  from  the  premises.  It  seems,  however,  that 
the  agreement  "  to  make  and  execute  such  other  assurances  "  is  construed  to 
have  that  effect.  2  Sugd.  Vend.  294  (613)  ;  Platt  Covts.  344.  King  v.  Jones, 
5  Taunt.  427. 

•Post,  S  207.  2  Sugd.  Vend.  204  (013);  Rawle  Covts.  (5th  ed.),  8  98. 
Cochran  v.  PaHrault,  54  M-l.  16. 

*2  Sugd.  Vend.  (14th  Kng.  ed.)  613.  King  v  Jones,  5  Taunt.  427.  Thin 
covenant  will  be  found  of  great  practical  importance  where  the  purchaser 
desires  to  compel  the  grantor  to  remove  an  incumhrance  from  the  estate  which 
exceeds  the  purchase  price  of  the  premises.  This  cannot  he  done  under  a 
covenant  of  warranty.  Kant  Tenn.  Nat.  Bank  v.  First  Nat.  Rank,  7  Lea 
(Trim.1.  420,  and  it  may  he  douhtful  whether  it  can  be  done  under  a  cove- 
nant againxt  inirumbranccH  under  the  rule  which  limit*  the  liability  of  the 
covenantor  to  the  consideration  money  and  interest.  Ante,  j|  131. 

T476] 


COVENANT   FOE  FURTHER  ASSURANCE.  477 

assurance  as  it  is  usually  written.  In  this  respect,  it  is  depend- 
ent upon  the  other  covenants  for  title,  so  that  if  those  covenants 
are  of  a  kind  that  will  not  entitle  the  purchaser  to  a  conveyance 
of  the  after-acquired  estate,  or  to  have  an  incumbrance  removed 
by  the  vendor,  he  cannot  call  for  such  relief  in  equity  merely 
because  his  deed  contains  a  covenant  for  further  assurance.  In 
other  words,  such  a  covenant  in  a  mere  quit  claim  or  release 
would  not  entitle  the  purchaser  to  require  the  conveyance  of  any 
estate  which  the  grantor  may  thereafter  have  acquired.4  Nor  can 
the  purchaser  demand,  under  the  covenant  for  further  assurance, 
the  conveyance  of  a  greater  estate  or  interest  than  that  to  which 
he  is  entitled  under  the  original  conveyance.5  But  an  express 
covenant  in  a  quit-claim  deed  to  convey  the  after-acquired  estate 
will,  of  course,  entitle  the  grantee  to  such  a  conveyance.6 

A  covenant  for  further  assurance  operates  in  one  respect  as  well 
for  the  protection  of  the  grantor  as  for  the  benefit  of  the  grantee. 
Thus,  it  has  been  held  that  the  grantor  has  a  right  to  acquire  an 
outstanding  paramount  title  to  the  estate  by  reason  of  this  cove- 
nant, and  to  tender  the  title  so  acquired  in  satisfaction  of  a  breach 
of  the  other  covenants  for  title.7 

§  179.WHAT  CONSTITUTES  BREACH.  ESTOPPEL,  ASSIGN- 
ABILITY.  DAMAGES.  The  covenant  for  further  assurance  is  not 

4 This  is  Mr.  Rawle's  opinion  (Covts.  for  Title  [5th  ed.],  §  105),  citing 
Davis  v.  Tollemache,  2  Jur.  (N.  S.),  1181,  and  it  seems  clearly  sustainable, 
both  upon  reason  and  authority.  But  a  contrary  view  seems  to  have  been 
taken  in  the  case  of  Bennett  v.  Waller,  23  111.  106,  where  it  was  said  that 
under  a  covenant  for  further  assurance  contained  in  a  quit-claim  deed  "a 
subsequent  title  enures  as  well  as  under  a  covenant  of  warranty."  This  case 
can  probably  be  explained  upon  the  ground  that  the  quit  claim  under  con- 
sideration was  not  a  mere  release  of  all  the  grantor's  right  or  interest,  but  a 
conveyance  of  an  estate  of  a  particular  description,  which  operates  to  estop 
the  grantor  as  well  as  a  conveyance  with  general  warranty.  Van  Bensselaer 
v.  Kearney,  11  How.  (U.  S.)  297.  In  Armstrong  v.  Darby,  26  Mo.  517,  it  was 
held  that  a  covenant  for  further  assurance  in  a  conveyance  with  covenant 
against  incumbrances  created  by  the  grantor  only,  did  not  oblige  the  grantor 
to  remove  an  incumbrance  not  created  by  himself. 

5  Taylor  v.  Dabar,  1  Ch.  Cas.  274.  Uhl  v.  Ohio  River  R.  Co.,  51  W.  Va.  106; 
41  S.  E.  Rep.  340. 

•Lamb  v.  Burbank,  1  9awy.    (C.  C.)    227. 

7Cochran  v.  Pascault,  54  Md.  1.  Building  Co.  v.  Fray,  96  Va.  559;  32 
S.  E.  Rep.  58. 


478  MARKETABLE    TITLE    TO    REAL    ESTATE. 

broken  until  the  grantor  refuses  to  execute  such  further  convey- 
ance, devised  and  tendered  by  the  purchaser,  as  he  may.  reasonably 
require,  or  to  do  some  act  or  thing  necessary  to  perfect  the  title, 
such  as  may  be  reasonably  insisted  upon  by  the  purchaser.8  The 
vendor  cannot  be  required  to  execute  useless  and  unnecessary  con- 
veyances,9 nor  to  do  acts  in  themselves  impracticable  ;10  such  as  to 
procure  a  conveyance  from  a  person  non  compos  mentis"  or  to 
prociire  a  certain  thing  to  be  done  by  one  physically  incapable  of 
performance."  The  thing  to  be  done  must  also  be  lawful,"  and 
the  request  therefor  must  be  made  within  a  reasonable  time.14 

The  covenant  for  further  assurance  will  estop  the  grantor  from 
setting  up  an  after-acquired  title  to  the  estate.16  The  better  opinion 
seems  to  be  that  this  covenant  operates  an  actual  transfer  of  the 
after-acquired  estate;1'  it  has  been  held,  however,  that  the  cove- 
nant for  further  assurance  gives  the  grantee  merely  a  right  to  call 
for  a  conveyance  of  the  after-acquired  estate,  and  to  compel  a 
specific  performance  of  the  covenant  in  equity.17 

The  covenant  for  further  assurance  is  necessarily  prospective  in 
its  operation,  and  passes  with  the  land  to  subsequent  grantees.18 

•Rawle  Covts.  (5th  ed.),  8  90.  Sennet's  Case,  Cro.  Eliz.  9.  Miller  v. 
Parsons,  9  Johns.  (N.  Y.)  33«.  Fields  v.  Squires,  Deady  (U.  S.),  388.  The 
covenant  for  further  assurance  is  broken  if  the  grantor  refuses  to  procure  a 
release  of  an  incumbrance  upon  the  premises  which  he  is  bound  to  discharge. 
Colby  v.  Oagood,  29  Barb.  (N.  Y.)  349. 

•Gwynn  v.  Thomas,  2  G.  &  J.  (Md.)   420. 

"2  Sugd.  Vend.  295  (613).  In  Armstrong  v.  Darby,  26  Md.  517,  it  was 
held  that  the  statutory  covenant  for  further  assurance  implied  in  the  words 
"  grant,  bargain  and  sell  "  embraces  only  such  incumbrances  as  the  vendor 
has  control  of;  and  that  if  a  defect  cannot  be  supplied  by  the  grantor,  as 
where  there  is  an  outstanding  mortgage  created  by  a  prior  grantor,  the 
vendor  cannot  be  made  liable  on  his  covenant  for  further  assurance. 

11  A ii -.11.,  Moore,  124. 

"Anon.,  Mbore,  124,  a  case  in  which  it  was  sought  to  compel  a  woman  in 
travail  to  execute  the  assurance. 

"Heath  v.  Crealock,  L.  R.,  10  Ch.  App.  31. 

14  Nash  v.  Ashton,  T.  Jonea,  195. 

"Pierce  y.  Milwaukee  R.  Co.,  24  Wis.  553.     Bennett  v.  Waller,  23  111.  183. 

"Bennett  v.  Waller,  23  111.  183. 

"Chauvin  v.  Wagner,  18  Mo.  631. 

"Bennett  v.  Waller,  23  111.  97.  Oolby  v.  Osgood,  29  Barb.  (N.  Y.)  339. 
Clarke  v.  Priest,  47  N.  Y.  Supp.  489;  21  App.  Div.  174. 


COVENANT  FOR  FURTHER   ASSURANCE.  479 

The  breach,  when  it  occurs,  is  a  continuing  one,  and  may  be 
availed  of  by  him  who  suffers  the  ultimate  damage,  though  he  be 
not  the  one  who  made  the  demand  for  further  assurance.19 

The  plaintiff  can  recover  nominal  damages  only  for  a  breach 
of  the  covenant  for  further  assurance,  unless  he  can  show  that  he 
has  sustained  actual  damages.  The  mere  refusal  of  the  vendor 
to  execute  the  further  assurance  would  not  entitle  the  grantee  to 
actual  damages  unless  he  could  show  that  he  had  sustained  the 
ultimate  damage  that  would  result  from  the  refusal.20  If  the 
grantor  should  refuse  to  satisfy  an  incumbrance  on  the  premises, 
and  the  grantee  should  be  compelled  to  discharge  it  to  protect  his 
title,  he  would  doubtless  be  permitted  to  recover  as  damages 
the  amount  so  paid  by  him,  provided,  it  is  apprehended,  such 
amount  do  not  exceed  the  consideration  money  and  interest.21 

"Rawle  Covts.   (5th  ed.),  §  230. 

20Rawle  Covts.  for  Title  (5th  ed.),  §  195.  Burr  v.  Todd,  41  Pa.  St.  213, 
obiter.  Questions  as  to  the  measure  of  damages  for  a  breach  of  the  cove- 
nant for  further  assurance  are  not  likely  to  arise.  First,  because  the  remedy 
upon  this  covenant  is  usually  sought  in  equity;  and,  secondly,  because  such 
facts  as  would  entitle  the  purchaser  to  substantial  damages  for  a  breach  of 
this  covenant  would  nearly,  if  not  always,  amount  to  a  breach  of  the  covenant 
against  incumbrances  or  that  of  warranty,  and  the  purchaser  in  most  cases 
contents  himself  with  an  action  on  those  covenants. 

21  This  in  analogy  to  the  rule  that  the  damages  for  a  breach  of  the  covenant 
of  warranty,  seisin  or  against  incumbrances,  is  to  be  measured  by  the  con- 
sideration money.  No  reason  why  he  should  be  allowed  a  greater  measure  of 
damages  for  the  breach  of  the  one  covenant  than  for  the  breach  of  the  other 
can  be  perceived. 


CHAPTER  XVI. 

DETENTION"  OF  THE  PURCHASE  MONEY  WHEN  THERE  HAS  BEEN 
A  BREACH  OF  THE  COVENANTS  FOR  TITLE. 

GENERAL  RULE.     §   180. 

MERGER  OF  PRIOR  AGREEMENTS.     §    181. 
PURCHASE  WITH  KNOWLEDGE  OF  DEFECT.     §   182. 
RECOUPMENT.      §  183. 

RECOUPMENT  IN  FORECLOSURE  OF  PURCHASE-MONEY  MORT- 
GAGE.    §    184. 

PARTIAL  FAILURE  OF  CONSIDERATION.      §   185. 
ASSUMPSIT    TO   TRY   TITLE.       $   186. 

WHAT  CONSTITUTES  EVICTION.    §  m. 

DISCHARGE   OF  INCUMBRANCES.     §    188. 

RULE  IN  TEXAS.     §    189. 

RULE  IN  SOUTH  CAROLINA.      §    190. 

PLEADINGS.     §    191. 

RESUME.     §    192. 

§  180.  GENERAL  RULE.  In  most  cases  the  detention  of  the 
purchase  money  by  the  purchaser  of  lands  on  failure  of  the  title, 
amounts  to  an  election  on  his  part  to  rescind  the  contract.  In  a 
subsequent  portion  of  this  work1  under  the  head  of  "  Remedies  in 
Disaffirmance  or  Rescission  of  the  Contract  of  Sale,"  the  several 
rules  which  determine  the  rights  of  the-  purchaser  in  this  respect, 
will  be  found  stated  at  large,  except  the  rules  which  apply  where 
the  contract  has  been  executed  by  a  conveyance  with  certain  cove- 
nants for  title,  and  the  purchaser,  when  sued  for  the  purchase 
money,  sets  up  as  a  defense,  by  way  of  counterclaim  or  recoup- 
ment, his  eviction  from  the  premises  by  one  holding  under  a  prior 
incumbrance  or  a  better  title.  This  is  equivalent  to  an  inde- 
pendent action  by  the  purchaser  to  recover  for  a  breach  of  the 
covenants  for  title,  and  is,  therefore,  an  affirmance  of  the  contract 
on  his  part.  Hence,  it  has  been  deemed  proper  to  separate  this 
branch  of  the  law  of  detention  of  the  purchase  money  from  the 
general  treatment  of  that  subject,  and  to  discuss  the  same  in  this 
place  as  one  of  the  remedies  of  the  purchaser  in  affirmance  of  the 
contract  after  the  acceptance  of  a  conveyance  with  covenants  for 

•Post,  ch.  24.  et  »eq. 

[4801 


DETENTION  OF  PURCHASE  MONEY* BKEACII  OF  COVENANT.       481 

title.  We,  therefore,  proceed  to  lay  down  the  following  rule, 
which  should  be  read  as  one  of  the  series  of  propositions  of  law 
governing  the  right  of  the  purchaser  to  recover  back  or  to  detain 
the  purchase  money,  as  set  forth  in  another  part  of  this  work.2 

//  the  contract  has  been  executed  by  the  delivery  and  acceptance 
of  a  conveyance  containing  a  covenant  of  warranty.,  or  for  quiet 
enjoyment.,  or  against  incumbrances,  and  there  has  been  such  a 
breach  of  those  covenants  as  would  give  the  grantee  a  present  right 
to  recover  substantial  damages  against  the  grantor,  the  former  will, 
in  an  action  against  him  for  the  purchase  money,  be  allowed  to  set 
up  such-  breach  as  a  defense  by  way  of  recoupment  of  the  plain- 
tiff's demand.  If  there  has  been  no  such  breach  the  grantee  cannot 
detain  or  recover  back  the  purchase  money.3 

"These  propositions  are  to  be  found,  post,  §  237. 

"Rawle  Covt.  (5th  ed.)  §  326;  2  Warvelle  Vend.  919;  2  Sugd.  Vend.  (8th 
Am.  ed.)  193  (549)  note  g.  (As  to  what  consitutes  a  breach  of  the  several 
covenants  for  title,  see  ante,  the  chapters  treating  of  them  respectively.) 
Greenleaf  v.  Queen,  1  Pet.  (U.  S.)  138;  Noonan  v.  Lee,  2  Bl.  (U.  S.)  499; 
Kimball  v.  West,  15  Wall.  (U.  S.)  377.  Prevost  v.  Gratz,  3  Wash.  (C.  C.) 
439.  Brisco  v.  Mining  Co.,  82  Fed.  952.  In-  the  case  of  Patton  v.  Taylor,  7 
How.  (U.  S.)  132,  it  was  held  that  the  covenantee  could  not  detain  the  pur- 
chase money,  in  the  absence  of  a  breach  of  the  covenant  of  warranty,  though 
the  covenantor  was  insolvent.  To  the  text;  Peden  v.  'Moore,  1  Stew.  &  P. 
(Ala.)  81;  21  Am.  Dec.  649,  oft.  diet.;  Wilson  v.  Jordan,  3  Stew.  &  P.  (Ala.) 
92;  Dunn  v.  White,  1  Ala.  645;  Cullum  v.  Bank,  4  Ala.  21 ;  37  Am.  Dec.  725; 
Cole  v.  Justice,  8  Ala.  793;  Tankersly  v.  Graham,  8  Ala.  247;  Knight  v. 
Turner,  11  Ala.  639;  McLemore  v.  Mabson,  20  Ala.  139;  Thompson  v.  Christi an, 
28  Ala.  399;  Helvenstein  v.  Higgason,  35  Ala.  262;  Garner  v.  Leaverett,  32 
Ala.  410;  Thompson  v.  Sheppard,  85  Ala.  611;  5  So.  Rep.  334;  Frank  v. 
Riggs,  93  Ala.  252;  9  So.  Rep.  359;  Heflin  v.  Phillip,  (Ala.)  11  So.  Rep.  72&. 
Wheat  v.  Dotson,  12  Ark.  699;  McDaniel  v.  Grace,  15  Ark.  135;  Robards  v. 
Cooper,  16  Ark.  288;  Key  v.  Henson,  17  Ark.  254;  Hoppes  v.  Cheek,  21  Ark. 
585 ;  Lewis-  v.  Davis,  2-1  Ark.  239 ;  Busby  v.  Treadwell,  24  Ark.  457 ;  Sorrells 
V.  McHenry,  38  Ark.  127.  But  in  a  suit  to  forclose  a  vendor's  lien  the  cove- 
nantee may  have  credit  for  all  sums  necessarily  paid  by  him  to  protect  the 
title.  Morris  v.  Ham,  47  Ark.  293.  Possession  of  a  part  of  the  premises  by 
a  mere  intruder  without  color  of  title,  through  a  mistake  as  to  boundaries, 
is  not  such  a  breach  of  the  covenant  for  quiet  enjoyment  as  will  entitle  the 
purchaser  to  detain  the  purchase  money.  Hoppes1  v.  Cheek,  21  Ark.  585. 
Where  the  vendor  agreed  to  convey  the  property  before  payment  of  the  pur- 
chase money,  and  the  purchaser  accepted  a  deed  which-  conveyed  none  of  the 
property  purchased,  and  afterwards  discover-ed  the  error,  it  was  held  that  he 
might  refuse  to  pay  the  purchase  money  until  the  vendor  should  execute  a 

61 


482  MAKKETABLE    TITT.E   TO    REAL    ESTATE. 

proper  conveyance  of  the  premises.  McConnell  v.  Little,  51  Ark.  33.1;  11 
S.  W.  Rep.  371.  To  the  text:  Salmon  v.  Hoffman,  2  Cal.  138;  56  Am.  Dec.  322; 
Fowler  v.  Smith,  2  Cal.  39.  In  Norton  v.  Jackson,  5  Cal.  262,  it  was  held 
that  eviction  by  process  of  law  was  necessary  to  enable  the  covenant ee  to 
set  up  breach  of  warranty  as  a  defense  in  an  action  for  the  purchase  money. 
To  the  text:  Hurd  v.  Smith,  5  Colo.  233.  (But  see  McCutchen  v.  Klaes,  143 
Pac.  143;  26  Colo.  App.  374,  where  held  that  the  contract  remains  executory, 
notwithstanding  the  execution  and  delivery  of  a  warranty  deed  by  the  vendor, 
and  that  upon  a  clear  failure  of  the  title  the  grantee  is  entitled  to  rescind 
and  recover  the  purchase  money  paid.)  Smoot  v.  Coffin,  4  Mackey  (D.  G.), 
407;  Bletz  v.  Willis,  19  D.  C.  449.  McGhee  v.  Jones,  10  Ga.  135;  Roberts  v. 
Woolbright,  1  Ga.  Dec.  98.  Brantley  Co.  v.  Johnson,  102  Ga.  850;  29  S.  E. 
Rep.  486.  But  in  Smith  v.  Hudson,  45  Ga.  208,  it  was  held  that  the  pur- 
chaser might  detain  the  purchase  money  if  he  could  show  that  his  remedy 
upon  the  warranty  would  not  protect  him.  It  would  seem,  also,  that  he 
might  detain  the  purchase  money  in  that  State  if  there  had  been  a  judgment 
against  him  in  ejectment,  though  there  had  been  no  actual  eviction,  since  such 
a  judgment,  without  eviction,  amounts  to  a  breach  of  warranty  in  Georgia. 
Clark  v.  Whitehead,  47  Ga.  510,  overruling  Leary  v.  Durham,  4  Ga.  593. 
Where  a  purchaser  caused  the  conveyance  with  warranty  to  be  made  to  a 
sub-purchaser,  himself  remaining  liable  for  the  purchase  money,  it  was  held 
that  he  could  not,  in  an  action  against  him  for  the  purchase  money,  avail 
himself  of  the  breach  of  warranty  in  the  conveyance  to  the  sub-purchaser, 
even  though  he  held  the  sub-purchaser's  notes  as  collateral.  Gordon  v. 
Phillips,  54  Ga.  240.  To  the  text:  Deal  v.  Dodge,  26  111.  458;  Vining  v.  Lee- 
man,  45  111.  246;  Whitlock  v.  Denlinger,  59  111.  96;  Lafarge  v.  Matthews,  68 
111.  328;  People  v.  Sisson,  93  111.  335.  The  same  rule  applies  in  case  of  the 
eviction  of  a  lessee  by  paramount  title.  Pepper  v.  Rowley,  73  111.  262.  In 
liuckles  v.  Northern  Bank  of  Ky.,  63  111.  268,  271,  the  rule  is  qualified  by  the 
statement  that  such  a  defense  cannot  be  made  so  long  as  the  possession  of 
the  vendee  remains  undisturbed  and  the  paramount  title  unasserted.  The 
qualification  is  obscure,  in  that  it  does  not  appear  what  is  meant  by  the 
assertion  of  the  paramount  title,  whether  a  suit  prosecuted  or  threatened, 
or  a  suit  which  has  resulted  in  a  judgment  of  eviction.  The  rule  that  failure 
of  title  cannot  be  set  up  as  a  defense  where  there  has  been  no  breach  of  the 
vendor's  covenants  does  not  apply  whrre  the  purchase-money  notes  and 
mortgage  expressly  provide  that  they  shall  not  be  paid  until  the  title  has 
l*?en  perfected.  Smith  v.  Newton,  38  111.  230;  Weaver  v.  Wilson,  48  111.  128. 
Whisler  v.  Hicks,  6  Bl.  (Ind.)  100;  33  Am.  Dec.  454;  Smith  v.  Ackermnn, 
Id.  541.  In  both  of  these  cases  the  objection  made  to  the  payment  of  the 
purchase  money  was  an  outstanding  contingent  right  of  dower  in  the  wife 
of  the  vendor.  To  the  text:  Buell  v.  Tate,  7  Bl.  (Ind.)  55;  Pomcroy  v. 
Burnett,  8  Bl.  (Ind.)  142;  Oldfield'v.  Stevenson,  1  Ind.  153:  Streeter  v.  Henly, 
1  Ind.  401;  Clark  v.  Snelling,  1  Ind.  382;  Hooker  v.  FolHon,  4  Ind.  90; 
Wilkenton  v.  Cliadd,  14  Ind.  448:  I^auphery  v.  McLean,  14  Ind.  106;  Eatep  v. 
Estop.  23  Ind.  J14;  Starkey  v.  Xeese,  30  Ind.  222;  Stephens  v.  Evans,  30  Ind. 
30;  Hanna  v.  Shields  34  Ind.  84;  James  v.  Hayes,  34  Ind.  272,  .li-t  mirni-li- 
ing  Murphy  v.  Jones,  7  Ind.  520;  Brewer  v.  Parker,  34  Ind.  172;  Cartwright 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.   483 

v.  Briggs,  41  Ind.  184;  Strain  v.  Huff,  45  Ind.  222;  Cornwell  v.  Clifford,  45 
Ind.  393;  Mahoney  v.  Bobbins,  49  Ind.  146;  Jones  v.  Noe,  74  Int.  368; 
Gibson  v.  Richart,  83  Ind.  313;  Bethell  v.  Bethell,  92  Ind.  318;  Marsh  v. 
Thompson,  102  Ind.  272;  1  N.  E.  Rep.  630;  Parker  v.  Cul'bertson,  (Ind.)  27 
N".  E.  Rep.  619.  Grubbs  v.  Barber,  102  Ind.  131;  1  N.  E.  Rep.  636;  Pearson 
v.  Wood,  27  Ind.  App.  419;  61  N.  E.  Rep.  593.  Mauzy  v.  Flint,  42  Ind.  App. 
386;  83  N.  E.  757;  Rook  v.  Wright,  186  Ind.  654;  117  N.  E.  864.  In  Small 
v.  Reeves,  14  Ind.  163,  a  leading  case  in  that  State,  the  rule  was  thus  stated: 
"Where  a  deed  (with  covenants)  is  made  and  accepted  and  possession  taken 
under  it,  want  of  title  will  not  enable  the  purchaser  to  resist  the  payment 
of  the  purchase  money  or  recover  more  than  nominal  damages  on  his  cove- 
nants while  he  retains  the  deed  and  possession,  and  has  been  subjected  to  no 
inconvenience  or  expense  on  account  of  the  defect  of  title."  In  Fehrle  v. 
Turner,  77  Ind.  530,  a  purchaser  was  permitted  to  show  that  a  suit  to  recover 
part  of  the  land  was  being  prosecuted  against  him,  and  to  enjoin  proceedings 
to  collect  the  purchase  money,  until  the  adverse  claimant's  suit  should  be 
determined.  Overruling  Strong  v.  Downing,  34  Ind.  300.  In  Peterson  v. 
McCullough,  50  Ind.  35,  the  purchaser  claimed  an  abatement  of  the  purchase 
money  by  reason  of  an  incumbrance  resulting  from  the  right  of  a  canal 
company  to  overflow  part  of  the  land.  Relief  was  denied  on  the  ground 
that  the  evidence  did  not  show  an  easement  in  the  company  by  prescription. 
To  the  text:  Allen  v.  Pegram,  16  Iowa,  163;  Nosier  v.  Hunt,  18  Iowa,  212; 
Gifford  v.  Ferguson,  47  Iowa,  451;  Burrows  v.  Stryker,  47  Iowa,  477.  Of 
course,  it  is  no  defense  to  an  action  for  the  purchase  money  that  incumh 
brances  on  the  land  were  not  removed,  by  the  grantor,  until  a  few  days 
before  the  commencement  of  such  suit.  Winch  v.  Bolton,  (Iowa)  63  N.  W. 
Rep.  330.  In  Blasser  v.  Moats,  (Iowa)  46  N".  W.  Rep.  1076,  a  purchaser  who 
had  taken  a  conveyance  with  general  warranty  and  a  verbal  agreement  that 
the  vendor  would  procure  .his  wife  to  sign  the  deed,  was  permitted  to  resist 
the  payment  of  the  purchase  money  on  the  ground  that  the  wife  had  not 
signed  the  deed.  To  the  text:  Scantlin  v.  Anderson,  12  Kans.  85;  Chambers 
v.  Cox,-  23  Kans,  393;  Sunderland  v.  Bell,  39  Kans.  21,  663.  Ingraham  v. 
Ward,  56  Kans.  550;  44  Pac.  Rep.  14.  Lewis  v.  Xorton,  5  T.  B.  Mon.  (Ky.) 
1;  Rawlins  v.  Timberlake,  6  T.  B.  Mon.  (Ky.)  225;  Miller  v.  Long,  2  A.  K. 
Marsh.  (Ky.)  334;  Gale  v.  Conn.,  3  J.  J.  Marsh.  (Ky.)  538;  Simpson  v. 
Hawkins,  1  Dana  (Ky.),  303;  Taylor  v.  Lyon,  2  Dana  (Ky.),  276;  Casey  v. 
Lucas,  2  Bush  (Ky.),  55;  Trumbo  v.  Lockridge,  4  Bush  (Ky.),  416;  Butte 
v.  Rifife,  78  Ky.  353;  Bellfont  Iron  Wks.  v.  McGuire,  (Ky.)  11  S.  W.  Rep. 
203.  Com.  School  Dist,  v.  Conrad,  19  Ky.  Law  R.  199;  39  S.  W.  Rep.  497; 
Vivian  v.  Stevens,  (Ky.)  56  S.  W.  Rep.  520;  Atkinson  v.  Hager,  (Ky.)  121 
S.  W.  955.  In  Pryse  v.  McGuire,  81  Ky.  608,  it  was  held  that  if  the  pur- 
chaser had  never  been  put  in  possession,  he  might  defend  an  action  for  the 
purchase  money  on  the  ground  of  failure  of  the  title,  though  there  had  been 
no  eviction.  It  will  be  remembered,  however,  that  inability  of  the  grantee 
to  get  possession  is  a  constructive  eviction  from  the  premises.  Ante,  §  146. 
If  the  purchaser  take  a  deed  with  general  warranty  from  the  husband,  he 
will  be  deemed  to  have  relied  on  the  warranty,  and  cannot  enjoin  the 
collection  of  the  purchase  money  unless  he  be  evicted  by  the  doweress. 


484  MARKETABLE    TITLE    TO    REAL     ESTATE. 

Booker  v.  Meriweather,  4  Litt.  (Ky.)  212.  A  restriction  in  a  prior  deed  by 
which  a  subsequent  grantee  is  preventable  from  selling  liquor  on  the  premises, 
will  not  entitle  such  grantee  to  detain  the  purchase  money,  the  covenantor 
being  alive  ami  solvent.  Smith  v.  Jones,  (Ky.)  31  S.  W.  JJep.  47.3.  In 
Louisiana,  wing  to  the  prevalence  of  the  civil  law,  which  disregards  the 
rule  caveat  einptor,  the  distinction  between  executed  and  e\.-i  utory  contracts 
with  respect  to  the  detention  of  the  purchase  money  on  failure*  of  the  title, 
is  not  observed.  A  perfect  outstanding  title  in  a  stranger  is  held  equivalent 
to  eviction  in*  that  State,  and  entitles  the  grantee  to  rescind  the  oontnu-t. 
McDonald  v.  Vaughan,  14  La,  Ann.  716.  One  who  buys  land  at  a  sale  under 
execution  against  himself,  and  sells  the  land  again,  cannot  refuse  to  pay 
the  original  price  on  the  ground  that  the  property  is  incumbered  —  no  claim 
on  that  account  having  been  made  against  him.  Oakey  v.  Drunimond,  7  La. 
Ann.  205.  To  the  text:  \\~ontworth  v.  Goodwin.  ~2\  Me.  150,  semble;  Jenness  v. 
Parker,  24  Me.  280,  semble.  Timms  v.  Shannon,  19  Md.  296,  316;  81  Am. 
Dec.  632.  In  MiddlekaulT  v.  Barrick,  4  Gill  (Md.),  290,  it  was  broadly  *t:ited 
that  if  there  was  no  fraud  the  purchaser  had  no  remedy  except  upon  his 
covenants,  although  he  had  been  evicted  by  an  adverse  claimant.  It  does 
not  appear,  however,  that  this  language  was  intended  to  restrict  the  cove- 
nant ee's  right  to  avail  himself  of  a  breach  of  covenant  by  way  of  recoupment. 
To  the  text:  Lothrop  v.  Snell,  11  Cush.  (Mass.)  453;  Bartlett  v.  TarbeU, 
12  Allen  (Mass.),  125;  Knapp  v.  Lee,  3  Pick.  (Mass.)  459;  Rfce  V.  Goddard, 
14  Pick.  (Mass.)  293.  Haldane  v.  Sweet,  55  Mich.  196;  20  N.  W.  Ren. 
902;  Pfirrman  v.  Wattles,  (Mich.)  49  X.  W.  Rep.  40;  Leal  v.  Terl.ush. 
52  Mich.  100;  17  N.  W.  Rep.  713,  semble.  This  was  an  action  to  recover  hark 
purchase  money  paid  by  a  covenantee.  The  court  does  not  advert  to  the 
rule  remitting  the  purchaser  to  his  action  on  the  covenants,  but  rests  its 
decision  refusing  the  purchaser  relief,  on  the  ground  that  the  entire  con- 
sideration had  not  failed.  To  the  text:  Anderson  v.  Lincoln,  5  How.  (Miss.) 
279;  Coleman  v.  Rowe,  5  How.  (Miss.)  460;  37  Am.  Dec.  164.  The  contra. -i 
was  executory  in  this1  case,  but  the  vendor  had  executed  a  lx>ml  to  make  title. 
Vick  v.  Percy,  7  Sm.  &  M.  (Miss.)  256;  45  Am.  Dec.  303;  Walker  v.  Cillp.it. 
7  Sm.  &  M.  (Miss.)  456;  Hoy  v.  Taliaferro,  8  Sin.  &  M.  (Miss.)  7J7 . 
McDonald  v.  Green,  9  Sm.  &  M.  (Miss.)  138,  semble;  Duncan  v.  Lane,  8  Sm. 
&  M.  (Miss.)  744;  Gilpin  v.  Smith,  11  Sm.  &  M.  (Miss.)  129;  Heath  v.  N.-u- 
man,  11  Sm.  &  M.  (Miss.)  201;  Dennis  v.  Heath,  11  Sm.  &  M.  (M 
49  Am,  Dec,  61;  Johnson  v.  Jones,  13  Sm.  &  M.  (Miss.)  580;  Wailes  v. 
Cooper,  24  Miss.  232;  Harris  v.  Rowan,  24  Miss.  504;  \Vinslead  v.  Davis,  40 
Mi—.  7v">;  Wan-  v.  Hmighton,  41  Miss.  382;  93  Am.  Dec.  2.">S,  where,  however. 
the  warranty  was  of  title  to  a  slave;  Guice  v.  Sellers,  43  Miss.  52;  5  Am. 
Rep.  476;  Miller  v.  Lamar,  43  Miss.  382.  Cooley  v.  Rankin,  11  M...  f.  !7: 
I'onnor  v.  Kihly,  25  M<>.  7'>;  Wellman  v.  Dismukes,  42  Mo.  K»l:  Kddington  v. 
Nix,  49  Mo.  134;  Wheeler  v.  StHi.dley,  40  Mo.  /in«»:  Mit.-h.-ll  v.  \|. -Mullen,  50 
Mo.  252;  Hart  v.  Hailma.l  Co.,  65  Mo.  509;  Key  v.  Jennings,  66  M...  :Oi: 
Hunt  v.  Marsh,  80  Mo.  398;  Dudley  v.  Waldn.p.  (  M...  A  pp.)  183  S.  W.  Hi!ir,. 
A  purrhaser  \\h<»  accepts  a  conveyance  from  a  stranger  thereliy  \\aivcs  hi-t 
right  to  recover  from  the  vendor  numex  pai.l  in  rrmo\  ing  incumbranecs  from 
the  land.  Herryford  v.  Turner,  67  Mo.  296.  To  the  text:  Mills  v.  Saunderb, 


DETENTION  OF  PURCHASE  AIO.XEY BREACH  OF  COVENANT.       485 

4  Neb.  190.  Perkins  v.  Bamford,  3  X.  H.  522;  Getchell  v.  Chase,  37  X.  H. 
106;  Drew  v.  Towle,  7  Fost.  (X.  H.)  412;  54  Am.  Dec.  309,  where  the  rule 
stated  in  the  text  was  held  to  apply  only  where  there  has  been  a  total  failure 
of  the  consideration.  To  the  text:  Beach  v.  Waddell,  4  Halst.  Ch.  (X.  J.j 
299.  Kuhnen  v.  Parker,  56  X.  J.  Eq.  286;  38  Atl.  Rep.  641;  Gihon  v.  Morris, 
90  N".  J.  Eq.  230;  106  A.  807.  In  Cooper  v.  Bloodgood,  32  X.  J.  Eq.  209, 
it  was  held  that  the  necessity  of  obtaining  a  lease  of  riparian  rights  from 
the  State  could  not  be  held  an  eviction  entitling  the  covenantee  to  detain 
the  purchase  money  where  he  might  have  obtained  the  land  itself  by  appro- 
priation. To  the  text:  Bumpuss  v.  Platner,  1  Johns.  Ch.  (1ST.  Y.)  213; 
Abbott  v.  Allen,  2  Johns.  Ch.  (X.  Y.)  510;  7  Am.  Dec.  554;  Woodruff  v. 
Bunce,  9  Paige  Ch.  (X.  Y.)  443;  38  Am.  Dec.  559;  Miller  v.  Avery,  2  Barb. 
Ch.  (X.  Y.)  594;  Woodworth  v.  Jones,  2  Johns.  Cas.  (X.  Y.)  417;  Lattin 
v.  Vail,  17  Wend.  (X.  Y.)  183;  Whitney  v.  Lewis,  21  Wend.  (X.  Y.)  131; 
Tallmadge  v.  Wallis,  25  Wend.  (X.  Y.)  118;  Edwards  v.  Bodine,  26  Wend. 
(X.  Y.)  109;  Batterman  v.  Pierce,  3  Hill  (X.  Y.),  171;  Lamerson  v.  Marvin, 
8  Barb.  (X.  Y.)  14;  Farnham  v.  Hotchkiss,  2  Keyes  (X.  Y.),  9;  Ryerson  v. 
Willis,  81  X.  Y.  277;  Gifford  v.  Society,  104  X.  Y.  139;  10  X.  E.  Rep.  39; 
Dunning  v.  Leavitt,  85  X.  Y.  30;  39  Am.  Rep.  617;  Clanton  v.  Surges,  2 
Dev.  Eq.  (X.  C.)  13;  Wilkins  v.  Hogue,  2  Jones  Eq.  (X.  C.)  479;  Crowell 
v.  Jones,  167  X.  C.  386;  83  S.  E.  551.  In  Mills  v.  Abraham,  6  Ired.  (X.  C.) 
456,  it  was  held  that  a  purchaser  with  full  knowledge  of  the  defective  title, 
and  taking  covenants  for  his  protection,  could  not  resist  the  payment  of  the 
purchase  money  if  the  covenants  were  broken.  In  Ohio  the  purchaser  is  by 
statute  permitted  to  retain  the  possession  and  defend  a  suit  for  the  pur- 
chase money  by  bringing  in  the  person  claiming  an  adverse  estate  or  interest, 
so  that  the  rights  of  all  parties  may  be  adjusted  in  the  same  action.  Rev. 
Stat.  Ohio,  1884,  §  5780.  Before  the  enactment  of  that  statute  the  rule  was 
as  stated  in  the  text.  Stone  v.  Buckner,  12  Ohio,  73;  Edwards  v.  Xorris,  1 
Ohio,  524;  Hill  v.  Butler,  6  Ohio  216.  Under  the  same  statute  the  pur- 
chaser might  have  deducted  from  the  purchase  money  by  way  of  counter- 
claim the  amount  of  an  incumbrance  on  the  premises  discharged  by  him. 
Craig  v.  Heis,  30  Ohio  St.  550.  For  the  construction  of  this  statute  see 
Templeton  v.  Kramer,  24  Ohio  St.  554.  In  Purcell  v.  Heerny,  28  Ohio  St. 
39,  it  was  held  that,  independent  of  such  statutory  provision,  the  purchaser 
must  show  an  eviction  before  he  can  claim,  relief  against  payment  of  the 
purchase  money.  To  the  text:  Fellow's  v.  Evans,  33  Oreg.  30;  53  Pac.  Rep. 
491;  Failing  v.  Osborne,  3  Oreg.  498.  In  this  case  a  stipulation  of  the  vendors 
that  "  if  it  should  be  adjudged  that  they  had  no  legal  right  to  sell,  and  if 
the  purchaser  by  reason  thereof  be  legally  compelled  to  give  up  the  premises," 
they  should  refund  the  purchase  money,  was  given  the  effect  of  a  covenant 
of  warranty,  and  the  purchaser  held  not  entitled  to  detain  the  purchase 
money  unless  there  had  been  an  actual  or  constructive  ouster.  The  Penn- 
sylvania decisions  on  the  point  stated  in  the  text  will  be  found  post,  §  271. 
In  an  action  on  a  purchase-money  mortgage  the  defendant  may  set  off  dam- 
ages arising  from  a  breach  of  warranty  of  the  title,  but  he  will  not  be 
entitled  to  interest  on  such  damages  if  he  remain  in  possession,  even  though 
a  judgment  in  ejectment  had  been  recovered  against  him.  Wacker  v.  Straub, 


486  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

"Generally  speaking,"  says  Sugden,  "a  purchaser,  after  a  con- 
veyance, has  no  remedy  except  upon  the  covenants  ho  has  obtained, 
although  evicted  for  want  of  title;  and  however  fatal  the  defect  of 
title  may  be,  if  there  is  no  fraudulent  concealment  on  the  part  of 
the  seller,  the  purchaser's  only  remedy  is  under  the  covenants."4 
Practically  the  same  rule  exists  in  many  of  the  American  States, 
with  this  qualification,  that  in  any  case  in  which  there  has  been 
a  breach  of  the  covenants  which  the  purchaser  has  received,  for 
which  he  would  be  entitled  to  recover  substantial  damages,  he  may 
in  an  action  against  him  for  the  purchase  money  recoup  the  amount 

88  Pa.  St.  32.  Price  v.  Hubbard,  8  S.  Dak.  92;  65  X.  W.  Rep.  436.  To  the 
text:  Elliott  v.  Thompson,  4  Humph.  (Tenn.)  90;  40  Am.  Deo.  630;  White 
v.  Ewing.  69  Fed.  451:  Young  v.  Butler,  1  Head  (Tenn.),  640,  the  court 
saying:  "  From  the  facts  in  this  record  we  have  no  doubt  that  it  was  the 
purpose  of  the  purchaser  from  the  beginning  to  obtain  the  deed  and  the 
possession  of  the  property  without  paying  for  it  until  such  time  as  it  suited 
his  convenience  to  do  so,''  a  remark  applicable  to  a  large  percentage  of 
injunctions  against  the  collection  of  the  purchase  money.  The  fact  that  the 
vendor's  title  is  merely  equitable  will  not  entitle  the  purchaser  to  detain 
the  purchase  money.  The  subsequently  acquired  legal  title  will  enure  to  the 
benefit  of  the  purchaser  under  the  vendor's  covenant  of  warranty.  MeWhirter 
v.  Swaffer.  6  Baxt.  (Tenn.)  3-12.  In  MeXew  v.  Walker,  3  Humph.  (Tenn.) 
186,  the  vendor  having  only  a  life  estate  in  the  premises  conveyed"  the  same 
in  fee  with  general  warranty.  The  court  refused  to  enjoin  the  collection 
of  the  purchase  money,  there  being  no  fraud  and- no  eviction  alleged.  Wcster- 
velt  v.  Menly,  (Tex.  Civ.  App.)  216  S.  W.  680.  In  Texas  Ry.  Co.  v.  Gentry, 
69  Tex.  625;  8  S.  W.  Rep.  98,  it  was  held  that  a  purchaser  of  a  railroad 
property  with  warranty  could  not  resist  the  payment  of  the  purchase  money 
on  the  ground  that  certain  rights  of  way  enjoyed  by  the  company  had  not 
been  acquired,  if  proceedings  for  compensation  by  the  true  owtier  were 
barred  by  the  Statute  of  Limitations.  For  the  Texas  doctrine  relating  to 
detention  of  the  purchase  money,  see  post,  8  189.  To  the  text:  Dix  v. 
School  Dist.,  22  Vt.  309,  semble.  As  to  the  rule  governing  the  right  of  the 
purchaser  to  detain  the  purchase  money,  as  enforced  in  Virginia,  where  the 
title  is  found  to  be  bad,  after  the  acceptance  of  a  conveyance,  see  post,  §  337. 
To  the  text:  Hoyt  v.  Rothe,  95  Wash.  369;  163  Pac.  925;  Dignan  v.  West. 
71  W.  Va.  296;  76  S.  E.  661;  Horton  v.  Arnold,  18  Wis  212;  Ejiton  v. 
Tallmadge,  22  Wis.  626;  Smith  v.  Hughes,  60  Wia.  620;  7  N.  W.  Rep.  653: 
Bardeen  v.  Markstrum.  64  Wis.  613;  26  N.  W.  Rep.  665.  CampMl  v. 
Medbury,  5  Bins.  (C.  C.)  33.  In  Hall  v.  Gale,  14  \VU.  54,  and  Walker  v. 
Wilson,  13  Wis.  522,  the  nnn-exintence  of  a  right  to  raise  the  water  in  a 
mill  dam  to  a  specified  height,  the  purchaser  having  been  enjoined  by  the 
adjacent  proprietors,  was  hold  a  breach  of  the  covenant  of  warranty  entitling 
him  to  detain  tho  purchase  money. 
4Sugd.  Vend.  (8th  Am.  ed.)  3*3  (251);  2  id.  193  (549). 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.       487 

of  those  damages  from  the  plaintiff's  demand.5  But  so  long  as 
there  has  been  no  such  breach  of  the  covenant  of  warranty,  or  for 
quiet  enjoyment,  or  against  incumbrances,  as  would  entitle  the 
covenantee  to  recover  substantial  damages  against  the  covenantor, 
the  former  cannot,  either  at  law  or  in  equity,  resist  the  payment 
of  the  purchase  money.  In  some  of  the  States,  however,  as  will 
hereafter  be  seen,  the  rigor  of  this  rule  is  relaxed  where  suit  is 
threatened  or  prosecuted  by  the  adverse  claimant,  or  where  from 
non-residence  or  insolvency  of  the  covenantor,  judgment  against 
him  for  breach  of  his  covenant  either  cannot  be  obtained,  or,  if 
obtained,  will  prove  an  unavailing  remedy.6 

An  illustration  of  the  rule  stated  in  the  foregoing  proposition  is 
afforded  by  the  early  and  leading  case  of  Abbott  v.  Allen.7  There 
the  purchaser  entered  under  a  conveyance  with  covenants  of  seisin 
and  general  warranty,  and  executed  a  mortgage  to  secure  the 
deferred  payments  of  the  purchase  money.  When  the  mortgage 
was  about  to  be  enforced,  the  purchaser  prayed  an  injunction 
against  the  sale  of  the  premises,  but  set  out  in  his  bill  of  facts 
which  went  no  farther  than  to  show  that  his  title  was  doubtful  or 
unmarketable.  The  injunction  was  dissolved  by  Chancellor  JAMES 
KENT,  who  said  that  "  it  would  lead  to  the  greatest  inconvenience 
and  perhaps  abuse,  if  a  purchaser  in  the  actual  enjoyment  of  land, 
when  no  person  asserts  or  takes  any  measures  to  assert  a  hostile 
claim,  can  be  permitted  on  suggestion  of  a  defect  or  failure  of  title, 
and  on  the  principle  of  quia  timet,  to  stop  the  payment  of  the 
purchase  money,  and  of  all  proceedings  at  law  to  recover  it." 

Of  course  if  the  deed  contain  an  express  provision  that  the 
purchase  money  may  be  detained  or  abated  if  adverse  claims  or 
incumbrances  should  be  asserted  against  the  property,  the  rule 
restricting  the  purchaser  to  his  covenants  in  case  the  title  fails  does 
not  apply.  The  purchaser  is  at  liberty  to  protect  himself  by  special 

5  Ante,  cases  cited  n.  3,  p.  481. 

•Post,  chs.  26  and  34.  In  White  v.  Ewing,  69  Fed.  Rep.  451,  it  was  held 
that  the  insolvency  of  the  grantor  could  not  be  availed  of  as  a  defence  to  an 
action  for  the  purchase-money,  if  the  grantor's  grantor,  who  had  conveyed 
with  general  warranty,  was  solvent. 

7  2  Johns.  Ch.    (N.  Y.)    519;   7  Am.  Dec.  554. 


488  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

covenants  or  agreements;8  and  these  it  is  apprehended  will  prevail 
over  the  usual  and  formal  covenants  for  title  contained  in  the 
deed,  if  inconsistent  with  them. 

An  important  exception  to  the  general  rule  that  a  purchaser 
who  has  received  a  deed'  with  covenants  of  general  warranty  can- 
not detain  the  purchase  money  unless  he  has  been  evicted,  exi-t- 
where  the  deed  conveys  an  unknown,  uncertain  and  undetermined 
interest  in  the  land,  and  the  grantee  has  never  been  let  into  posses- 
sion. Thus  where  the  grantor  conveyed  all  of  his  "  right,  title  and 
interest  in  and  to  a  certain  undivided  tract  of  land,"  with  general 
warranty,  and  it  appeared  that  he  had  no  interest  whatever  in  tin- 
land  conveyed,  that  fact  was  held  a  complete  defense  to  an  action 
for  the  purchase  money.9  It  has  been  held  that  the  right  to  set  up 
a  breach  of  warranty  as  a  defense  to  an  action  for  the  purchase 
money  is  not  affected  by  the  fact  that  the  land  was  conveyed  by 
the  defendant's  direction  to  a  third  party,  and  the  warranty  made 
to  him.10  If  the  purchaser  agrees  to  take  his  title  from  a  third 
person  who  has  nothing  to  do  with  the  bargain,  and  accepts 


•Platt  v.  Gilchrist,  3  Samlf.  (X.  Y.)  118,  where  the  court  said:  "  The  possi- 
bility that  the  title  might  fail  and  the  purchaser  be  evicted,  was  in  the  minds 
of  the  parties.  They  might  also  have  provided  that  in  case  of  a  claim  being 
made  by  title  paramount  before  actual  payment  of  the  consideration  money. 
the  right  of  the  vendor  to  call  for  its  payment  should  be  suspended.  But 
this  thc-y  have.  not  thought  proper  to  do,  and  this  court  can  with  no  moro 
propriety  add  such  a  clause  to  the  contract  and  suspend  the  collection  of  the 
purchase  money,  than  it  can  suspend  the  collection  of  rent  expressly 
nanted  to  be  paid,  upon  the  destruction  of  the  huildinps.  where  the  panic-* 
have  not  themselves  provided  against  it."  In  Walter  v.  Johnson,  2  Kiev. 
the  deed  contained  a  provision  that  the  purchase  money  should  be  abated  if 
the  grantee  had  to  pay  for  the  release  of  any  adverse  claim  against  the 
property.  The  court,  held  that  tlie  words  "ndvcr>e  claim  "  meant  a  valid  and 
paramount  title,  and  that  1he  grantee  was  not  entitled  to  credit  for  a  sum 
paid  to  a  claimant  without  color  of  title.  In  Chaplin  v.  Briscoe,  11  Sm.  A 
M.  (Mi-s.)  .172,  where  the  deed  contained  a  similar  stipulation,  it  was  held 
that  the  covenanter  niijrht  avail  himself  of  the  defense  of  failure  of  the  till. 
though  he  had  conveyed  away  his  interest  in  the  premises  to  a  stranger. 

•Ix-wi-i  v.   Wr-t.  -2:\   Mo.   Ajip.  -1  !!.">.  the  court  saying  that  "to  such   a 
would  seem  to  apply  the  principle  on  which  i»  based  the  rule  that    the 
nant-  «•!'  -i  i-in    (warranty  nlso)    are  lirokcn   a<  >«.on  as  made  when   the  land 
convoyed   is  in   the   :  :•  at  the  date  of  the  deed   under   a 

paramount  title,  and  substantial  damages  are  recoverable  by  the  grantee.' 

"Bottorf  v.  Smith,  7   Ind.  673. 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.   489 

that  person  a  conveyance  with  covenants  for  title,  he  must  look  to 
those  covenants  for  redress  if  the  title  fails,  and  cannot  on  that 
ground  defend  an  action  by  the  vendor  to  recover  the  purchase 
money.11  Whatever  judgment  is  rendered  on  the  defendant's  plea 
setting  up  a  breach  of  covenant  in  an  action  against  him  for  the 
purchase  money,  whether  against  him  or  in  his  favor,  will  be  res 
adjudicate  of  his  rights  with  respect  to  the  alleged  breach,  and 
will  estop  him  from  afterwards  maintaining  an  action  on  the 
covenant  to  recover  damages  for  the  breach.12 

The  purchase  money  cannot  be  detained  in  a  case  in  which  the 
covenantee  has  executed  a  release  of  warranty  to  his  grantor.13 

The  rule  that  a  grantee  with  covenants  of  warranty  cannot 
resist  the  payment  of  the  purchase  money  until  actual  or  threat- 
ened eviction,  does  not  apply  where  the  grantor  pointed  out,  at 
the  time  of  the  sale,  incorrect  boundaries,  enclosing  more  land 
than  was  actually  conveyed.14 

The  answer  of  the  grantee  setting  up  a  breach  of  the  grantor's 
covenants  for  title  in  an  action  to  recover  the  purchase  money, 
must  contain  an  offer  to  reconvey  the  premises  to  the  grantor.10 

§  181.  MERGER  OF  PRIOR  AGREEMENTS.  The  principle  upon 
which  these  decisions  largely  rest  is  that  the  purchaser  by  demand- 
ing covenants  for  title  and  receiving  them  has  provided  his  remedy 
in  case  the  titlt,  fails,  and  that  in  those  covenants  are  merged  all 
prior  agreements  of  the  parties  respecting  the  title,  whether  oral 
or  written,  that  are  inconsistent  with  them.16  There  are  excep- 

11  Leonard  v.  Austin,  2  How.  L.   (Miss.)   888. 

"Tallmadge  v.  Wallis,  25  Wend.  (N.  Y.)  116.  Tillotson  v.  Grapes,  4  N.  H. 
444,  449. 

"White  v.  Furtz\vangler,  81  Ga.  66;  6  S.  E.  Rep.  692. 

14 King  v.  Bressie  (Tex.  Civ.  App.),  32  S.  W.  Rep.  729.  This  decision 
might  well  be  rested  upon  the  ground  of  fraud  or  mistake  of  the  grantor. 

13Herron  v.  Harbour,  57  Okl.  71;  155  Pac.  506. 

16Rawle  Covts.  (5th  ed.)  §  320.  Miller  v.  A  very,  2  Barb.  Ch.  (N.  Y.)  582, 
where  it  was  said  that  the  doctrine  of  merger  applied  as  well  in  equity  as 
at  law.  Hunt  v.  Amidon,  4  Hill  (N.  Y.),  345;  40  Am.  Dec.  283.  Bryan  v. 
Swain,  56  Cal.  616.  Little  v.  Thropp,  245  Pa.  539;  91  Atl.  924.  A  verbal 
agreement  between  the  parties  at  the  time  of  the  execution  of  a  deed  with 
warranty  and  a  purchase-money  note  and  mortgage  payable  in  ninety  days, 
that  if  within  the  ninety  days  the  title  be  found  bad  it  may  be  rejected,  has 

62 


490  MARKETABLE    TITLE    TO    REAL    ESTATE. 

tions  to  this  doctrine  of  merger,  however;  namely,  that  promises 
made  by  a  vendor,  after  the  execution  of  a  conveyance  but  before 
it  has  been  delivered  and  accepted,  that  he  will  discharge  incum- 
brances  on  the  premises  are  not  merged  in  the  conveyance  after- 
wards accepted.  Xor  are  such  promises  within  the  Statute  of 
Frauds  or  obnoxious  to  the  rule  that  evidence  of  a  contempora- 
neous verbal  agreement  will  not  be  received  to  alter  the  terms  of 
a  written  contract.17  Collateral  stipulations  of  which  the  convey- 
ance is  not  necessarily  a  performance,  are  not  conclusively  pre- 
sumed to  have  been  merged  in  the  conveyance.  Thus,  an  agree- 
ment by  the  purchaser  to  pay  off  an  existing  mortgage  on  the 

been  held  to  be  merged"  in  the  deed  and  not  available  as  a  defense  to  the 
foreclosure  of  the  mortgage  if  the  title  be  found  bad.  Jewell  v.  Bannon,  12 
Pa.  Co.  Ct.  Rep.  399.  In  Beard  v.  Dalaney,  35  Iowa,  16,  the  vendor  conveyed 
the  premises  with  general  warranty,  and  also  executed  a  title  bond  con- 
ditioned to  perfect  the  title  within  a  reasonable  time.  This  was  not  done  and 
a  judgment  was  recovered  on  the  bond.  The  point  that  the  title  bond  wan 
merged  in  the  conveyance  was  not  raised.  The  court  held  that  the  pur- 
chaser could  not  recover  on  the  warranty  without  showing  an  eviction,  but 
that  the  same  rule  did  not  apply  in  the  action  on  the  title  bond.  A  bond 
for  title  is  merged  in  a  conveyance  subsequently  given.  Shontz  v.  Brown, 
27  Pa.  St.  123.  A  special  covenant  in  a  title  bond  to  indemnify  the  vendee 
against  all  costs,  charges  and  damages,  if  the  land  recovered  from  him 
under  a  paramount  title,  is  not  merged  in  a  subsequent  conveyance  of  the 
land  with  warranty.  Cox  v.  Henry,  32  Pa.  St.  18. 

"In  Remington  v.  Palmer,  62  X.  Y.  31,  after  the  execution  of  the  deed,  but 
before  it  was  delivered,  a  question  arose  as  to  which  of  the  parties  should  pay 
an  assessment  on  the  premises.  The  vendor  having  agreed  to  pay  it,  the  pur- 
chaser accepted  a  conveyance.  Afterwards,  in  an  action  by  the  purchaser 
to  recover  the  amount  of  the  assessment  from  the  vendor,  the  latter  set  up 
the  defense  that  his  agreement  to  pay  the  assessment  was  merged  in  the 
conveyance  and  that  plaintiff  could  not  recover.  The  defense  was  adjudged 
insufficient,  the  court  saying:  "It  is  said  that  all  agreements  preceding  the 
delivery  of  the  deed  were  merged  in  the  same.  This  position  is  not  a  sound 
one,  for  while  all  prior  agreements  may  be  merged  in  the  deed  when  exe- 
cuted it  by  no  means  follows,  that,  before  the  contract  i«  fulfilled  by  a  de- 
livery and  acceptance  of  the  deed,  that  conditions  may  not  be  made  which 
are  obligatory  upon  the  parties.  The  deed  l>eing  ready  for  delivery,  and  the 
plaintiff  ready  to  pay  the  money,  they  had  a  perfect  right  to  exact,  as  ft 
condition  of  fulfilling  the  contract,  that  the  defendant  should  pay  the  MMM 
ment  when  it  became  due.  This  is  not  contradicting  a  written  agreement  by 
parol,  but  evidence  of  the  term*  upon  which  the  money  wan  paid  and  the 
conveyance  delivered.  As  the  agreement  was  made  after  the  dwl  was  exe- 
cii ted  and  before  delivery  there  could  IK>  no  merger  of  this  agreement  in  the 
•Iced."  Citing  Munlnrk  v.  Gilchrint,  62  N.  Y.  242. 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.   491 

premises  has  been  held  not  to  have  been  merged  in  a  subsequent 
conveyance  of  the  premises  with  covenants  of  warranty.18  Also, 
that  the  original  provisions  of  the  contract  respecting  the  title,  are 
not  merged  in  the  conveyance,  unless  the  same  be  accepted  in  com- 
plete execution  of  the  agreement.19  A  covenant  to  put  the  vendee 
in  possession  is  not  merged  in  a  subsequent  conveyance  with  war- 
ranty.20 And  a  contract  which  expressly  provides  that  its  restric- 
tions and  stipulations  shall  be  complied  with  and  carried  out  as  if 
embodied  in  the  deed,  will  not  be  held  to  have  been  merged 
therein.21 

It  has  been  held  that  an  'executory  contract  for  the  exchange  of 
lands  is  not  merged  in  the  deeds  of  conveyance  executed  in  pur- 
suance thereof,  and  that  if  one  of  the  parties  thereto  agreed  to 
remove  an  incumbrance  from  the  land  to  be  conveyed  by  him,  such 
promise  would  not  be  merged  in  the  conveyance  when  executed.22 
And  the  better  opinion  is  that  fraud  on  the  part  of  the  vendor  with 
respect  to  the  title,  is  not  merged  in  a  subsequent  conveyance  of 
the  premises  with  warranty,  the  grantee  accepting  the  conveyance 
in  ignorance  of  the  fraud.23 

"Reed  v.  Sycks,  27  Ohio  St.  285.  Disbrow  v.  Harris,  122  1ST.  Y.  365;  25 
N.  E.  356.  Here  the  stipulation  was  that  a  small  portion  of  the  purchase 
money  should  be  kept  back  until  certain  repairs  to  the  premises  were  made 
by  the  grantor.  Citing  Morris  v.  Whitcher,  20  N".  Y.  41 ;  Whitbeck  v.  Waine, 
16  N.  Y.  532;  B«nnett  v.  Abrams,  41  Barb.  (X.  Y.)  619;  Murdock  v.  Gil- 
christ,  5-2  N.  Y.  242.  Dillingham  v.  Estill,  3  Dana  (Ky.),  21. 

"Cavanaugh  v.  Casselman,  88  Cal.  543;  26  Pac.  Rep.  515,  where  the  con- 
veyance embraced  only  a  part  of  the  purchased  premises.  Read  v.  Loftua. 
82  Kan.  485;  108  Pac.  850;  Davis  v.  Lee,  52  Wash.  330;  100  Pac.  752;  132 
Am.  St.  Rep.  973.  The  burden  is  on  the  covenantor  to  show  that  a  particular 
incumbrance  was  excepted  from  the  operation  of  the  covenant.  X.  Y.  etc. 
Coal  Co.  v.  Graham,  226  Pa.  348;  75  Atl.  657.  In  Sessa  v.  Arthur,  183  Mass. 
230;  66  N.  E.  Rep.  804,  it  was  held  that  the  purchaser  did  not  waive  an 
express  provision  in  the  contract  of  sale  that  he  was  to  have  a  warranty 
deed  free  from  incumbrances,  by  accepting  a  deed  declaring  the  premises  to 
be  subject  to  the  incumbrance  of  a  certain  passage  way  between  the  premises 
and  an  adjoining  house,  and  retaining  the  deed  two  months  without  objection 
to  the  title. 

20 German  Am.  Real  Est.  Co.  v.  Starke,  84  Hun  (N.  Y.),  430;  32  X.  Y. 
Supp.  403.  Williams  v.  Frybarger,  9  Ind.  App.  558. 

"Xewbold  v.  Peabody  Heights  Co.,  70  Md.  499;    17  Atl.   Rep.   372. 

22 Bennett  v.  Abrams,  41  Barb.   (N.  Y.)  619,  625. 

23  Post,  §§  270,  276. 


492  MARKETABLE    TITLE    TO    REAL    ESTATE. 

§  182.  EFFECT  OF  PURCHASE  WITH  KNOWLEDGE  OF  DEFECT 
OR  INCTJMBRANCE.  If  a  man  purchase  land  knowing  that  the 
title  is  bad  or  the  land  is  incumbered,  that  fact,  as  has  been  seen, 
does  not  affect  his  right  to  recover  on  the  covenants  for  title  in  his 
deeds,  for  it  may  be  that  he  was  induced  to  purchase  because  of 
the  security  and  indemnity  from  loss  afforded  by  his  vendor's 
covenants.24  But  whether  in  such  a  case  upon  a  breach  of  those 
covenants  he  will  be  suffered  to  detain  the  purchase  money  is  a 
question  upon  which  there  has  been  a  conflict  of  decision.  The 
weight  of  authority  and  the  better  opinion  seems  to  be  that  ho 
must  pay  the  purchase  money  and  look  to  his  covenants  for  relief,85 
except  in  those  cases  in  which  the  vendor,  after  the  deed  had  been 
executed,  but  before  it  had  been  delivered  and  accepted  expn 
agreed  to  remove  the  incumbrances.  Such  a  promise,  it  will  be 
remembered,  has  been  held  not  to  be  merged  in  the  subsequent 
conveyance.26  There  are  cases  which  affirm  the  right  of  the  pur- 
chaser to  detain  the  purchase  money,  notwithstanding  his  accept- 
ance of  a  conveyance  with  notice  of  the  ineumbrance,27  and  it 

"  Ante,  §  124.     Wadhams  v.  Swan,  109  111.  46. 

"Wailes  v.  Cooper,  24  Miss.  208;  Gartman  v.  Jones,  24  Miss.  234;  Stone 
v.  Buckner,  12  Sin.  &  M.  (Miss.)  73,  obiter.  Cummins  v.  Boyle,  1  J.  J.  Marsh. 
(Ky.)  480.  Stansbury  v.  Taggart,  3  McLean  (U.  S.),  457.  In  Perkins  v. 
Williams,  5  Coldw.  (Tenn.)  512,  it  was  held  that  the  rule  stated  in  the  text 
would  apply  even  though  the  vendor  was  insolvent.  In  Greenleaf  v.  Cook, 
2  Wh.  (U.  S.)  17,  the  court  said:  '"Acquainted  with  the  extent  of  the  im-um- 
brance  and  its  probable  consequences,  the  defendant  consents  to  receive  the 
title  whirh  the  plaintiff  was  able  to  make,  and  in  receiving  it  execute  his 
note  for  the  purchase  money.  To  the  payment  of  a  note  given  under  such 
circumstances  the  existence  of  the  ineumbrance  can  certainly  furniwh  no  legal 
objection."  Per  MARSHALL,  Ch.  J.  In  Ryerson  v.  Willis,  8  Daly  (N.  Y.) 
402,  a  grantee  with  warranty  gave  a  mortgage  on  Ihe  premises  for  H  balanca 
of  the  purchase  money,  under  an  agreement  that  it  should  not  be  coll 
until  the  grantor  >ln>uM  procure  and  deliver  to  him  a  quit  claim  of  a  certain 
interest  in  the  premi-e--.  The  quit  claim  not  having  Ix'en  delivered  the 
tee  brought  a  suit  to  canc.-l  tin-  ni"rtgage.  but.  the  <x>urt  held  that  be  \\a-» 
not  entitled  to  that  relief,  and  that  his  remedy  was  upon  tho  covenants  in 
the  deed.  ThN  dcci-inn  was  rested  largely  upon  the  ground  that  the  grantee 
had  purchased  with  notice  of  the  defective  title. 

"Ante.  5   1S1.     Remington  v.  Palmer.  62  N.  Y.  31. 

"•Iii'l'M  1  X.  .7.  Kq.  461,  eiting  Tourville  v.  Na-h.  3  I'.  WIT-.  WO. 

Johi.  :.-.  2  .Mm*.  Cli.    (X.  Y. )    .r.  \fi.     Shannon  v.  MarselK  Saxt..    (N. 

120]  Van  W.i;';:,,;!cr  v.  M<  K\\en.  1  Or.   (2  N'.  J.  Eq.)  412.    These  author!- 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.   493 

cannot  be  denied  that  there  would  be  much  hardship  in  denying 
him  that  right  where  the  vendor  had  in  the  first  instance  agreed  to 
extinguish  the  incumbrance,  but  had  neglected  or  refused  to  do  it.28 

There  is  a  conflict  of  decision  upon  the  question  whether,  as 
between  vendor  and  purchaser,  the  latter  will  be  deemed  to  have 
notice  of  defects  and  incumbrances  which  appear  from  the  public 
records.  The  weight  of  authority  and  the  better  opinion  seeins  to 
be  that  the  law  of  notice  from  the  public  registers  has  no  applica- 
tion as  between  vendor  and  purchaser.29 

§  183.  RECOUPMENT.  At  common  law,  a  total  failure  of  con- 
sideration could  always  be  pleaded  in  bar  to  an  action  on  a  con- 
tract, but  if  the  failure  of  the  consideration  was  only  partial,  the 
defendant  was,  as  a  general  rule,  driven  to  his  cross-action  against 
the  plaintiff.  A  total  failure  of  the  consideration  occurred  wher- 
ever the  defendant  received  absolutely  no  benefit  under  the  con- 
tract; but  if  he  received  any  such  benefit,  no  matter  how  small, 
the  plea  of  failure  of  consideration  could  not  be  sustained,  and 
the  defendant  was  forced  to  his  separate  action.30  If  the  contract 
was  for  the  sale  or  lease  of  lands,  there  could  be  no  total  failure 
of  the  consideration  if  the  purchaser  was  put  in  possession31  and 
enjoyed  the  estate  without  liability  to  a  stranger  for  the  rents  and 
profits,32  in  case  the  title  was  not  such  as  he  might  demand,  e.  g., 
a  life  estate  instead  of  an  estate  in  fee.  This  seems  to  have  been 
the  rule,  even  though  the  purchaser  was  evicted  by  the  real  owner. 
But  now,  by  virtue  of  statutes  in  many  of  the  American  States,83 

ties,  however,  go  but  little  further  than  the  general  proposition  that  knowl- 
edge of  the  defect  or  incumbrance  at  the  time  of  the  purchase  does  not  affect 
the  purchaser's  right  to  recover  on  the  covenants. 

28  In  Stelzer  v.  La  Rose,  79  Ind.  435,  it  was  held  that  a  purchaser  under  the 
circumstances  stated  in  the  text  could  not  detain  the  purchase  money  so  long 
as  he  had  suffered  no  loss  or  injury  on  account  of  the  incumbrance. 

"Shannon  v.  Marselis,  Saxt.   (N.  J.)   413,  426.     Ante,  §  104. 

*"  Chitty  Cont.  (10th  Am.  ed.)  815.  An  exception  exists  in  the  case  of  a 
breach  of  warranty  of  chattels  where  the  defendant  returned  the  goods. 
Id.  491. 

31  Moggridge  v.  Jones,  3  Camp.  38. 

M  Jenness  v.  Parker,  24  Me.  295. 

33 Thus,  in  Virginia  (Code,  1887,  §  3299),  it  is  provided  that:  "In  any 
action  on  a  contract,  the  defendant  may  file  a  plea  alleging  any  such  failure 
in  the  consideration  of  the  contract,  or  fraud  in  its  procurement,  or  any  such 


494  MARKETABLE   TITLE   TO   REAL   ESTATE. 

the  defendant  in  any  action  on  a  contract  is  allowed  to  file  a 
special  plea,  setting  up  as  a  defense  any  matter  which  would 
entitle  him  to  damages  at  law  for  breach  of  the  contract,  or  to 
relief  in  equity  against  the  obligation  thereof.  In  some  of  the 
States,  however,  no  such  statutes  exist,  or,  at  least,  none  that 
permit  the  defendant  to  set  up  a  claim  for  unliquidated  damages 
as  a  defense  to  an  action  on  a  contract.  In  such  States,  the  defend- 
ant, in  an  action  for  the  contract  price  of  lands,  if  he  has  been 
evicted  from  the  premises  and  has  a  present  right  to  recover  dam- 
ages on  the  covenants  of  his  grantor,  is  allowed  to  set  up  those 
facts  in  recoupment  of  the  plaintiff's  demand,  oven  though  he  may 

breach  of  any  warranty  to  him  of  the  title,  or  the  soundness  of  personal 
property  for  the  price  or  value  whereof  he  entered  into  the  contract,  or  any 
other  matter  as  would  entitle  him  either  to  recover  damages  at  law  from  the 
plaintiff,  or  the  person  under  whom  the  plaintiff  claims,  or  to  relief  in  equity, 
in  whole  or  in  part,  against  the  obligation  of  the  contract;  or,  if  the  contract 
he  by  deed,  alleging  any  such  matter  arising  under  the  contract  existing 
before  its  execution,  or  any  such  mistake  therein,  or  in  the  execution  thereof. 
or  any  such  other  matter  as  would  entitlo  him  to  such  relief  in  equity."  The 
object  of  this  statute  was  to  abolish  the  common-law  rule  that  the  defendant 
could  not  in  effect  have  at  law  a  rescission  of  a  contract,  the  benefits  of 
which  he  had  partly  enjoyed,  and  to  admit  of  the  defense  of  partial  failure 
of  consideration  by  way  of  set-off.  A  similar  statutory  provision,  it  is  be- 
lieved,  exists  in  most  of  the  States.  In  Alabama,  the  early  rule  was  that 
unliquidated  damages  could  not  be  set  off  against  a  demand  for  the  pun-lmse 
money.  Dunn  v.  White,  1  Ala.  645.  The  removal  of  an  outstanding  incum- 
brance  by  a  purchaser  of  land  having  a  covenant  against  incumbrances  wn* 
held  to  be  within  the  rule.  Cole  v.  Justice.  8  Ala.  703.  A  subsequent  statute 
authorized  the  set  off  of  not  only  mutual  debts,  but  liquidated  or  unliquidated 
demands  not  sounding  in  damages  merely.  Rev.  Code  Aln.  §  2642.  It  was 
held  that  the  amount  paid  by  a  purchaser  to  extinguish  an  outstanding 
vendor's  lien  wag  within  this  statute,  and  should  be  allowed  as  a  set-off. 
Holley  v.  Younge,  27  Ala.  203.  So,  also,  a  breach  of  warranty  arising  from  a 
deficiency  in  the  quantity  of  land  sold.  Bell  v.  Thompson,  34  Ala.  633; 
Nelms  v.  Prewitt,  37  Ala,  380.  So.  also,  a  cross-demand  growing  out  of  a 
defect  in  the  vendor's  title  is  available  as  a  set-off  in  an  action  mi  the  note* 
for  the  purchase  money,  although  the  purchaser  is  in  possession.  Martin  v. 
Wharton,  38  Ala.  637.  In  Fads  v.  Murphy.  52  Ala.  525,  the  fact  that  the 
vendors  could  not  make  a  good  title  to  the  land  was  held  a  good  set-off  to  an 
action  for  the  purchase  money.  Under  a  statutory  provision  that  a  counter- 
claim must  be  one  "existing  in  favor  of  a  defendant  nnd  against  a  plaint  iff. 
In'tween  whom  several  judgment*  might  be  had  in  the  action.''  a  sub-pur- 
chaser, against  whom  no  personal  judgment  is  asked,  cannot  defend,  by  way 
of  counterclaim,  an  action  to  foreclose  a  purchase-money  mortgage  cm  the 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.   495 

have  had  possession  of  the  premises,  and  consequently  may  have 
received  some  benefit  from  the  contract.34 

"  Recoupment  differs  from  set-off  in  this  respect ;  that  any  claim 
or  demand  the  defendant  may  have  against  the  plaintiff  may  be 
used  as  a  set-off,  while  it  is  not  a  subject  for  recoupment  unless  it 
grows  out  of  the  very  same  transaction  which  furnishes  the  plain- 
tiff's cause  of  action.35  The  defense  of  set-off  did  not  exist  at  com- 
mon law,  but  a  right  to  reduce  or  defeat  the  plaintiff's  demand  on 
account  of  some  matter  connected  therewith  was  conceded  to  the 
defendant.36  Thus,  in  an  action  for  work  done,  the  defendant 
might  deduct  from  the  damages  the  value  of  material  supplied  by 
him,37  and,  in  an  .action  to  recover  money  for  dyeing  goocte,  the 
defendant  was  permitted  to  show  a  custom  which  allowed  him  to 
deduct  from  the  price  of  the  work  the  amount  of  damage  done  to 
the  goods  while  being  dyed.38  The  extension  of  this-  principle,  so 
as  to  allow  the  defendant  in  an  action  on  a  contract  to  set  up  as  a 
defense  unliquidated  damages  resulting  from  the  plaintiff's  non- 
performance  of  the  contract,  has  produced  the  modern  doctrine  of 
recoupment.39  That  defense  is-  permitted  for  the  purpose  of  avoid- 

ground  that  he  had  been,  evicted  by  paramount  title,  when  that  title  was 
acquired  through  a  sale  for  taxes  which  were  incumbrances  at  the  time  of  the 
plaintiff's  grant.  In  other  words,  the  counterclaim  could  be  availed  of  only 
by  the  original  purchaser.  Nat.  Fire  Ins.  Co.  v.  McKay,  21  N.  Y.  191. 

34  In  Doremus  v.  Bond,  8  Blackf.  (Ind.)  368,  it  was  said:  "In  just  the 
amount,  then,  that  the  vendors  have  suffered  the  purchaser  to  pay  by  com- 
pulsion, to  secure  the  benefit  of  their  covenants  of  title  andr  possession,  have 
those  covenants  failed  as  a  consideration ;  and  that  failure  being  perfected 
before  the  payment  of  all  the  purchase  money,  it  may  be  recouped  out  of  the 
original  consideration.  The  defendant  is  not  bound  to  plead  the  matter  by 
way  of  set-off,  springing,  as  it  does,  out  of  the  default  of  the  vendors  in  rela- 
tion to  the  original  contract,  and  not  from  any  new  or  subsequent  dealing  on 
his  part."  In  Texas,  it  is  provided  by  statute  that,  if  "  a  suit  be  founded 
on  a  certain  demand,  the  defendant  shall  not  be  permitted  to  set  off  unliqui- 
dated damages  found'ed  on  a  tort  or  breach  of  covenant  on  the  part  of  the 
plaintiff."  Rev.  St.  Tex.  649.  Howard  v.  Randolph,  73  Tex.  454.  It  may  be 
doubted  whether  this  statute  would-  exclude  the  defense  of  recoupment.  The 
statute  seems  to  be  directed  against  demands  disconnected  with  the  contract. 

34  Black  Law  Diet.  nom.  Recoupment. 

""Chitty  Cont.   (10th  Am.  ed.)   946,  948. 

3'  Xewton  v.  Foster,  12  M.  &  W.  772. 

38  Bamford  v.  Harris,  1  Stark.  343. 

20  In  \Yaterman  on  Set-Off  (2d  ed.)',  p.  575,  it  is  said:    "As  a  general  rule, 


496  MARKETABLE  TITLE   TO  REAL   ESTATE. 

ing  circuity  of  action;  and,  after  all,  the  true  test  of  its  availa- 
bility is  not  so  much  whether  there  has  or  has  not  been  a  mere 
partial  failure  of  the  consideration,  as  whether  the  defendant  has  a 
present  right  to  recover  substantial  damages  from  the  plaintiff  for 
breach  of  covenant ;  for,  if  he  have  such  right,  it  would  be  not  only 
unjust  but  contrary  to  public  policy  to  compel  him  to  pay  over 
money  which  he  could  immediately  recover  from  the  payee.40 

§  184.  RECOUPMENT  IN  FORECLOSURE  SUIT.  The  defense 
of  set-off,  recoupment  or  counterclaim  may  be  as  freely  made  in  an 
action  to  foreclose  a  purchase-money  mortgage  or  vendor's  lien,  as 
elsewhere.41  But  if  no  personal  decree  or  judgment  against  the 
defendant,  in  case  of  a  deficiency,  is  sought,  the  defense  of  re- 
coupment for  damages  occasioned  by  a  failure  of  the  title  will,  as 
a  general  rule,  be  rejected,  for  the  reason  that  such  a  proceeding 
is  essentially  in  rem;  that  the  vendor  is  only  seeking  to  reach  what 
he  had  sold,  and  that  it  is  immaterial  to  the  purchaser  whether  the 
title  in-  such  a  case  be  good  or  bad.42  The  defense  of  set-off  or 

after  the  purchase  has  been  carried  into  execution  by  the  delivery  of  the 
deed,  if  there  has  been  no  ingredient  of  fraud  and  the  purchaser  is  not 
evicted,  the  insufficiency  of  title  is  no  ground  for  relief  against  a  security 
given  for  the  unpaid  purchase  money."  This  is,  undoubtedly,  the  general  rulo. 
It  is,  also,  an  equally  well-established  rule  that  where  there  has  been  an  evic- 
tion to  which  the  covenants  of  the  grantee  extend,  he  may  recoup  the  damages 
thence  sustained  in  an  action  for  the  purchase  money.  Rawle  Covts.  for  Title 
(5th  ed.),  §  326.  Consequently  the  reason  given  by  Mr.  Waterman  for  the 
rule  as  stated  by  him  is  somewhat  unsatisfactory.  He  says:  "The  reason  is 
that  the  bond1  and  mortgage  for  the  payment  of  the  purchase  money,  and  the. 
covenant  of  warranty  from  the  grantor,  are  separate  and  independent  cove- 
nants and  the  breach  of  one  cannot  be  urged  as  a  defense  to  an  action  upon 
the  other."  Citing  Timms  v.  Shannon,  19  Md.  206,  81  Am.  Dec.  632;  Grant 
v.  Tallmans,  20  X.  Y.  191.  Such  a  reason  would  apply  as  well  where  there 
was  an  actual  eviction  as  where  the  possession  of  the  grantee  has  not  1.. .  n 
disturbed,  and  would  be  subversive  of  the  rule  which,  to  prevent  a  cimiity  of 
action,  permits  the  evicted  purchaser  to  retain  the  unpaid  purchase  money 
instead  of  turning  him  around  to  his  action  for  breach  of  covenant. 

*See  further,  Sawyer  v.  Wiswall,  9  Allen  (Mass.).  30;  Stacy  v.  Kemp,  97 
Mass.  166;  Carey  v.  Guillow,  105  Mass.  18,  7  Am.  Rep.  4!M. 

41 2  Jones  Mort.  (3d  ed.)  §§  1496,  et  »eq.  Roake  v.  Sullivan,  125  N.  Y. 
Supp.  835. 

*  Jones  v.  Fulghum,  3  Tenn.  Oh.  103;  Cohen  v.  Woolard,  2  Tenn.  Ch.  686; 
Hurley  v.  Coleman,  3  Head  (Tenn.),  265,  which  was  a  suit  to  enforce  a 
vendor's  lien;  Curd  v.  Davis,  1  Heinle.  (Tenn.)  574;  Williams  v.  Sax  (Tenn.), 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.   497 

counterclaim  obviously  stands  on  different  grounds.43  But  if  the 
conveyance  under  which  the  defendant  held  contained  covenants 
for  title,  and  there  had  been  such  a  breach  of  them  as  to  give  him 
a  present  right  to  recover  damages  against  the  plaintiff,  he  may 

43  S.  W.  Rep.  868.  See,  also,  post,  §  333.  Rawle  Covts.  (5th  ed.)  §  351; 
Hubbard  v.  Chappel,  14  Ind.  601 ;  Rogers  v.  Place,  29  Ind.  577 ;  Jackson  v. 
Fosbender,  45  Ind.  305;  McLeod  v.  Barnum,  131  Cal.  605,  63  Pac.  Rep.  924. 
In  Reed  v.  Tioga  Manfg.  Co.,  66  Ind.  27,  a  personal  judgment  was  sought 
against  the  defendant,  but  the  rule  stated  in  the  text  was  admitted.  Ludlow 
v.  Gilman,  18  Wis.  552;  Peters  v.  Bowman,  98  U.  S.  56;  Hulfish  v.  O'Brien, 
5  C.  E.  Green  (N.  J.),  230;  Kuhner  v.  Parker,  56  N".  J.  Eq.  286,  38  Atl. 
Rep.  641 ;  Ratkewicz  v.  Kara,  88  N.  J.  Eq.  201,  103  Atl.  912.  In  the  follow- 
ing New  York  cases,  the  court  refused  to  stay  the  enforcement  of  purchase- 
money  mortgages  upon  the  mere  ground  that  the  title  was  defective:  Platt 
v.  Gilchrist,  3  Sandf.  Ch.  (N.  Y.)  118;  Griffith  v.  Kempshall,  1  Clarke  Ch. 
(N.  Y.)  571;  Hoag  v.  Rathbun,  1  Clarke  Ch.  (X.  Y.)  12;  Farnham  v.  Hotch- 
kiss,  2  Keyes  (N.  Y.),  9;  York  v.  Allen,  30  N.  Y.  105;  Parkinson  v.  Sherman, 
74  N.  Y.  88;  30  Am.  Rep.  268;  Ryerson  v.  Willis,  81  N.  Y.  277;  Gifford 
v.  Society,  104  N.  Y.  139,  10  N.  E.  Rep.  39;  Soule  v.  Dixon,  1  N.  Y.  Supp. 
697;  Wright  v.  Phipps,  90  Fed.  556,  98  Fed.  1007;  Beebe  v.  Swartwout,  3 
Gilm,  (111.)  177,  where  it  was  said:  "It  will  be  observed  that  S.  (the 
vendor)  does  not  seek  to  collect  the  purchase  money  in  this  case;  he  simply 
aska  to  have  the  equity  of  redemption  foreclosed  if  the  purchase  money  is 
not  paid.  He  cannot  obtain  a  judgment  against  B.  (the  purchaser)  and  pay 
himself  out  of  the  general  property  of  B.  If  he  obtained  any  money  at  all, 
it  is  out  of  the  special  fund,  the  land,  upon  which  he  holds  a  mortgage.  In 
this  view  of  the  case,  the  failure  of  title  in  his  grantor  can  hardly  affect  him. 
His  equity  of  redemption  is  worthless  ii  the  legal  title  to  the  premises  fail." 
It  is  true  that,  if  the  mortgagor  had  paid  a  part  of  the  purchase  money,  he 
would  have  an  equitable 'interest  in  the  property  to  that  extent;  but,  in  view 
of  the  fact  that  he  could  only  obtain  relief  against  a  demand  for  the  pur- 
chase money  by  showing  a  clear  outstanding  title  in  a  stranger  and  an  immi- 
nent danger  of  eviction  from  the  premises,  and  that  he  would  be  liable  over  to 
the  real  owner  for  the  mesne  profits,  there  would  be  little  to  gain  by  resisting 
the  foreclosure  of  a  mortgage,  if  the  mortgagee  does  not  seek  to  hold  him 
liable  for  a  deficiency.  If  the  purchaser  had  given  a  mortgage  on  other 
property  to  secure  the  purchase  money,  a  different  question  would  be  pre- 
sented. So,  also,  if  the  objection  to  the  foreclosure  is  that  there  are  incum- 
brances  on  the  property  which  the  covenantor  is  bound  to  remove. 

43  In  Hooper  v.  Armstrong,  69  Ala.  343,  it  was  held  that  a  suit  to  foreclose 
a  vendor's  equitable  lien  for  purchase  money,  was  not  a  proceeding  in  rem, 
but  a  proceeding  in  personam  in  which  the  defense  of  set-off  can  be  made. 
But  see  Parker  v.  Hart,  32  N.  J.  Eq.  225. 

63 


498  MAKKETABLE   TITLE   TO   REAL,   ESTATE. 

avail  himself  of  that  defense  by  way  of  recoupment,44  even  though, 
it  would  seem,  no  personal  judgment  is  sought  against  him.45  If 
there  be  a  prior  incumbrance  on  the  premises,  it  seems  to  be  gen- 
erally conceded  that  the  purchase  money  may  be  detained  until  the 
covenantor  removes  the  incumbrance,  or  reduces  it  to  a  sum  not 
exceeding  the  unpaid  purchase  money.46  ]f  the  incumbrance  is 
less  in  amount  than  the  balance  of  purchase  money  due,  and  the 
covenantee  chooses  himself  to  remove  it,  he  immediately  becomes 
entitled  to  substantial  damages  for  breach  of  the  covenant  against 
incumbrances,  and  may  avail  himself  of  that  defense  in  the  suit 
to  foreclose,  or  he  may  apply  the  purchase  money  to  the  discharge 
of  incumbrances,  as  far  as  it  will  go,  and  obtain  ail  injunction 
until  the  residue  of  the  lien  is  removed  by  the  covenantor.47  An- 
other reason  why  a  mortgagor  or  vendee  in  possession  cannot  be 
allowed  to  set  up  an  outstanding  title  in  another  in  bar  of  a  bill 
to  foreclose  a  purchase-money  mortgage,  or  to  enforce  a  vendor's 

**2  Jones  Mort.  (3d  ed.)  §  1500,  and  cases  cited,  ante,  §  180.  Hoffman  v. 
Kirby,  136  Cal.  26,  68  Pac.  Rep.  321;  Williams  v.  Baker,  100  Mo.  App.  284, 
aff'd  73  S.  W.  Rep.  339;  Brady  v.  Bank  of  Com.,  41  Okl.  473,  138  Pac.  1020. 
If  no  such  breach  of  the  covenants  for  title  had  occurred,  the  defendant  would 
have  no  ground  for  recoupment  and  would  not  be  allowed  to  make  that  de- 
fense, though  there  might  be  a  personal  decree  against  him  for  a  deficiency. 
Edwards  v.  Bodine,  26  Wend.  (N.  Y.)  109;  Leggett  v.  MtCarty,  3  Edw. 
(N.  Y.)  124. 

41  For  example,  if  the  defendant,  the  mortgagor,  had  been  compelled  to  buy 
in  adverse  claims  to  protect  his  title,  it  would  be  clearly  inequitable  to 
deprive  him  of  his  right  to  recoup  the  damages  so  incurred,  merely  because 
the  plaintiff  asked  no  personal  judgment  against  him.  Therefore,  where,  in 
a  proceeding  in  equity  to  enforce  a  purchase-money  lien,  in  which  it  appeared 
that  the  vendor  had  expended  moneys  in  getting  in  the  title  of  an  adverse 
claimant  of  part  of  the  land,  it  was  held  error  to  enter* a  decree  for  the 
plaintiff,  without  directing  a  reference  to  a  master  to  ascertain  whether  such 
adverse  title  was  paramount  or  not,  and  whether  the  purchaser  was  entitled 
to  an  abatement.  Smith  v.  Parsons,  33  W.  Va.  644;  11  S.  E.  Rep.  68. 

*Po»t,  ii  332,  335.  Buell  v.  Tate,  7  Bl.  (Ind.)  65;  Smith  v.  Fiting,  37 
Mich.  148,  semblr;  Hughes  v.  McNider,  90  N.  C.  248;  McCrath  v.  Myers, 
126  Mich.  204,  85  X.  W.  Rep.  712. 

w  Jones  Mort.  f  1504;  Whisler  v.  Hicks,  5  Bl.  (Ind.)  100;  33  Am.  Dec. 
454;  Smith  v.  Ackerman,  5  Bl.  (Ind.)  541;  Oldtifld  v.  Stevenson,  1  Ind.  153; 
Small  v.  Reeves,  14  Ind.  164;  Potwin  v.  Blasher,  9  Wash.  460;  37  Pac. 
Rep.  710. 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.   499 

lien  for  the  purchase  money,  is,  that  he  stands  in  the  relation  of  a 
tenant  to  the  vendor  and  is  estopped  to  deny  the  title  of  the  latter.48 

There  are  cases  which  declare  that  in  a  suit  for  the  foreclosure  of 
a  mortgage  given  for  the  purchase  money,  the  mortgagor,  though 
personally  liable  for  the  debt,  cannot  set  up  want  of  title  in  the 
vendor  as  a  defense,  unless  he  has  been  evicted  from  the  possession. 
These  decisions  are  rested  precisely  upon  the  same  grounds  as  those 
which  deny  the  right  of  the  covenantee  to  detain  the  purchase 
money  unless  he  has  been  evicted,  and  would  seem  to  admit  of  the 
same  exceptions  where  the  vendor  is  insolvent  or  a  non-resident, 
and  suit  is  being  actually  prosecuted  or  threatened  by  an  adverse 
claimant.49  If  the  purchaser  has  paid  a  part  of  the  purchase 
money,  or  has  expended  money  in  improving  the  premises,  so  as 
to  entitle  him  to  an  equitable  lien  thereon,  there  are  cases  which 
hold  that  these  facts  may  be  availed  of  by  him  in  a  suit  to  fore- 
close the  mortgage.50  I'f  the  grantee  has  been  evicted  from  a  part 
of  the  premises,  he  may  set  up  that  fact  as  a  defense  in  foreclosure 
proceedings.  But  in  such  a  suit  he  cannot  claim  an  abatement  of 
the  purchase  money  of  land  actually  sold  and  conveyed  to  him  on 
account  of  the  failure  of  title  to  other  land  which  was  not  in  fact 
sold,  though  it  was  inadvertently  conveyed  to  him.51 

In  the  State  of  Virginia  the  enforcement  of  a  security  for  the 
purchase  money  by  a  sale  of  the  premises,  is  not  permitted  in  any 
case  in  which  the  title  is  in  doubt.  This,  however,  is  in  the  inter- 
est of  all  parties,  that  there  may  be  no  sacrifice  of  the  premises, 

^Bigelow  on  Estoppel  (3d  ed.),  427,  citing,  among  other  cases,  Strong  v. 
Waddell,  56  Ala.  471,  and  Wallison  v.  Watkins,  3  Peters  (U.  C.),  43,  52.  In 
the  last  case  the  mortgage  does  not  appear  to  have  been  given  to  secure  pur- 
chase money. 

49  Banks  v.  Walker,  2  Sandf.  Ch.  (X.  Y.)  344;  Davison  v.  De  Freest,  3 
Sandf.  Ch.  (X.  Y.)  456;  Falkner  v.  Hackett,  104  Wis.  608,  80  N.  W.  Rep. 
940;  Nathans  v.  Steinmeyer,  57  S.  C.  386,  35  S.  E.  Rep.  733;  Moore  v.  Beard, 
91  S.  C.  496,  74  S.  E.  1062;  Paine  v.  Kemp,  (Fla.)  82  So.  53;  Burke  v. 
Timber  Co.,  224  Fed.  591.  The  same  rule  applies  in  a  suit  to  enforce  a 
vendor's  lien.  Young  v.  Figg,  (Xeb. )  100  X.  W.  Rep.  311. 

5tf  Rockwell  v.  Wells,  (Mich.)  62  X.  W.  Rep.  165;  Dayton  v.  Melick,  32 
N.  J.  Eq.  570;  De  Kay  v.  Bliss,  (X.  Y.)  34  X.  E.  Rep.  300;  Jones  Mortg.  (4th 
ed.)  1490. 

51  Elder  v.  First  Xat.  Bank,  91  Tex.  423,  44  S.  W.  Rep.  62. 


500  MAKKETABLE  TITLE  TO  REAL  ESTATE. 

and  that  a  doubtful  title  may  not  be  forced  upon  a  purchaser  at  the 
sale." 

§  185.  PARTIAL  FAILURE  OF  THE  CONSIDERATION.  The 
consideration  which  passes  from  the  grantor  to  the  grantee  upon  a 
conveyance  of  lands  with  unlimited  covenants  for  title  is,  according 
to  the  better  opinion,  not  the  mere  covenants  for  title  which  the 
conveyance  contains,  but  the  transfer  of  an  indefeasible  estate,  so 
that  if  the  purchaser  be  evicted  from  the  premises  by  one  claiming 
under  a  paramount  title,  there  is  a  clear  failure  of  the  considera- 
tion," though,  it  seems  according  to  common  law,  not  an  entire 

"Post,  8  337.  Peers  v.  Barnett,  12  Grat.  (Va.)  415,  where  it  was  said  by 
the  court:  "A  distinction  seems  to  have  been  taken  by  some  of  the  reported 
cases  as  to  the  relief  a  court  of  equity  will  extend  to  a  vendee  who  has 
accepted  his  deed  with  covenants  of  general  warranty,  where  he  seeks  to 
enjoin  a  judgment  for,  or  the  collection  of,  the  purchase  money,  and  the  case 
where  the  vendor,  instead  of  proceeding  against  the  vendee  personally,  is 
attempting  to  sell  the  land  under  a  deed  of  trust  or  by  bill  in  equity;  that 
although  the  facts  may  not  authorize  the  court  to  enjoin  the  collection  of  the 
purchase  money  by  a  proceeding  against  the  vendee  at  law,  yet  as  a  court  of 
equity  reprobates  a  sale  of  land  when  clouds  are  hanging  over  the  title,  it 
will,  for  the  benefit  of  the  parties  and  the  security  of  the  purchaser  at  any 
sale  of  the  subject  enjoin  or  refuse  to  decree  a  sale  of  the  land  until  the  title 
is  cleared  up.  The  case  of  Beale  v.  Seively,  8  Leigh  (Va.),  658,  is  a  case  of 
the  first  class.  It  was  there  decided  that  where  a  vendee  is  in  possession  of 
land  under  a  conveyance  with  general  warranty,  and  the  title  has  not  been 
questioned  by  any  suit  prosecuted  or  threatened,  such  vendee  has  no  claim 
to  relief  in  equity  against  the  payment  of  the  purchase  money  unless  he  can 
show  a  defect  of  title  respecting  which  the  vendor  was  guilty  of  fraudulent 
concealment  or  misrepresentation,  and  which  the  vendee  had  at  the  time  no 
means  of  discovering.  In  Pvalston  v.  Miller,  3  Rand.  (Va.)  44;  15  Am.  Dec. 
704;  Koger  v.  Kane,  5  Leigh  (Va.),  600;  Clarke  \.  Hardgrove,  7  Grat.  (Va.) 
399,  this  court  has  extended  the  relief  to  cases  where  the  vendee,  placing 
himself  in  the  position  of  the  superior  claimant,  can  show  clearly  that  the 
title  is  defective.  The  principle  that  a  court  will  not  sell  or  permit  a  sale 
of  land  with  a  cloud  hanging  over  the  title,  is  affirmed  in  Lane  v.  Tidhall, 
Gilm.  (Va.)  130;  Gay  v.  Hancock,  1  Rand.  (Va.)  72;  Miller  v.  Argyle,  5 
Leigh  (Va.),  480." 

"Rawle  Covt.  (5th  ed.)  |  327.  Cook  v.  Mix,  11  Conn.  432;  Knapp  v.  Lee, 
3  Pick.  (Ma*H.)  459;  Rice  v.  Goddard,  14  Pick.  (Mass.)  293;  Tra*k  v.  Vin- 
son,  20  Pick.  (Mass.)  110;  Tilotson  v.  Grapes,  4  N.  H.  448;  Deal  v.  Dodge, 
26  111.  46S;  Tyler  v.  Young,  2  Scam.  (111.)  445;  35  Am.  Dec.  116;  Thompson 
v.  Shoemaker,  68  111.  256:  Dunning  v.  Leavitt,  85  N.  Y.  34,  39  Am.  Rep. 
617.  A  contrary  view  was  expressed  in  the  early  cases  of  Lloyd  v.  Jewell, 
1  Gr.  (Me.)  352;  10  Am.  Dec.  73,  and  Gridley  v.  Tucker,  1  Freem.  Ch. 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.       501 

failure,  possession  once  had  under  the  contract  being  a  partial 
enjoyment  of  the  consideration  unless  the  grantee  was  liable  for  the 
rents  and  profits.  The  modern  doctrine,  however,  at  least,  so  far 
as  it  is  exemplified  by  the  American  decisions,  is  that  an  eviction 
from  the  premises  by  an  .adverse  claimant  produces  a  total  failure 
of  the  consideration.  One  of  the  principal  reasons  for  the  rule 
that  the  covenantee  cannot  detain  the  purchase  money  so  long  as  he 
is  in  possession  of  the  premises  is,  that  until  he  is  actually  or  con- 
structively evicted  there  is  only  a  partial  failure  of  the  considera- 
tion of  his  promise  to  pay.54  The  detention  of  the  purchase  money 
is  in  effect  a  species  of  rescission  of  the  contract,  and  there  can  be 
no  rescission  of  a  contract  while  either  party  is  in  the  enjoyment 
of  any  of  its  benefits.55  Hence,  it  follows  that  there  may  be  only  a 
partial  failure  of  the  consideration  in  a  case  in  which  the  title  has 
entirely  failed.56  Partial  failure  of  title  is  sometimes  spoken  of  in 
the  cases ;  apparently  in  the  sense  of  partial  failure  of  the  consider- 
ation ; 57  but  it  is  an  expression  likely  to  lead  to  confusion  of  ideas, 
for  strictly  speaking  there  is  no  such  thing  as  a  partial  failure  of 
title,  though,  of  course,  there  may  be  a  failure  of  title  to  part  of 
the  subject.  Accordingly  there  are  many  cases  in  which  the  right 
of  the  covenantee  to  resist  the  payment  of  the  purchase  money 
while  he  is  in  the  undisturbed  possession  of  the  premises  is  denied 
upon  the  ground  that  there  has  been  no  more  than  a  partial  failure 
of  the  consideration,  though  there  has  been  a  complete  and  pal- 
pable failure  of  the  title.58 

(Miss.)  211,  but  these  cases  are  overruled  by  or  are  inconsistent  with  the 
later  cases  cited  above. 

"There  can  never  be  a  total  failure  of  the  consideration  of  a  conveyance 
with  covenant  of  warranty,  until  the  covenantee  has  been  actually  or  con- 
structively evicted.  Key  v.  Hansom,  17  Ark.  254;  McDaniel  v.  Grace,  15 
Ark.  487.  Contra,  Cook  v.  Mix,  11  Conn.  437. 

"Whitney  v.  Lewis,  21  Wend.  (N.  Y.)  131.  Patton  v.  England,  15  Ala. 
69 ;  Stark  v.  Hill,  6  Ala.  785. 

58  Thus,  it  has  been  held  that  if  the  estate  transferred  turn  out  to  be  a  life 
interest  instead  of  a  fee,  and  the  covenantee  be  put  in  possession,  there  is  no 
entire  failure  of  the  consideration  since  he  derives  some  benefit  from  the 
conveyance.  Bowley  v.  Holway,  124=  Mass.  3®5;  Greenleaf  v.  Cook,  2  Wh. 
(U.  S.)  13. 

M  As  in  Bowley  v.  Holway,  124  Mass.  396. 

88 2  Kent  Com.   (12th  ed.)  473,  3  Sedg.  Dam.   (8th  ed.)   §  1083;  Waterman 


502  MARKETABLE   TITLE   TO   REAL   ESTATE. 

In  other  cases,  however,  the  doctrine  that  a  partial  failure  of  the 
consideration  cannot  be  availed  of  by  the  defendant  in  an  action  for 
the  purchase  money  of  land,  has  been  denied,59  and  in  a  few  cases 
a  total  failure  of  the  title  has  been  treated  as  a  total  failure  of  the 
consideration,  without  regard  to  the  question  of  eviction.60  There 
would  seem  to  be  no  occasion  to  invoke  the  doctrine  of  partial 
failure  of  the  consideration  in  behalf  of  the  plaintiff  so  long  as  the 
right  of  the  defendant  to  detain  the  purchase  money  may  be  satis- 
factorily denied  upon  another  ground,  namely,  that  until  the  cove- 
nantee  has  been  evicted  by  an  adverse  claimant  where  the  cove- 
nants are  of  warranty  or  for  quiet  enjoyment,  or  has  suffered  actual 
damages  from  an  incumbrance  on  the  premises,  where  the  covenant 
is  against  incumbrances,  there  can  be  no  right  to  recover  substan- 
tial damages  as  for  a  breach  of  those  covenants,  and,  consequently, 
nothing  to  recoup  from  the  plaintiff's  demand.  AYhere  there  has 
been  a  partial  failure  of  the  consideration,  in  the  sense  of  a  loss  of 

Set-Off  (2d  ed.),  §  560:  Rawle  Covts.  (5th  ed.)  §  330,  et  aeq.  Moggridge  v. 
Jones,  3  Camp.  38;  14  East,  486;  Greenleaf  v.  Cook,  2  Wh.  (U.  S.)  13; 
Scudder  v.  Andrew's,  2  MeL.  (U.  S.)  464,  and  analogous  cases  there  cited. 
Freeligh  v.  Platt,  5  Cow.  (X.  Y.)  494;  Whitney  v.  Lewis,  21  Wend.  (N.  Y.) 
131;  Tallmadge  v.  Wallis,  25  Wend.  (X.  Y.)  113;  Lamerson  v.  Marvin,  8 
Barb.  (X.  Y.)  11:  Farnham  v.  Hotchkiss,  2  Keyea  (N.  Y.),  9;  Tibhetts  v. 
Ayer,  Lai.  Supp.  (X.  Y.)  176:  Parkinson  v.  Sherman,  74  N.  Y.  88,  30  Am. 
Rep.  268;  Ryerson  v.  Willis,  8>  X.  Y.  277;  Bowley  v.  Holway,  124  Mass. 
395;  Glenn  v.  Thistle.  23  Miss.  42;  Leal  v.  Terbush,  52  Mich.  100,  17  X.  W. 
Rep.  713;  Hunt  v.  Midclleworth,  44  MSch.  448;  Peden  v.  Moore,  1  Stew.  & 
P.  (Ala.)  71,  2  r  Am.  Dec.  649. 

In  Reese  v.  Gordon,  19  Cal.  149,  it  wa^  said:  "In  cases  of  fraud  or  war- 
ranty, or  where  the  consideration  is  divisible  or  capable  of  apportionment, 
a  partial  failure  may  sometimes  be  given  in  evidence  in  reduction  of  dam- 
ages: but  the  practice  in  this  respect  proceeds  upon  the  principle  of  a  cross- 
action,  and  an  affirmative  right  of  action  must  exist  in  favor  of  a  party  seek- 
ing relief  in  that  form."  The  "partial  failure"  here  mentioned  must  moan 
a  case  in  which  the  purchaser  has  been  evicted  from  part  of  the  premises: 
otherwi.se  the  two  propositions  contained  in  the  remarks  of  the  court  would 
be,  as  respects  the  covenant  of  warranty,  contradictory  and  inconsistent;  for 
unless  the  purchaser  had  been  evicted  from  the  premises  in  whole  or  in  part 
there  could  be  no  "affirmative  right  of  action  "  against  the  covenantor. 

"Friable  v.  Hoffnagle,  11  John-.  (N.  Y.)  50;  James  v.  Lawrenccburg  Ins. 
Co.,  6  Bl.  (Ind.)  525;  Cook  v.  Mix,  11  Conn.  438;  Moon  v.  Ellsworth,  3 
Conn.  483;  Dahle  v.  Stakke.  12  X.  Dak.  325.  96  X.  W.  Rep.  353;  Black  Hillr. 
Xat.  Bank  v.  Kellogg,  45  Dak.  312;  56  X.  W.  Rep.  1071. 

" Friable  v.  Hoffnagle,  11  Johns.  (X.  Y.)   50;  Cook  v.  Mix,  11  Conn.  438. 


DETENTION  OF  PURCHASE  MONEY BKEACII  OF  COVENANT.       503 

a  part  of  the  warranted  premises,  by  eviction  under  an  incum- 
brance  or  a  paramount  title,  there  can  be  no  doubt  of  the  covenan- 
tee's  right,  according  to  the  rule  prevailing  in  America,  to  recoup 
the  damages  thus  sustained,  in  an  action  for  the  purchase  money.61 

In  New  York  a  partial  failure  of  the  consideration  of  an  agree- 
ment to  pay  the  purchase  money  for  lands  conveyed  with  covenants 
of  warranty  and  for  quiet  enjoyment  cannot  be  pleaded  in  bar,  but 
must  be  availed  of  by  way  of  recoupment  or  counterclaim,  with 
notice  that  such  defense  is  intended  to  be  made.62  But  if  the  con- 
sideration has  totally  failed,  that  is,  if  the  covenantee  has  been 
evicted  from  the  whole  premises,  that  fact  may  be  pleaded  in  bar 
to  an  action  for  the  purchase  money.63 

In  some  cases  it  has  been  held  that  damages  resulting  from  a 
partial  failure  of  the  consideration  cannot  be  recouped  in  an  action 
for  the  purchase  money,  upon  the  ground  that  the  doctrine  of  re- 
coupment or  set-off  is  of  equitable  origin  and  cognizable  only  in  a 
court  of  equity.64  These  decisions  do  not  appear  to  have  been 
followed  in  the  other  States. 

§  186.  ASSUMPSIT  TO  THY  TITLE,  An  objection  to  the  ad- 
mission of  the  defense  of  complete  failure  of  the  title  in  an  action 
for  the  purchase  money,  where  the  defendant  has  not  been  evicted, 
which  has  been  frequently  made,  is,  that  the  court  cannot  under- 
take in  such  an  action  to  try  the  title ;  in  other  words,  that  title  to 
land  cannot  be  tried  in  an  action  of  assumpsit.65  This  is  un- 
doubtedly true  where  the  plaintiff,  a  stranger,  asserts  a  title  para- 
mount to  that  of  the  defendant,  e.  g.,  where  he  seeks  to  recover  the 
rents  and  profits  of  the  land  enjoyed  by  the  defendant.66  But  this 

61McHenry  v.  Yokum,  27  111.  160;  Dahle  v.  Stakke,  12  1ST.  Dak.  325,  96 
N.  W.  Rep.  353. 

62  Lewis  v.  McMillen,  41  Barb.  (N.  Y.)  420;  McCullough  v.  Cox,  6  Barb. 
(N.  Y.)  386;  Tibbetts  v.  Ayer,  Lai.  Supp.  (N.  Y.)  17*. 

"Tallmadge  v.  Wallis,  25  Wend.   (N.  Y.)    116. 

84  Wheat  v.  Dotson,  12  Ark.  699;  McDaniel  v.  Grace,  15  Ark.  487;  Key  v. 
Hanson,  17  Ark.  254. 

65  Leal  v.  Terbush,  52  Mich.  100,  17  N.  W.  Rep.  713;  Dennis  v.  Heath,  11 
Sm.  &  M.  (Miss.)  206,  49  Am.  Dec.  51. 

86  Marshall  v.  Hopkins,  15  East,  309;  Newsome  v.  Graham,  10  B.  &  C.  234; 
Baker  v.  Howell,  6  S.  &  R.  (Pa.)  481;  Hogsett  v.  Ellis,  17  Mich.  351;  Cod- 
nian  v.  Jenkins,  14  Mass.  93;  Boston  v.  Binney,  11  Pick.  (Mass.)  1. 


504  MARKETABLE   TITLE   TO   REAL   ESTATE. 

doctrine,  in  its  application  to  the  defense  of  failure  of  title  in  an 
action  to  recover  the  purchase  money  of  lands,  has  been  criticised, 
in  that  it  assumes  an  eviction  of  the  defendant  to  be  conclusive  of 
the  question  of  title,  and  of  the  right  to  detain  the  purchase 
money.67  It  is  familiar  law  that  the  defendant  must  show,  either 
by  the  judgment  of  a  court  of  record,  or  by  evidence  aliunde,  that 
the  eviction  was  under  a  title  paramount  to  that  of  the  covenantor, 
Hence,  in  the  latter  case,  the  court  must  necessarily  pass  upon 
the  title  and  the  rights  of  strangers  in  determining  the  sufficiency 
of  the  defense;  and  this  is  constantly  done.  Besides  the  objec- 
tion in  question  would  apply  as  well  where  the  contract  is  execu- 
tory as  where  it  has  been  executed  by  a  conveyance  with  covenants 
for  title,  and  if  it  were  insuperable,  would  in  any  and  every  case 
destroy  the  right  of  the  purchaser  to  detain  the  purchase  money 
upon  a  clear  failure  of  the  title,  or  to  avail  himself  of  the  doctrine 
of  marketable  title  in  an  action  at  law,  unless  the  failure  of  the 
title  had  been  established  by  the  judgment  of  a  court  of  record. 

§  187.  WHAT  CONSTITUTES  EVICTION  —  PURCHASE  OF  OUT- 
STANDING TITLE.  The  failure  of  title  to  real  estate  may  be  pal- 
pable and  complete,  as  where  the  vendor,  undertaking  to  convey  a 

"Rawle  Covts.  for  Title  (5th  ed.),  8  334,  n.,  where  the  author  says:  "It 
may  be  observed  that  the  objection  to  trying  the  title  to  land  in  an  action  for 
ita  contract  price  must  equally  apply  in  every  case  where  the  paramount  title 
had  not  been  established  by  a  judgment  of  a  court  of  record.  Yet  to  give  to 
such  judgment  a  conclusive  effect  would  be,  when  the  vendor  had  not  been 
vouched  or  notified,  contrary  to  well-established  principle,  and  it  ia  appre- 
hended that  in  every  such  case  the  purchaser  would  be  bound  to  make  out 
the  adverse  title  under  which  he  had  been  evicted,  or  to  which  he  had 
yielded,  with  as  much  particularity  as  if  suing  on  the  covenants;  and  there 
would  aeem  to  be  no  greater  objection  to  the  question  of  title  being  brought 
before  the  court  in  the  form  of  one  action  than  in  the  other."  See.  also, 
further  observation  at  p.  631,  n.,  same  volume.  In  Redding  v.  Lamb,  (Mich.) 
45  X.  W.  Rep.  907,  it  wiw  said  by  LONG,  J. :  "  The  general  rule  ia  that 
damages  for  breach  of  covenant  of  seisin  in  a  conveyance  of  land  are  only 
recoverable  in  an  action  for  breach  of  covenant,  as  titles  to  land  are  not 
properly  triable  in  actions  of  a/mtimpnit ;  but  I  can  see  no  good  reason  for 
remitting  a  party  to  another  action  where  the  action  is  brought  to  recover 
the  purchase  price  of  the  land  sold  and  there  is  failure  of  title.  If  the  title 
has  failed  absolutely,  then  there  is  no  consideration  for  the  note,  and  the 
money  recovered  thereon  would  have  to  be  repaid  when  the  facts  were  eatab- 
lished  in  an  action  for  breach  of  covenant." 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.       505 

fee  with  warranty,  had  only  a  term  for  years  which  had  expired, 
yet  until  the  grantee  has  been  actually  or  constructively  evicted  by 
an  adverse  claimant  under  color  of  title  there  is  no  breach  of  the 
covenants  of  warranty  or  for  quiet  enjoyment,  no  right  to  recover 
damages  against  the  covenantee, .  and,  consequently,  no  right  to 
detain  the  unpaid  purchase  money.  What  constitutes  a  breach  of 
those  covenants  has  been  already  considered,68  and  it  only  remains 
for  the  sake  of  convenience,  to  consider  here  briefly  the  application 
of  the  principles  there  discussed  to  the  defense  of  failure  of  title 
in  actions  to  recover  the  purchase  money.  Among  the  most  im- 
portant of  these  principles  is  that  which  allows  the  purchaser  to 
deduct  from  the  purchase  money  any  sum  that  it  may  have  been 
necessary  for  him  to  pay  to  adverse  claimants  in  order  to  protect 
his  title.  If  he  buys  in  an  adverse  title  to  prevent  eviction,  that  is 
held  the  equivalent  of  an  eviction,  as  respects  the  right  to  detain 
the  purchase  money.  He  cannot  be  turned  around  to  his  action  on 
the  covenant  for  indemnity.69  But  unless  the  rights  of  the  para- 
mount claimant  have  been  fixed  by  judgment  in  a  possessory  action, 
recovered  after  notice  to  the  covenantor,  so  as  to  make  the  judg- 
ment conclusive  upon  him,  the  covenantee  will  have  the  burden  of 
establishing  the  superiority  of  the  title  acquired  by  him  from  the 
adverse  claimant.70  If  there  has  been  no  eviction  or  disturbance 
of  the  covenantee  in  his  possession  of  the  estate,  and  it  does  not 
appear  that  the  adverse  claimant  could  in  all  probability  have 
recovered  the  land,  the  covenantee  will  not  be  reimbursed  for  the 
amount  paid  by  him  to  get  in  the  alleged  outstanding  title.71  The 
covenantee  cannot,  of  course,  claim  the  benefit  of  the  title  so  ac- 
quired, except  as  a  set-off  against  the  purchase  money  to  the  amount 
paid  by  him  to  the  adverse  claimant.  He  cannot  set  up  such  title 
adversely  to  that  of  his  grantor.72  !N~or  can  he  escape  the  applica- 

"Ante,  §  142.  Dower  recovered  against  the  covenantee  constitutes  a  good 
defense  to  an  action  for  the  purchase  money.  McHenry  v.  Yokum,  27  111.  160. 

«9Rawle  Covts.  (5th  ed.)  §  334;  Dart  Vend.  (5th  ed.)  ch.  15,  §  7.  Ante, 
§  150;  Brandt  v.  Foster,  5  Iowa,  287;  Stelzer  v.  Rose,  79  Ind.  435;  Denson 
v.  Love,  59  Tex.  468. 

"Ante,  §  151. 

"Ante,  §  151.  Blair  v.  Perry,  7  J.  J.  Marsh.  (Ky.)   152. 

"1  Sugd.  Vend.   ( Sited.)  533  (355).    Post,  §  202. 

64 


506  MARKETABLE   TITLE   TO   REAL   ESTATE. 

tion  of  this  rule  by  procuring  a  third  person  to  get  in  the  out- 
standing title.73  The  covenantee  may  also  surrender  the  possession 
to  a  paramount  claimant,  and  set  up  that  fact  as  a  defense  to  an 
action  for  the  purchase  money.  He  is  not  bound  to  await  an  actual 
eviction  by  the  real  owner.  But  he  will  have  the  burden  of  show- 
ing that  the  surrender  was  in  good  faith,  and  that  the  title  of  the 
adverse  claimant  was  one  to  which  he  must  have  inevitably 
yielded.74 

The  laws  of  the  United  States  forbid  the  sale  and  transfer  of 
mere  pre-emption  rights  of  public  lands,  and  make  the  land  so  sold 
liable  to  resale  in  the  hands  of  the  purchaser  as  public  lands.  Such 
a  resale,  it  has  been  frequently  held,  is  equivalent  to  an  eviction  for 
the  reason  that  it  carries  with  it  a  constructive  dispossession  of  the 
original  purchaser,  the  government  having  the  right  to  regain  the 
possession  by  a  summary  proceeding  without  suit.  Consequently, 
in  such  a  case,  the  covenantee,  holding  under  a  conveyance  from 
the  pre-emptor  with  covenant  of  warranty,  may  detain  the  pur- 
chase money  though,  he  has  not  been  actually  evicted  from  the 
premises.78 

At  one  time  it  was  held  that  a  covenantee,  seeking  to  detain  the 
purchase  money,  must  show  an  eviction  by  legal  process,  but  that 
doctrine  has  been  modified,  and  it  is  now  considered  that  an  evic- 
tion by  an  adverse  claimant,  under  color  of  title,  satisfies  the  rule. 
An  eviction,  whether  actual  or  constructive,  entitles  him  to  detain 
the  purchase  money.78  In  Xew  York  taxes  assessed  to  the  vendor 

"Brodie  v.  Watkins,  31  Ark.  319,  34  Am.  Rep.  49,  where  it  was  said  that 
a  covenantee  who  procures  a  third  person  to  buy  in  the  premises  at  a  sale 
under  an  outstanding  incumbrance,  may  avail  himself  of  the  amount  so  paid 
out,  as  a  recoupment  in  an  action  for  the  purchase  money,  hut  cannot  set 
up  the  title  so  acquired  to  defeat  the  recovery  of  the  balance  of  the  purchase 
money. 

"Ante,  |  148.  Garvin  v.  Cohen,  13  Rich.  L.  (S.  C.)I53  ;  Drew  v.  Towle, 
30  X.  II.  531,  27  N.  H.  412. 

n Glenn  v.  Thixtle,  1  Cush.  (Miss.)  42.  The  following  cases  are  cited  to 
the  same  proposition  in  Rawle  Covt.  (5th  ed.)  p.  573:  McDaniel  v.  Grace,  15 
Ark.  489;  Fi«her  v.  Salmon,  1  Cal.  413,  54  Am.  Dec.  297;  Slack  v.  McLagan, 
15  III.  242;  Dodd  v.  Toner,  3  Ind.  427;  Bradt  v.  Foster,  5  Clark  (Io.),  298; 
Hobein  v.  Dreweil,  20  Mo.  450;  Tibbetts  v.  Aver,  Hill  A  Den.  Supp.  (X.  Y.) 
174;  Blair  v.  Claxton,  4  N.  Y.  629,  but  few,  if  any  of  them,  will  be  found 
directly  in  point. 

'•Ante,  |  145.     Rawle  Covts.  for  Title  (5th  ed.),  |  132. 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.   507 

but  laid  by  the  board  of  supervisors  after  the  purchaser  buys  and 
receives  a  conveyance,  must  be  paid  by  the  vendor.  In  .other 
words,  the  person  owning  the  property  at  the  time  fixed  by  law  for 
determining  who  shall  be  taxed  therefor  as  owner,  must  pay  the 
tax.  If  the  purchaser  be  compelled  to  pay  them  to  prevent  a  tax 
sale,  the  covenant  of  warranty  is  constructively  broken,  and  the 
covenantee  may  recover  the  amount  so  expended  as  damages,77  or 
detain  the  purchase  money  to  that  extent. 

We  have  seen  that  a  covenant  of  warranty  is  broken  only  by  an 
eviction,  actual  or  constructive.  ^Nevertheless  it  has  been  held  that 
the  covenantee  cannot  be  compelled  to  pay  the  purchase  money 
while  a  suit  against  him  by  an  adverse  claimant  to  recover  the 
premises  is  still  pending  and  undetermined,78  nor  where  an  adverse 
claimant  is  in  possession  of  the  premises.79 

It  sometimes  happens  that  the  covenantee  does  not  get  the  num- 
ber of  acres  called  for  by  his  deed.  It  seems  that  if  the  boundaries 
set  forth  in  the  deed  do  not  contain  the  number  of  acres  mentioned 
there  is  no  -breach  of  the  covenant  of  warranty.  Consequently  the 
covenantee  cannot  at  law  detain  the  purchase  money.80  But  if  the 
boundaries  contain  the  full  number  of  acres  called  for,  and  there  be 

"Rundell  v.  Lakey,  40  N.  Y.  517.     See  ante,  §  150. 

78  Jaques  v.  Esler,  3  Gr.  Ch.  (N.  J.)  465.    See,  post,  ch.  26. 

79Pryse  v.  McGuire,  81  Ky.  608;  English  v.  Thomasson,  82  Ky.  280; 
Laevison  v.  Baird,  91  Ky.  204,  15  §.  W.  252. 

80  2  Warvelle  Vend.  839;  Rawle  Covts.  (5th  ed.)  §  298.  Ante,  §  135: 
Young  v.  Lofton,  (Ky.)  12  S.  W.  Rep.  1061;  Carter  v.  Beck,  40  Ala.  599. 
Compare  Beach  v.  Waddell,  4  Halst.  Ch.  (N.  J.)  308.  In  Koger  v.  Kane, 
reported  in  note  to  Long  v.  Israel,  9  Leigh  (Va.)  569,  CABEL,  J.  (dissenting), 
held  that  the  covenantee  was  entitled  to  detain  the  purchase  money  if  any 
deficiency  in  the  quantity  of  the  land  existed,  whether  arising  from  the  fact 
that  the  boundaries  did  not  contain  the  stipulated  qtiantity  or  that  a  portion 
of  the  land  so  contained  was  embraced  by  the  superior  title  of  others.  In 
Comegys  v.  Davidson,  154  Pa.  St.  534,  26  Atl.  Rep.  618,  where  the  contract 
had  been  executed  by  a  conveyance,  and  it  appeared  that  there  was  a  de- 
ficiency in  the  width  of  the  lot  conveyed,  the  court,  without  adverting  to  the 
presence  or  absence  of  covenants  for  title,  held  that  if  the  deficiency  in  the 
property  conveyed  was  so  serious  that  it  might  be  regarded  as  evidence  of 
imposition  or  fraud,  the  rule  Avas  to  allow  such  a  reduction  of  the  purchase 
money  as  will  compensate  the  purchaser  for  the  value  of  the  land  lost. 
Practically  this  is  administering  equitable  relief  in  an  action  for  the  pur- 
chase money.  In  Pennsylvania,  however,  there  is  no  separate  system  of 
equitable  procedure. 


508  MARKETABLE   TITLE   TO  REAL,   ESTATE. 

no  title  to  part  of  them,  and  the  covenantee  be  evicted  from  or 
unable  to  get  possession  of  that  part,  the  covenant  is  broken  and  he 
may  detain  the  purchase  money  to  that  extent.  If  the  boundaries 
set  forth  do  not  contain  the  specified  number  of  acres,  where  the 
sale  is  by  the  acre,  then  the  executed  contract  is  liable  to  rescission 
in  equity  on  the  ground  of  fraud  or  mistake.  It  has  been  held, 
however,  that  if  the  covenants  were  obviously  intended  to  secure  to 
the  purchaser  a  specific  number  of  acres  or  quantity  of  land,  he 
would  be  entitled  to  relief  upon  the  covenants  in  case  of  a 
deficiency.81 

§  188.  DISCHARGE  OF  INCTJMBRANCES.  If  the  purchaser  be 
compelled  to  pay  off  incumbrances  on  the  premises  he  becomes 
immediately  entitled  to  recover  substantial  damages  for  breach  of 
the  covenant  against  incumbrances,  and  may  recoup  the  damages  so 
incurred  in  an  ac-tion  for  the  purchase  money.82  If  the  deed  con- 

*  Leonard  v.  Austin,  2  How.   (Miss.)   888. 

"Xesbit  v.  Campbell,  5  Neb.  429;  Davis  v.  Bean,  114  Mass.  358.  This  case 
is  said  by  Mr.  Sedgwick  to  be  inconsistent  with  Bowley  v.  Holway,  124  Mass. 
305,  where  it  was  held  that  in  an  action  for  the  purchase  money  failure  of 
title  could  not  be  set  up  as  a  defense  by  way  of  recoupment  if  there  had  been 
no  eviction,  for  then  there  would  be  only  a  partial  failure  of  the  considera- 
tion. The  two  cases  would  seem  distinguishable  in  this,  that  the  defense  in 
the  first  case  was  more  in  the  nature  of  set-off  thton  recoupment,  for  the  sum 
paid  to  remove  the  inoumbrance  could  scarcely  be  termed  unliquidated  dam- 
ages. And.  further,  in  this,  that  in  the  second  case  there  had  been  no  breach 
of  the  covenant  of  warranty,  while  in  -the  first  case  the  covenant  had  been 
broken  and  actual  damages  incurred;  and  if  the  incumbrance  had  equalled 
the  purchase  money  in  amount  there  would  have  been  a  total  failure  of  the 
consideration.  Where  the  encumbrance  discharged  is  less  than  the  purchase 
money  the  case  would  stand  upon  much  the  same  ground  as  that  in  which 
recoupment  is  allowed  when  the  covenantee  is  evicted  from  a  part  only  of 
the  premises,  namely,  that  to  that  extent  there  w  a  complete  failure  of  the 
consideration.  See  3  Sedg.  Dam.  (Sth  ed.)  267,  208;  Owens  v.  Salter,  39 
Pa.  St.  211;  Kelly  v.  Low,  18  Me.  244;  Brooks  v.  Moody,  20  Pick.  (Mass.) 
475;  Baker  v.  Railsback,  4  Tnd.  633;  Small  v.  Rieves,  14  Ind.  103;  Holman  v. 
Creagmiles,  14  Ind.  177;  Bowen  v.  Thrall,  28  Vt.  382;  Delavergne  v.  Norris, 
7  Johns.  (N.  Y.)  357;  6  Am.  Dec.  281.  Schumann  v.  Knoebel.  27  III.  177, 
the  court  saying:  "The  pleas  allege  the  existence  of  a  certain  incumbrance 
by  mortgage,  which  the  defendant  had  to  pay  and  discharge,  and  thereby 
extinguish  the  incumhrance.  To  the  extent  then  of  this  incumbrance  there 
was  a  failure  of  consideration.  Morgan  v.  Smith,  11  111.  190;  Whisler  v. 
Hicki,  6  Bl.  (Ind.)  100.  33  Am.  Dec.  454;  Smith  v.  Acker,  5  Bl.  (Ind.)  541; 
Buell  v.  Tat*,  7  Bl.  (Ind.)  54;  Pomeroy  v.  Burnett,  8  BL  (Ind.)  142.  We 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.       509 

tains  a  covenant  of  warranty,  but  no  covenant  against  incum- 
brances,  the  same  rule  applies  if  the  money  was  paid  to  prevent  an 
eviction  by  the  incumbrancer.  An  eviction  consequent  upon  the 
foreclosure  of  an  incumbrance  is  as  much  a  breach  of  the  covenant 
of  warranty  as  an  eviction  by  one  claiming  under  paramount  title.83 
The  mere  existence  of  an  incumbrance  upon  the  premises,  which  is 
a  breach  of  the  covenant  against  incumbrances,  is  no  ground  upon 
which  to  detain  the  purchase  money;  for,  if  the  covenantee  were 
to  sue  for  the  breach  he  could  recover  only  nominal  damages  so  long 
as  he  had  sustained  no  actual  damage  from  the  incumbrance.84 
And  as  the  recoupment  of  -the  breach,  when  sued  for  the  purchase 

think,  too,  the  defendant,  under  the  pleadings,  might  have  recouped  th» 
amount  thus  paid.  Babcock  v.  Tria,  18  111.  420.  There  is  a  natural  equity 
as  to  claims  arising  out  of  the  same  transaction,  that  one  claim  should  com- 
pensate the  other,  and  that  the  balance  only  should  be  recovered.  The  dam- 
ages claimed  by  the  defendant  grew  out  of  the  contract  for  the  sale  of  the 
land,  and  present  a  plain  case  for  recouping  damages.  *  *  *  The  defend- 
ant should  have  been  allowed,  either  under  his  plea  of  partial  failure  of 
consideration,  or  on  the  principle  of  recoupment  under  the  other  pleas,  the 
amount  he  paid  to  extinguish  the  mortgage  set  out  in  his  plea,  and  the 
plaintiff  should  have  had  a  judgment  for  the  balance  only."  It  has  been  held 
that  a  purchaser  of  mortgaged  premises  taking  a  deed  subject  to  the  mort- 
gage, and  assuming  to  pay  the  mortgage,  is  estopped  to  contest  the  con- 
sideration and  validity  of  the  mortgage.  Parkinson  v.  Sherman,  74  N.  Y. 
92,  30  Am.  Dec.  268;  Ritter  v.  Phillips,  53  X.  Y.  586;  Thorp  v.  Keokuk  Coal 
Co.,  48  N.  Y.  253;  Freeman  v.  Auld,  44  N.  Y.  50;  Shadbolt  v.  Bassett,  1  Lans. 
(N.  Y.)  121;  Dahle  v.  Stakke,  12  N.  Dak.  325,  96  N.  W.  Rep.  353. 

84  Ante,  §  150.  Coleman  v.  Insurance  Co.,  26  Ky.  Law  Rep.  900,  82  S.  W. 
616.  In  Alden  v.  Parkhill,  18  Vt.  205,  it  was  held  that  a  purchaser,  taking 
a  deed  with  covenants  of  warranty,  oould  not.  in  an  action  for  the  purchase 
money,  show  under  the  general  issue  a  breach  of  the  covenant  against  incum- 
brances; but  that  he  might  set-off  the  amount  paid  by  him  to  remove  the 
incumbrance  in  order  to  prevent  an  eviction. 

M Jones  Mortg.,  §  500;  a  perspicuous  statement  of  the  rule  as  follows: 
"Where  the  grantee  in  a  warranty  deed,  conveying  premises  on  which  there 
is  a  prior  mortgage,  remains  in  the  undisturbed  possession  of  the  premises, 
and  the  mortgage  debt  is  unpaid  and  no  suit  has  been  brought  to  collect  it, 
or  foreclose  the  mortgage  or  to  evict  the  purchaser,  it  is  no  defense  to  a 
foreclosure  suit  against  him,  to  secure  the  purchase  money,  that  such  prior 
mortgage  is  an  outstanding  incumbrance,  unpaid  and  unsatisfied."  Mills 
v.  Saunders,  4  Neb.  190;  Pomeroy  v.  Burnett,  S  Bl.  (Ind.)  142;  Mitchell 
v.  Dibble,  14  Ind.  526;  Martin  v.  Foreman,  18  Ark.  249,  where  it  was  held 
that  an  unsatisfied  judgment,  binding  the  warranted  premises,  constituted 
no  defense  to  an  action  for  the  purchase  money.  Gager  v.  Edwards,  26 
111.  App.  490. 


«")10  MAKKKTABLK    T1TLK    TO    KKA1.    KS'fATE. 

money,  is  in  substance  a  cross-action  by  the  purchaser  on  the  cove- 
nant, it  devolves  on  him  to  show  that  he  has  discharged  the  incum- 
brance  or  has  been  evicted  by  the  incnmbrancer.85  Hence,  it  lias 
been  held  that  the  mere  existence  of  a  right  of  dower  in  the.  prom- 
isee, whether  inchoate  or  consummate,  is  no  defense  to  an  action 
for  the  purchase  money  if  the  purchaser  holds  under  a  conveyance 
with  covenant  against  incumbrances,  and  has  not  been  evicted  by 
the  dowress,  nor  paid  her  a  sum  in  gross  in  commutation  of  her 
dower  right.86  An  apparent  exception  to  the  rule  above  exists  in 
those  cases  in  which  the  incumbrance  exceeds  the  purchase  money, 
and  the  grantee  is  allowed  a  temporary  injunction  until  the  vendor 
pays  the  excess.87  It  is  to  be  observed  that  the  right  to  detain  the 
purchase  money  is  either  to  detain  it  permanently  in  case  of  an 
actual  loss  of  the  entire  estate  by  reason  of  a  paramount  title  in  a 
stranger,  or  to  detain  it  temporarily  until  an  objection  to  the  title 
is  removed.  The  purchaser  may  retain  so  much  of  the  purchase 
money  as  may  be  sufficient  to  secure  him  against  pecuniary  incum- 
brances on  the  land,  especially  when  the  grantor  is  insolvent,  and 
no  adequate  remedy  can  be  had  upon  his  covenants.88  If  a  cove- 
nantoe  pays  off  an  incumbrance  on  the  land  he  can  have  credit  only 
for  the  actual  amount  disbursed  for  that  purpose.  lie  cannot  buy 
up  the  lien  at  a  discount  and  have  the  benefit  of  its  face  value 
against  the  grantor.89  If  the  purchaser  accept  a  deed  from  a  third 
party  instead  of  the  vendor  he  cannot  recover  from  the  latter 
moneys  paid  in  removing  incumbrances.'0 

The  purchaser  takes  the  risk  of  the  validity  of  the  incumbrance 
which  he  discharges.  The  vendor  may  always  show  that  he  was 
not  bound  to  discharge  the  incumbrance,  from  some  illegality  in  the 
consideration,  or  other  cause.91  If  the  purchase  money  be  secured 

"Thurgood  v.  Sprinp,  130  Cal.  596,  73  Pur.  456;  liryan  v.  Swain,  56 
Cal.  618. 

••Whisler  v.  Hick*,  5  Blarkf.  (Iml.)  100;  33  Am.  Doc.  454;  Smith  v. 
Afkerman,  5  Blaokf.  (Ind.)  541. 

"Pout,  8$  332,  335. 

•Bowen  v.  Thrall,  28  Vt.  3S2,  citinjr  Tourville  v.  XaSsh,  3  P.  Wms.  307; 
Warren  v.  Stoddart  (Idaho),  59  Par.  Rep.  540. 

"McDowell  v.  Milroy,  6ft  111.  408.     Ante,  ?   130. 

••Herryford  v.  Turner,  67  Mo.  206. 

w  Norton  v.  Jarkmm,  5  Cal.  262. 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.   511 

by  trust  or  mortgage  which  the  vendor  is  proceeding  to  enforce, 
the  purchaser  can  have,  of  course,  no  means  of  availing  himself  of 
his  right  to  a  set-off  or  allowance  for  money  paid  in  removing 
incumbrances  which  should  have  been  discharged  by  the  vendor, 
except  by  way  of  injunction  to  prevent  the  sale.92  The  injunction 
would  be  denied,  it  is  apprehended,  unless  all  the  purchase  money 
had  been  paid,  except  so  much  as  may  have  been  applied  to  the 
incumbrance. 

As  the  duty  devolves  upon  the  covenantor  to  remove  incum- 
brances, the  covenantee  cannot  be  held  responsible  for  an  increase 
in  the  cost  and  charges  of  removal,  which  might  have  been  avoided 
by  prompt  action.  Thus,  where  a  tax  lien  might  have  been  re- 
moved at  a  cost  of  $14  by  the  covenantee,  but  on  account  of  a  for- 
feiture to  the  State  for  non-payment  in  due  time,  he  was  compelled 
to  pay  $150  to  redeem  the  forfeiture,  it  was  held  that  he  was  en- 
titled to  set  off  the  amount  so  paid  against  the  unpaid  purchase 
money.93 

§  189.  RULE  IN  TEXAS.  In  Texas  a  purchaser  who  has  ac- 
cepted a  conveyance  with  general  warranty,  may  resist  the  payment 
of  the  purchase  money  in  case  of  a  failure  of  the  title,  though 
there  has  been  no  eviction,  but  he  is  required  to  show  that  such 
failure  consists  of  an  indisputable  superior  outstanding  title  under 
which  he  is  liable  to  be  evicted,9*  and  that  he  accepted  the  convey- 

92  Post,  §  332. 

M  William  Farrel,  etc.,  Co.  v.  Deshon,.  65  Ark.  103,  44  S.  W.  Rep.  1036. 

"Cooper  v.  Singleton,  19  Tex.  260,  70  Am.  Dec.  333;  Tarpley  v.  Poage,  2 
Tex.  139;  Woodward  v.  Rogers,  20  Tex.  176;  Cook  v.  Jackson,  20  Tex.  209; 
Johnson  v.  Long,  27  Tex.  21;  Demaret  v.  Bennett,  29  Tex.  263;  Johnston  v. 
Powell,  34  Tex.  528;  Fisher  v.  Dow,  72  Tex.  432,  10  S.  W.  Rep.  455;  Haralson 
v.  Langford,  66  Tex.  Ill,  18  S.  W.  Rep.  339;  Groesbeck  v.  Harris,  82  Tex. 
411  (1891);  19  S.  W.  Rep.  850;  Hubert  v.  Giady,  59  Tex.  502;  Blanks  v. 
Ripley,  (Tex.  Civ.  App.)  27  S.  W.  Rep.  732;  Doughty  v.  Cottraux,  (Tex. 
Civ.  App.)  27  S.  W.  Rep.  914;  McLean  v.  Connerton  (Tex.  Civ.  App.)  78 
S.  W.  Rep.  238;  Wilson  v.  Moore,  (Tex.  Civ.  App.)  85  S.  W.  Rep.  25;  Adams 
v.  Jordan,  (Tex.  Civ.  App.)  136  S.  W.  490.  He  must  show  a  reasonable 
certainty  of  eviction.  Price  v.  Blount,  41  Tex.  472.  He  may  resist  the 
payment  of  the  purchase  money  without  showing  a  liability  to  eviction 
where  fraud  was  used  to  induce  him  to  accept  the  title.  Norris  v.  Evans, 
60  Tex.  83.  The  Texas  doctrine  is  thus  stated  in  Cooper  v.  Singleton,  19 
Tex.  267,  70  Am.  Dec.  333,  the  leading  case  in  that  State:  "The  difference 
between  the  liabilities  of  the  vendee  under  an  executory  and  executed 


512  MARKETABLE  TITLE   TO   REAL   ESTATE. 

ance  in  ignorance  of  the  defective  title.95  He  will  be  charged  with 
notice  of  defects  which  lay  in  the  vendor's  chain  of  title  unless  his 

contract  is  thi»:  That  in  the  former  he  should  be  relieved  by  showing 
defect  of  title,  unless  on  proof  by  the  vendor  that  this  was  known  at  the 
sale,  and  it  was  understood  that  such  title  should  be  taken  as  the  vendor 
could  give.  In  the  latter  the  vendee  should  establish,  beyond  doubt,  that  the 
title  was  a  failure  in  whole  or  in  part;  that  there  was  danger  of  eviction, 
and  also  «uch  circumstances  as  would  prima  facie  repel  the  presumption  that 
at  the  time  of  the  purchase  he  knew  and  intended  to  run  the  risk  of  the 
defect."  So  in  Demaret  v.  Bennett,  29  Tex.  268,  it  is  said:  "A  purchaser 
who  has  pone  into  possession  under  a  deed  with  warranty,  without  any  notice 
of  a  defect  in  the  title,  may  resist  the  payment  of  the  purchase  money 
by  showing  his  title  to  be  worthless,  and  the  existence  of  a  superior  outstand- 
ing title  by  actual  ouster,  or  what  is  tantamount  to  the  same,  an  indisputable 
superior  outstanding  title,  and  that  he  is  liable  to  be  evicted.  He  must  return 
the  possession  of  the  premises,  and  the  deed  for  cancellation.  In  Preston 
v.  Breedlove,  45  Tex.  47,  it  was  held  that  a  party  in  possession  claiming 
under  complete  and  recorded  conveyances,  could  not  be  affected  by  a  decree 
of  foreclosure  against  a  remote  vendor  alone,  and  that  a  sale  thereunder 
being  ineffectual  to  cut  off  his  defenses  against  the  lien,  he  could  not  set 
up  such  sale  as  a  defense  to  an  action  against  him  for  the  purchase  money, 
citing  Mulls  v.  Traylor,  36  Tex.  7,  and  other  cases.  It  was  also  held  in  this 
case  that  the  fact  that  suit  had  been  brought  against  the  maker  of  a  note, 
secured  by  vendor's  lien,  to  recover  the  land,  was  not  sufficient  evidence  of 
failure  of  title  to  enable  him  to  detain  the  purchase  money. 

"Brock  v.  Southwick,  10  Tex.  65;  Demaret  v.  Bennett,  29  Tex.  263;  Bryan 
v.  Johnson,  39  Tex.  31;  Price  v.  Blount,  41  Tex.  472;  Herron  v.  De  Bard,  24 
Tex.  181;  May  v.  Ivie,  68  Tex.  379;  4  S.  W.  Rep.  641;  Twohig  v.  Brown,  85 
Tex.  51;  Fagan  v.  McWhirter,  71  Tex.  567,  9  S.  W.  Rep.  677;  Moore  v. 
Vogel  (Tex.  Civ.  App.),  54  S.  W.  Rep.  1061;  Knight  v.  Coleman,  (Tex.  Civ. 
App.),  51  S.  W.  Rep.  258;  Frantz  v.  Masterson,  (Tex.  Civ.  App.)  133  S.  W. 
740.  Upon  this  point  the  leading  case  is  Brock  v.  Southwick,  10  Tex.  65. 
It  i«  there  said:  "The  proof  shows  a  contract  of  purchase  and  a  con- 
veyance subsequently  executed  with  warranty  of  title  and  possession.  The 
defendant  accepted  the  conveyance  with  a  knowledge  of  the  defect  of  title. 
He  was  put  upon  inquiry  and  was  informed  that  the  title  was  defective. 
He  nevertheless  made  the  purchase  and  accepted  the  conveyance  without 
objection,  relying,  doubtless,  upon  his  chances  to  perfect  the  title,  or  upon 
the  security  afforded  by  the  covenants  in  hia  deed  of  conveyance.  It  is 
fair  to  conclude  that  he  considered  his  purchase  worth,  or  that  he  was 
willing  to  give,  the  stipulated  price  notwithstanding  the  defect  of  title; 
or  that  he  chose  to  take  the  chances  as  to  the  title,  and  have  his  recourse 
upon  the  covenants  in  his  deeds  in  case  of  eviction."  The  purchaser's 
pleadings  mufft  aver  such  want  of  notice.  Carson  v.  Kelly,  57  Tex.  379. 
So  in  the  recent  cane  of  Xeyland  v.  Neyland,  70  Tex.  24,  7  S.  W.  Rep.  651. 
The  purchaser  holding  under  a  deed  from  three  grantors  with  general 
warranty,  resisted  payment  on  the  ground  that  a  fourth  person  owning  an 
equal  interest  in  the  property  had  not  been  procured  to  execute  the  con- 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.       513 

attention  was  diverted  from  them  by  the  artifices  of  the  vendor.96 
A  purchaser  availing  himself  of  this  defense  must  surrender  pos- 
session to  the  grantor  and  give  up  the  deed  to  be  canceled,97  and  an 
answer  setting  up  such  a  defense  and  containing  no  offer  to  recon- 
vey  is  insufficient.98  But  he  may,  nevertheless,  surrender  the  pos- 
session to  an  adverse  claimant,  and  detain  the  purchase  money 
though  he  has  thereby  incapacitated  himself  from  placing  the  ven- 
dor in  stain  quo,  provided  he  can  show  absolutely  that  the  vendor 
had  no  title,  or  that  he  did  not  have  such  title  as  he  professed  to 
sell.99  He  may  also  buy  up  the  rights  of  an  adverse  claimant  to 
prevent  inevitable  eviction,1  but  this,  however,  is  held  to  be  equiva- 
lent to  an  actual  eviction.2  It  may  be  observed  that  in  this  State, 
though  a  conveyance  has  been  executed  to  the  purchaser,  the  con- 
tract is  held  to  be  executory  so  long  as>  the  purchase  money  remains 
unpaid.3 

veyance  us  agreed.  The  court  said:  "The  plea  does  not  aver  a  want  of 
knowledge  of  defect  of  title  at  the  time  of  the  purchase,  nor  does  it  state 
when  the  defect  came  to  his  knowledge.  He  alleges  that  the  appellee  is 
insolvent,  but  does  not  allege  that  the  other  two  vendors  are  insolvent.  The 
circumstances  recited  in  the  plea  indicate  that  he  was  as  well  advised  of 
the  defect  in.  the  title  and  the  insolvency  of  the  appellee  at  the  time  he 
purchased  as  he  was  at  the  time  he  executed  the  note.  He  admits  that  he 
is  in  possession  of  the  land  under  a  deed  with  warranty.  He  does  not  allege 
that  there  were  fraudulent  representations  or  even  concealment  on  the  part 
of  his  vendors  at  the  time  he  purchased.  He  certainly  should  aver  that  he 
did  not  know  of  the  defect  at  the  time  of  his  purchase,  and  also  allege  the 
insolvency  of  all  of  his  vendors.  Being  in  possession  under  a  deed  with 
covenant  of  warranty,  appellant  cannot  be  released  from  payment  of  the 
purchase  money  unless  there  was  fraud  on  the  part  of  his  vendors  at  or 
before  the  sale,  or  in  case  of  defect  not  known  to  him  at  the  time  he  pur- 
chased." 

96Haralson  v.  Langford,  66  Tex.  113,  citing  Woodward  v.  Rogers,  20  Tex. 
176,  where,  however,  the  point  does  not  "seem  to  have  been  distinctly  ruled. 

97Demaret  v.  Bennett,  29  Tex.  263;  Haralson  v.  Langford,  66  Tex.  Ill,  18 
S.  W.  Eep.  339 ;  Ogburn  v.  Whitlow,  80  Tex.  239,  15  S.  W.  Rep.  807,  citing 
Smith  v.  Nolan,  21  Tex.  497. 

98  Ogburn  v.  Whitlow,  80  Tex.  239,  15  S.  W.  Rep.  807. 

09  Fisher  v.  Dow,  72  Tex.  432,  10  S.  W.  Rep.  455. 

1  Clark  v.  Mumford,  62  Tex.  531. 

2Rawle  Covts.   (5th  ed.)    §  146. 

3  Kennedy  v.  Embry,  72  Tex.  387;  10  S.  W.  Rep.  88;  Ogburn  v.  Whitlow, 
80  Tex.  241;  15  S.  W.  Rep.  807;  Lanier  v.  Forest,  81  Tex.  189,  16  S.  W. 
Rep.  994. 

65 


514  MARKETABLE  TITLE  TO   REAL   ESTATE. 

If  the  purchaser  take  a  conveyance  without  covenants  for  title, 
the  rule  in  Texas  is  the  same  as  that  which  generally  prevails 
elsewhere,  namely,  that  in  the  absence  of  fraud  he  is  without  relief 
in  case  the  title  fails.4 

It  is  not  necessary  that  the  purchaser  should  make  the  holder  of 
an  outstanding  paramount  title  a  party  to  the  proceeding  in  order 
to  avail  himself  of  the  existence  of  such  title  as  a  defense  to  an 
action  for  the  purchase  money.5  But  it  is  not  a  sufficient  defense 
to  show  merely  that  at  one  time  the  title  was  outstanding  in  a 
stranger;  he  must  show  also  that  such  title  has  never  been  acquired 
by  the  vendor.'  It  seems  that  in  this  State  the  existence  of  a  valid 
incumbrance  upon  the  premises,  is,  equally  with  failure  of  the 
title,  a  ground  for  detaining  the  purchase  money,  provided  the 
conveyance  with  warranty  was  accepted  without  notice  of  the 
incumbrance.T 

§  190.  BTJLE  IN  SOUTH  CAROLINA.  In  South  Carolina  a 
purchaser  who  has  taken  a  conveyance  with  general  warranty, 
which  in  the  State  embraces  the  five  common  law  covenants,8  may, 
for  any  defect  of  title  embraced  by  those  covenants,9  defend  an 
action  at  law  for  the  purchase  money,  though  there  has  been  no 
eviction,  if  he  can  show  that  the  defect  consists  of  an  outstanding 
paramount  title  to  which  he  must  inevitably  yield.1*  But  he  can- 

4  Rhode  v.  Alley,  27  Tex.  445;  Baldwin  v.  Drew,  CTex.  Civ.  App.)  180 
R.  W.  614.  But  it  has  been  recently  there  held  that  an  ignorant  man  who 
could  neither  read  nor  write  and  who  relied  upon  the  vendor's  representa- 
tions, made  in  good  faith,  that  the  title  was  good,  when  in  fact  it  was  bail, 
was  entitled  to  a  rescission  of  tho  contract  and  return  of  the  purchase  money, 
although  he  had  taken  a  conveyance  with  special  warranty  only.  Fahy  v. 
Kaies,  (Tex.  Civ.  App.)  181  S.  W.  782. 

•Fisher  v.  Abney,  89  Tex.  416,  9  $.  W.  Rep.  321. 

•Haralson  v.  Langford,  06  Tex.  Ill,  18  S.  W.  Rep.  339. 

TTnrlton  v.  Daily.  55  Tex.  92. 

•Kvaiw  v.  MeLuca*,  12  S.  C.  56;  Txwly  v.  Dowie,  24  S.  C.  197,  3  S.  F. 
Rep.  199. 

•Rogers  v.  Horn,  6  Rich.  Kq.  (S.  C.)  302;  Evans  v.  Dcnby,  2  Spears 
(S.  C.),  10,  13  Am.  Dec.  350. 

"Thompson  v.  McCord,  2  Buy  (S.  C.),  76;  Taylor  v.  Fulmore,  1  Rich. 
Kq.  (S.  C.)  52;  Sumter  v.  Welsh.  1  Brev.  (8.  C.)  539;  Johns  v.  Xixon,  2 
Brev.  (8.  C.)  472;  Van  Lew  v.  Parr,  2  Rich.  Fq.  (8.  C.)  340,  and  Rawlo 
Covts.  569,  n.,  where  it  is  said:  "Since  Furman  v.  Kltnore  (A.  D.  1819, 
reported  in  a  note  to  Mackey  v.  Collins,  2  Nott  &  McC.  189),  it  has  been 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.   515 

not,  in  such  a  case,  go  into  a  court  of  equity  and  obtain  a  rescission 
of  the  contract  so  long  as  he  remains  in  undisturbed  possession  of 

the  settled  law  of  South  Carolina  that  a  covenant  of  warranty  possessed 
also  the  properties  of  a  covenant  for  seisin,  and  an  eviction  was  not,  there- 
fore, considered  necessary  to  its  breach.  Hence,  it  was  held  that  if  a  pur- 
chaser when  sued  for  the  purchase  price,  could  establish  to  the  satisfaction 
of  the  jury  that  he  took  nothing  by  his  purchase,  and  that  he  would  be 
ousted  by  the  paramount  title,  they  might  find  a  verdict  for  the  defendant, 
not  on  the  ground  that  the  failure  of  title  was  a  rescission  of  the  contract, 
but  because  the  damages  on  the  covenants  were  exactly  equal  to  the  purchase 
money  andl  interest,  and  it  followed  that  where  a  portion  of  the  land  was 
so  covered  by  paramount  title  damages  could  be  assessed  pro  tanto,  and  such 
is  the  law  at  the  present  day,"  citing  Farrow  v.  Mays,  1  Nott  &  McC.  312; 
Hunter  v.  Graham,  1  Hill,  370;  Van  Lew  v.  Parr,  2  Rich.  Eq.  337;  Jeter 
v.  Glenn,  9  Rich.  L.  378.  It  isi  worth  while  to  consider  how  far  the  rule 
thus  stated  by  Mr.  Rawle  has  been  modified  by  more  recent  cases.  In  Lessly 
v.  Bowie,  27  S.  C.  193,  3  S.  E.  Rep.  199,  which  was  an  action  to  foreclose 
a  purchase-money  mortgage,  a  purchaser  with  general  warranty  resisted  the 
payment  of  the  purchase  money  on  the  ground  of  an  outstanding  paramount 
title  in  a  stranger.  'Not  having  been  evicted  or  disturbed  in  the  possession 
it  was  held  that  he  was  not  entitled  to  relief.  The  court  after  observing: 
"  There  has  been  much  discussion  in  our  courts  as  to  whether  a  purchaser  of 
land!  who  is  in  possession  under  general  warranty  may  defeat  an  action  for 
the  purchase  money  by  showing  paramount  outstanding  title  in  another 
before  he  has  been  actually  evicted,"  continued:  "It  certainly  is  remarkable 
that  no  case  can  be  found  in  our  reports  in  which  damages  to  the  extent  of 
the  purchase  money  have  been  recovered  for  a  mere  technical  breach  of  the 
covenant  of  seisin  alone,  without  actual  damage  sustained,  or  eviction. 
Indeed,  the  distinguished  Chancellor  JOHNSTON,  in  delivering  the  judgment 
of  the  old  Court  of  Errors,  in  the  case  of  Van  Lew  v.  Parr,  2  Rich.  Eq. 
(S.  C.)  340  (1846),  said:  'Arguments  were  drawn  by  counsel  from  a  very 
extensive  and  critical  examination  of  the  laws  and  decisions  of  this  State  to 
show  that  as  the  law  courts  in  certain  cases  allow  damages  upon  breach  of  the 
covenants  of  deeds  conveying  lands,  where  there  has  been  no  previous  eviction, 
equity  should  rescind  the  contract  where  the  remedy  at  law  is  incomplete. 
The  law  courts  seem  to  have  been  struggling  for  years  to  get  clear 
of  the  early  decisions  allowing  recoveries  on  the  ground  of  failure  of  title 
without  eviction,  and  they  appear  to  have  settled,  at  least  in  this  result, 
that  in  actions  brought  for  the  purchase  money,  the  purchaser  may  make  a 
clearly  subsisting  outstanding  title  the  ground  of  abatement  for  the  contract 
value  of  such  part  of  the  premises  as  it  may  cover.  It  has  been  proposed 
as  a  just  inference  from  this  that  where,  from  the  remoteness  or  contingency 
of  the  outstanding  title,  law  cannot  give  damages,  equity  should1  interfere 
and  rescind  the  contract.  But  apart  from  the  incompetency  of  a  court  of 
equity  to  try  the  validity  of  the  outstanding  title,  is  it  not  obvious  that 
the  remoteness  and  contingency  which  renders  it  inapplicable  at  law,  must 
necessarily  make  it  equally  uncertain  what  degree  of  importance  should  be 


516  MARKETABLE   TITLE   TO    KKAL   ESTATE. 

the  premises,  in  the  absence  of  fraud  or  insolvency  on  the  part  of 
the  vendor.11     Judgment   liens  binding  the  warranted  premises 

attached  to  it  as  a  ground  for  rescission  in  equity?  If  the  defect  of  title 
be  such  as  authorizes  a  court  of  law  to  interfere,  be  it  so.  That  is  one  of 
the  advantages  of  his  covenant  to  which  equity  leaves  the  purchaser.  But 
if  it  be  of  such  a  nature  that  law  declares  him  entitled  to  no  relief  in  virtue 
of  the  security  he  has  himself  selected,  as  was  the  case  in  this  instance,  it 
seems  a  strained  inference  that  the  declaration  entitles  him  to  relief  else- 
where. But  without  reopening  the  argument,  we  think  the  question  has  been 
finally  settled  by  the  more  recent  and  well-considered  cases,  which  concur  in 
holding  that,  while  a  purchaser  of  land  remains  in  quiet  possession  thereof 
he  cannot  sustain  a  bill  for  a  rescission  or  abatement  of  price  on  the  ground 
of  an  outstanding  title,  unless  on  the  score  of  fraud.'"  See,  also,  Childa 
v.  Alexander,  22  S.  C.  169  (1884);  Bethune  v.  McDonald,  35  S.  C.  88 
(1891)  ;  14  S.  E.  Rep.  674;  Munro  v.  Long,  35  S.  C.  354  (1891)  ;  15  S.  E. 
Rep.  553,  each  of  which  was  an  action  to  foreclose  a  purchase-money  mort- 
gage. In  Munro  v.  Long,  supra,  it  was  said:  "It  will  be  observed  that  this 
is  not  a  case  for  the  enforcement  of  an  executory  contract  of  sale,  but  it  is 
an  action  for  the  purchase  money  of  the  property  sold,  of  which  the  party 
is  in  the  undisturbed,  and,  so  far  as  the  testimony  shows,  the  unchallenged 
possession."  In  Gray  v.  Handkisson,  1  Bay  (S.  C. ),  278,  it  was  held  that 
the.  purchaser  was  entitled  to  a  rescission  of  an  executed  contract  in  case  of 
an  outstanding  paramount  title,  though  he  had  been  evicted,  but  this  case 
and  those  which  follow  it  were  subsequently  disapproved  in  Johnson  v. 
Purvis,  1  Hill  (S.  C. ),  32<i,  and  the  rule  established  that  the  purchaser  was 
entitled  to  an  abatement  of  the  purchase  money  to  the  extent  of  the  out- 
standing title,  but  not  to  a  rescission  of  the  contract.  See,  also,  Van  Lew 
v.  Parr,  2  Rich.  Eq.  (S.  C.)  337;  Westbrook  v.  McMillan,  1  Bailey  (S.  C.), 
259;  Bordeaux  v.  Carr,  1  Bailey  (S.  C.),  250;  Carter  v.  Carter,  1  Bailey 
(S.  C.),  217.  In  Poyas  v.  Wilkins,  12  Rich.  (S.  C.)  420,  it  appeared  that 
part  of  the  premises  purchased  was,  at  the  time  of  pun-liase,  in  possession 
of  a  third  person  claiming  under  a  prior  conveyance,  which  conveyance  did 
not  in  fact  include  the  premises  in  dispute,  and  that  such  third  person  had 
acquired  title  thereto  by  adverse  possession,  without  fault  on  the  part  of 
the  vendor.  It  was  held  that  these  facts  constituted  no  defense-  to  an  action 
fur  the  punhasu  money. 

11  Whit  worth  v.  Stuckey,  1  Rich.  Eq.  (S.  C.),  408,  the  leading  ca«e,  citing 
and  approving  Bumpu*  v.  Plainer,  1  Johns.  Ch,  (N.  Y.)  213;  Van  Lew  v. 
Parr,  2  Rich.  Eq.  (S.  C.)  3.M7;  Maner  v.  Washington,  3  Strohh.  Kq.  (S.  C.I 
171;  Kebler  v.  Cureton,  Rich.  Eq.  Ca*.  (8.  C.)  143;  Giihun  v.  Uriggs.  Rich. 
Eq.  CM.  (S.  C.)  143;  Evans  v.  McLucas,  12  S.  C.  66;  Lvsftly  v.  Bowie,  27 
S.  C.  193  (1887);  3  S.  E.  Rep.  190;  Childs  v.  Alexander,  22  S.  C.  169 
(1884)  ;  Bethune  v.  McIXmald,  35  S.  C.  88  (1891)  ;  14  8.  E.  Rep.  674;  Munro 
v.  Long,  35  8.  G.  354  (1891)  ;  15  8.  E.  Rep.  553;  Means  v.  Briclcnell,  2  Hill 
(S.  C.),  143;  Abcrcrombie  v.  Owings,  2  Rich.  L.  127.  Purchaiwr  taking  a 
warranty  deed  with  knowledge  of  an  outstanding  dower  int«rc(it  in  the 
vendor's  wife,  cannot  have  an  abatement  of  the  purchase  money  unless  he 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.   517 

constitute  no  ground  for  detaining  the  purchase  money,  unless  the 
purchaser  has  discharged  them.12 

The  law  courts  in  this  State  adopt  the  civil  law  rule  of  implied 
warranty  in  the  sale  and  conveyance  of  lands.  Where,  however, 
the  sale  is  hy  a  sheriff,  the  common-law  maxim  caveat  emptor 
applies,  and  the  purchaser  must  pay  the  purchase  money,  though 
the  title  completely  fails.  The  same  exception  will  extend,  it  is 
apprehended,  to  all  sales  made  in  a  representative  or  ministerial 
capacity.13 

§  191.  PLEADINGS.  The  defendant  in  an  action  for  the  pur- 
chase money  of  lands,  setting  up  a  breach  of  the  covenants  in  his 
deed  as  a  defense,  must  file  with  his  pleadings  the  original  or  a 
copy  of  that  deed,14  or  set  out  the  same,  or  the  essential  parts 
thereof,  in  the  pleadings.15  When  the  purchaser  seeks  to  detain 
the  purchase  money,  he  must  not  only  allege  a  failure  of  the  title, 
but  he  must  show  a  breach  of  covenant  or  fraud  on  the  part  of  the 
vendor.  A  mere  averment  that  the  title  has  failed  is  insufficient.16 
If  the  purchaser  intends  to  rely  on  a  breach  of  the  covenants  for 
title  as  a  defense  to  an  action  for  the  purchase  money,  his  plead- 
ings must  aver  the  existence  of  the  covenants.  Thu3,  in  an  action 
to  foreclose  a  purchase  money  mortgage,  an  answer  that  the  defend- 
ant has  been  compelled  to  pay  off  liens  on  the  premises,  without 
showing  that  the  conveyance  to  him  contained  a  covenant  against 
incumbrances,  was  held  bad.  Inasmuch  as  his  plea  is  virtually  a 
cross-action  upon  the  warranty,  it  should  contain  the  same  aver- 
ments as  would  a  declaration  upon  the  covenant.17  The  purchaser 
may  'avail  himself  of  a  defective  title  as  a  defense  to  an  action  for 
the  purchase  money,  without  averring  that  he  was  ignorant  of  the 

has  extinguished  the  dower  interest,  or  has  been  evicted  thereunder.  Colemaa 
v.  Whittle,  79  S.  C.  212,  60  S.  E.  523,  128  Am.  St.  Rep.  841. 

"Gourdine  v.  Fludd,  Harp.  L.    (S.  C.)    232. 

"Davis  v.  Murray,  2  Const.  Rep.  (S.  C.)  143,  12  Am.  Dec.  661;  Herhemont 
V.  Sharp,  2  McCord  L.  (S.  C.)  265. 

14  Starkey  v.  Neese,  30  Ind.  222 ;  Patton  v.  Camplin,  63  Ind.  512. 

"In  Howard  v.  Randolph,  73  Tex.  454,  11  S.  W.  Rep.  495,  failure  to 
describe  the  instrument  containing  the  warranty  was  held  fatal. 

M  GrantlancL^r.  Wight,  5  Munf.  (Va.)  295;  Moss  v.  Davidson,  1  Sm.  &  M. 
(Miss.)  112.;  Laughery  v.  McLean,  14  Ind.  106. 

17  Jenkinson  v.  Ewing,  17  Ind.  505.    Ante,  §  176. 


518  MARKETABLE   TITLE   TO   KEAL   ESTATE. 

defects  at  the  time  of  the  sale.  It  is  for  the  plaintiff  to  reply  and 
prove  knowledge  of  the  condition  of  the  title  by  the  defendant. ls 
§  192.  RESUME.  From  the  principles  discussed  in  the  fore- 
going pages  it  would  seem  to  follow,  that  if  the  covenantee  was 
never  able  to  get  possession  of  the  land,  the  possession  and  para- 
mount title  being  in  another,  there  would  be  a  total  failure  of  the 
consideration,  which  he  might  plead,  even  at  common  law,  as  an 
absolute  bar  to  an  action  for  the  purchase  money.  If,  on  the  other 
Land,  he  got  possession  and  was  afterwards  evicted  by  the  real 
owner,  he  would,  at  common  law,  be  compelled  to  pay  the  purchase 
money  and  look  to  his  covenants  for  redress ;  while  in  the  Ameri- 
can States  he  would  be  permitted  to  recoup,  in  an  action  for  the 
purchase  money,  the  damages  sustained  from  the  plaintiff's  breach 
of  covenant;  or,  by  statute,  to  avail  himself  of  that  defense  by 
special  plea  in  the  nature  of  a  plea  of  set-off.  And,  lastly,  if  the 
defendant  was  in  possession  under  a  conveyance  with  covenants  of 
warranty,  for  quiet  enjoyment,  or  against  incumbrances,  and  there 
had  been  no  such  breach  of  these  covenants  as  to  give  him  a  present 
right  to  recover  substantial  damages  against  the  plaintiff,  the  ab- 
solute failure  of  the  title,  or  the  existence  of  an  incumbrance  on 
the  premises,  could  not  be  availed  of  as  a  defense  to  an  action  for 
the  purchase  money,  whether  by  way  of  recoupment,  statutory 
set-off,  counterclaim  or  otherwise. 

The  question  whether  a  grantee  may  detain  the  unpaid  purchase 
money  upon  a  breach  of  the  covenant  of  seizin,  on  condition  that 
he  surrender  the  premises  to  the  grantor,  is  discussed  in  a  subse- 
quent part  of  this  work.19 

"  Taul  v.  Bradford,  20  Tex.  264 ;  Hurt  v.  McReynolds,  20  Tex.  595. 
M  Post,  ch.  26. 

7 


OF  AFFIRMANCE  OF  THE  CONTRACT  BY  PROCEEDINGS  IN  EQUITY. 

CHAPTER  XVII. 

SPECIFIC  PERFORMANCE  OF  EXECUTORY  CONTRACTS  AT  THE  SUIT 
OF  THE  PURCHASER. 

IN  GENERAL.     §    193. 

PAYMENT   OF   THE  PURCHASE  MONEY  AS   CONDITION  PRECE- 

DENT.    §    194. 

LACHES  OF  PURCHASER.     §    195. 
DAMAGES  IN  EQUITY.     §    196. 

§  193.  IN  GENERAL.  We  have  thus  far  considered  the  rem- 
edies of  the  purchaser  of  lands  in  affirmance  of  the  contract  by 
action  at  law  where  the  title  has  failed,  both  where  the  contract  is 
executory  and  where  it  has  been  executed  by  the  delivery  and 
acceptance  of  a  conveyance.  We  proceed  now  to  consider  the  rem- 
edies of  the  purchaser  in  affirmance,  of  the  contract  by  proceedings 
in  equity,  and  such  rights  of  the  vendor  as  are  incidental  to  those 
remedies.  We  shall  consider  the  subject  under  the  general  head, 
"  Specific  performance  of  executory  contracts  at  the  suit  of  the 
purchaser  ;  "  and  then  under  the  subdivisions,  "  The  right  of  the 
purchaser  to  take  the  title  with  compensation  for  defects  ;  "  l  and 
"  The  right  of  the  purchaser  to  perfect  the  title,  and  to  require 
a  conveyance  from  the  vendor."2 

A  purchaser  of  a  defective  title  may,  where  the  contract  has 
been  executed  by  a  conveyance  with  covenants  for  title,  invoke  the 
aid  of  a  court  of  equity  to  compel  the  specific  performance  of  a 
covenant  for  further  assurance,  or  to  require  the  grantor  to  remove 
an  incumbrance  from  the  premises.3  If  the  contract  is  executory 
he  has  his  election  either  to  proceed  at  law  to  recover  damages 
for  a  breach  of  the  contract,  or  to  recover  back  the  purchase  money, 
or  to  proceed  in  equity  for  a  specific  performance  of  the  contract, 
with  compensation  for  defects.4  But  the  greater  number  of  suits 


ch.  18. 
a  Post,  ch.  19. 

•Rawle  Covts.  (5th  ed.)   §§  104,  362;  Sugd.  Vend.  (14th  ed.)  613. 
4  2  Story  Eq.  Jur.  §   779;   Bispham's  Eq.    (3d  ed.)    §  380;  Fry  Sp.  Perf. 
(3d  Am.  ed.)    §  }174. 

[519] 


520  MAKKETABLE   TITLE    TO   REAL    ESTATE. 

by  the  purchaser  for  the  specific  performance  of  the  contract  are 
instances  in  which  the  vendor,  having  a  perfect  title,  wrongfully 
and  wilfully  refuses  to  convey.  If  the  vendor  has  no  title  or  a 
had  title,  the  court  will  not,  as  we  shall  presently  see,  compel  him 
to  execute  a  conveyance.  Ilence,  it  will  be  found  that  the  pro- 
ceedings of  the  purchaser  in  equity  in  affirmance  of  the  contract, 
where  the  title  is  defective,  consist  chiefly  of  cases  in  which  he 
insists  upon  the  right  to  apply  the  purchase  money  to  the  dis- 
charge of  incumbrances  upon  the  estate,  or  to  the  removal  of  objec- 
tions to  the  title,  or  where  he  himself  has  so  applied  the  purchase 
money  and  seeks  the  sanction  of  a  court  of  equity;  or  where  he 
asks  that  the  vendor  be  compelled  to  discharge  an  incumbrance 
on  the  premises,  or  to  procure  a  release  from  some  one  claiming 
an  interest  therein.5 

The  purchaser  may,  if  he  chooses,  waive  his  objections  to  the 
title  and  insist  upon  specific  performance  by  the  vendor.' 

A  court  of  equity  will  not  compel  the  vendor  to  execute  a  con- 
veyance of  the  premises  if  he  have  no  title,  and  cannot  obtain  it 
by  ordinary  process  of  law  or  equity,  for  that  would  be  a  vain  and 
useless  act.7  Neither  will  specific  performance  be  decreed  if  the 

••In  Gotthelf  v.  Stranahan,  138  X!  Y.  345,  24  N.  E.  Rep.  286,  it  was  held 
ih at  an  agreement  to  convey  free  from  all  incumbrane.es  by  warranty  deed, 
dM  not  require  the  vendor  to  satisfy  assessments  for  "contemplated  improve- 
ments," which  the  city*  might  abandon,  but  that  he  must  remove  an  assess- 
ment made  between  the  date  of  the  contract  and  the  time  fixed  for  the 
conveyance,  for  a  local  improvement  riade  before  the  contract  was  entered 
into.  If  the  vendor  agree  to  pay  all  taxes  accruing  before  completion  of 
the  contract,  and  fail  so  to  do,  the  purchaser  may  maintain  an  action  for 
specific  performance,  and  is  not  confined  to  an  action  at  law  on  the  agree- 
ment. Stone  v.  Lord,  8ft  X.  Y.  00. 

•Opgoshovitz  v.  Wnrije*.  203  Mich.  CR4,  169  X.  W.  820,  although  he  may 
have  previously  refused  to  perform  and  demanded  the  return  of  his  deposit. 
Wittenberg  v.  Groves,  (Tex.)  208  S.  W.  901.  If  he  fails  to  establish  an 
outstanding  title,  which  he  has  acquired,  against  the  vendor,  he  cannot  after- 
wards elect  to  take  such  title  as  the  vendor  has.  Wittenberg  v.  Groves, 
(Tex.)  208  S.  W.  901. 

M  Sugd.  Vend.  (Sth  Am.  ed.)  329  (217);  Adams  Eq.  m,  p.  81 ;  Crop  v. 
Norton.  2  Atk.  74;  Cornwall  v.  Williams,  Col.  P.  C.  390:  Bonnet  Col.  v. 
Gary,  3  Bra.  C.  C.  390;  Tendring  v.  Ixwulon,  2,  Eq.  Cas.  Abr.  680;  Bryan  v. 
Lewia,  1  Moo.  &  Ray,  3S6;  Snell  v.  Mitchell,  65  Me.  48;  Smith  v.  Kelly,  66 
Me.  64;  Hurley  v.  Brown,  98  Mass.  547;  Pack  v.  Gaithor,  73  X.  C.  95; 


SPECIFIC     PERFORMANCE     OF     EXECUTORY     CONTRACTS.       521 

equitable  title  is  in  a  stranger,  of  whose  rights  the  complainant 
had  notice  when  he  entered  into  the  contract.8  He  cannot  be 
placed  in  a  better  position  than  his  vendor.  On  the  contrary,  if 
he  took  a  conveyance  with  actual  notice  that  the  equitable  title 
was  in  a  stranger,  he  would  'himself  be  compelled  to  convey  to  him, 
for  in  such  a  case  he  would  be  regarded  as  a  mere  trustee  of  the 
legal  title.9 

The  general  rule  is  that  specific  performance  cannot  be  decreed 
against  the  vendor  if  he  has  parted  with  the  legal  title.10  But 
if  the  vendor  disable  himself  from  performing  the  contract  by 
conveying  the  premises  to  a  third  person,  who  has  notice  of  the 
purchaser's  equities,  the  latter  may  maintain  a  bill  for  specific 
performance  against  his  vendor  and  the  subsequent  purchaser.  A 
second  purchaser,  with  notice,  takes  subject  to  the  first  purchaser's 
rights,  and  may  be  compelled  to  perform  the  original  contract.11 

Chartier  v.  Marshall,  51  N".  H.  400;  Jordan  v.  Beaton,  23  Ark.  704;  Gaither 
v.  O'Doherty,  (Ky.)  12  S.  W.  Rep.  306;  Ormsby  v.  Graham,  123  Iowa  202, 
93  N.  W.  Rep.  724;  Pub.  Service  Corp'n  v.  Meadows  Co.,  72  N.  J.  Eq.  285, 
64  Atl.  976. 

8  Franz  v.  Orton,  75  111.  100.  A  purchaser  who  has  agreed  to  be  "  at  one- 
half  the  expense  of  procuring  a  title  "  cannot  demand  specific  performance 
until  he  has  paid  his  part  of  the  expense  of  procuring  title.  Hutchinson 
v.  McNutt,  1  Ohio,  14. 

"ISugd.  Vend.  (8th  Am.  ed.)  352;  2  Story  Eq.  Jur.  (13th  ed.)  §  788; 
Eewster  v.  Turner,  6  Jur.  144;  Champion  v.  Brown,  6  Johns.  Ch.  (N.  Y. ) 

402,  10  Am.  Dec.  343;   Stone  v.  Buckner,  12  Sm.  &  M.    (Miss.)    73;   Hunter 
V.  Bales,  24  Ind.  299.     See,  also,  Jacques  v.  Vigo  County,  2  Blackf.    (Ind.) 

403.  Of  course  one  who  acquires  the  legal  title  without  notice  of  the  equi- 
table rights  of  a  prior  purchaser  cannot  be  required  to  convey  to  such  pur- 
chaser.    Cunningham  v.  Depew,  Morris   (Iowa),  463. 

M  Davenport  v.  Latimer,  53  S.  C.  563,  31  S.  E.  630. 

"Story  Eq.  Jur.  §§  395,  396.  Estell  v.  Cole,  52  Tex.  170;  Austin  v.  Ewell, 
25  Tex.  Supp.  407 ;  White  v.  Mooers,  86  Me.  62,  29  Atl.  Rep.  936 ;  Bates  v. 
Swiger,  (W.  Va.)  21  S.  E.  Rep.  874;  Meyers  v.  Markham,  90  Minn.  230, 
96  N.  W.  Rep.  787. 

But  in  a  case  in  which  the  purchaser  had  rejected  the  title  as  unmarket- 
able by  reason  of  lieng  on  the  property,  it  was  held  that  he  could  not,  after 
waiting  a  year  or  more,  and  after  a  number  of  the  liens  had  been  satisfied, 
maintain  a  bill  for  specific  performance  against  the  vendor  and  one  to  whom 
the  "vendor  had  sold  the  property  in  good,  faith,  though  the  second  purchaser 
had  notice  of  the  prior  contract.  Oliver  Mining  Co.  v.  Clark,  65  Minn.  277, 
68  N.  W.  Rep.  23. 

66 


52l2  MARKETABLE   TITLE   TO   KEAL   ESTATE. 

The  vendor  cannot  defend  a  suit  for  specific  performance  on  the 
ground  that  he  has  only  the  equitable  title ;  it  is  his  -buisiness  to 
obtain  the  concurrence  of  the  person  having  the  legal  title."  But 
it  is  error  for  the  court  to  decree  that  the  defendant  convey  within 
a  certain  time  when  the  bill  shows  that  he  has  not  the  legal  title.13 

If  the  title  of  the  vendor  be  equitable  only,  the  purchaser  will 
stand  in  the  vendors  shoes  and  be  entitled  to  all  of  his  remedies 
and  may  maintain  a  suit  for  specific  performance  against  his 
vendor  and  the  original  vendor.14 

If  the  purchaser  sues  the  vendor  for  specific  performance,  it  is 
a  good  defense  by  the  latter  that  he  has  not  and  cannot  procure 
the  title.15  If  it  be  practicable,  however,  for  him  to  procure  the 
title1'  upon  fair  terms,17  it  seems  that  he  will  be  required  so  to 
do,  unless,  it  is  presumed,  the  amount  necessary  to  be  expended 
for  that  purpose  should  exceed  the  purchase  money.  "  In  equity  " 
an  answer  by  the  vendor  that  he  cannot  make  title  "will  not 
suffice,  otherwise  a  seller  who  had  altered  his  mind  might  very 
easily  get  rid  of  the  contract;  but  the  courts  of  equity  say  he 
shall  answer  on  oath,  first  to  a  bill  filed  against  him,  then  on 
examination  before  a  master  whether  a  title  cannot  be  made.  The 
courts  often  make  a  way  to  obviate  apparent  difficulties  and  com- 
pel the  seller  to  procure  conveyances  in  order  to  complete  his  title, 
and  the  seller's  declaration  that  he  rescinds  the  contract  will  not 
at  all  defeat  the  purchaser's  right."  "  A  provision  in  the  contract 
that  if  the  vendor  cannot  deduce  a  good  title,  or  the  purchaser 
shall  not  pay  the  money  on  the  appointed  day,  the  agreement  shall 
be  void,  will  not  entitle  the  vendor  to  rescind  if  the  purchaser 
makes  objections  to  the  title.19  And  where  the  contract  provided 

"1  Sugd.  Vend.  (8th  Am.  ed.)  332,  525,  citing  Crop  v.  Norton,  2  Atk.  74; 
Costigan  v.  Hastier,  2  Sch.  &  Lef.  160. 

"Compton  v.  Nuttle,  2  Ind.  416. 

14 1  Sugd.  Vend.  (8th  Am.  ed.)  571  (581) ;  Schreck  v.  Pierce,  3  Iowa,  350. 

".Swepson  v.  Johnson,  84  N.  C.  44!) ;  Williams  v.  Mansell,  19  Fla.  546; 
Ormsby  v.  Graham,  123  Iowa  202,  98  N.  W.  Rep.  724. 

-  Love  v.  Camp,  6  Ired.  Eq.  (N.  C.)  209,  51  Am.  Dec.  419. 

n  Love  v.  Cobb,  63  N.  C.  324. 

"Roberts  v.  Wyatt,  2  Taunt.  268. 

"  Language  of  MANSFIELD,  C.  J.f  in  Roberts  v.  Wyatt,  supra.  A  provision 
in  the  contract  that  the  vendor  shall  have  a  specified  time  in  which  to  cure 


SPECIFIC  PERFORMANCE  OF  EXECUTORY  CONTRACTS.   523 

that  the  purchaser  should  pay  the  purchase  money  within  a  reason- 
able time  after  the  tender  of  a  marketable  title,  and  no  such  title 
was  tendered  by  the  vendor,  he  was  not  entitled  to  rescind  on  the 
ground  that  the  purchase  money  had  not  been  paid.20  Generally, 
it  may  be  said  that  non-payment  of  the  purchase  money  at  the  time 
stipulated  does  not  entitle  the  vendor  to  rescind  if  he  be  unable  to 
render  performance  on  his  part  at  that  time.21 

It  has  been  held  that  if  the  vendor  have  not  title  the  pur- 
chaser is,  nevertheless,  in  his  suit  for  specific  performance,  en- 
titled to  a  decree  that  the  vendor  make  a  reasonable  effort  to 
acquire  the  title  and  perform  his  contract.22 

If  the  objection  to  the  title  be  one  which  the  vendor  can  remove, 
he  will  be  required  to  remove  it.23 

The  fact  that  the  purchaser  files  a  bill  for  specific  performance 
when  he  knows  that  a  good  title  cannot  be  made,  is  no  ground 
upon  which  to  compel  him  to  take  such  title  as  can  be  made.24.  He 
must,  however,  submit  to  the  alternative  of  taking  that  title  or 
having  his  bill  dismissed.25 

But  while  specific  performance  cannot  be  decreed  against  a 
vendor  who  has  no  title,  it  is  no  objection  that  he  had  no  title 
when  the  contract  was  made,  if  he  has  since  acquired  it.  The 
purchaser's  equity  is  complete  if  the  vendor  have  title  at  the  time 
of  the  decree.26  It  has  been  held,  however,  that  if  the  vendor 

defects,  the  contract  to  be  void  if  the  defects  be  not  cured  in  that  time,  is  for 
the  protection  of  the  purchaser,  and  does  not  give  the  vendor  the  option  of 
curing  the  defects  or  rescinding  the  contract.  Otto  v.  Young,  227  Mo.  193, 
127  N.  W.  9. 

"Lockhart  v.  Ferrey,  59  Oreg.  179,  115  Pac.  431. 

n  Diamond  v.  Shriver,  114  Md.  643,  80  Atl.  217. 

22  Wellborn  v.  Sechrist,  88  N".  C.  287.    In  this  case  the  vendor  had  disabled 
himself  from  performing  the  contract  by  conveying  to  a  stranger. 

23  Ogooshevitz  v.  Arnold,  197  Mich.  203,  163  N.  W.  946. 

24 1  Sugd.  Vend.  (8th  Am.  ed.)   528.     Stapylton  v.  Scott,  16  Ves.  272. 

25 1  Sugd.  Vend.  (8th  Am.  ed.)  528.  Nicholson  v.  Wadsworth,  2  Swanst. 
385. 

29  Graham  v.  Hackwell,  1  A.  K.  Marsh.  (Ky.)  423;  Tysen  v.  Passmorp,  2 
Barr  (Pa.),  122,  44  Am.  Dec.  181;  Trask  v.  Vinson,  20  Pick.  (Mass.)  10f), 
the  court  saying:  "We  know  of  no  rule  of  law  or  principle  of  sound  policy 
which  prohibits  a  person  from  agreeing  or  covenanting  to  convey  an  estate 
not  his  own.  He  might  have  authority  from  the  owner  to  sell,  or  he  might 
have  the  refusal  of  the  estate,  or  he  might  rely  upon  his  ability  to  purchase 


524  MAKKETAELE    TITLE   TO    REAL    ESTATE. 

agree  to  convey  by  quit  claim,  the  agreement  has  reference  only 
to  such  title  as  he  may  then  have,  and  not  to  a  title  thereafter 
acquired,  and  that  he  cannot  be  compelled  to  convey  such  after- 
acquired  title  to  the  purchaser.27 

The  purchaser  may,  of  course,  file  his  bill  requiring  the  vendor 
to  remove  an  incumbrance  from  the  premises,  unless  the  purchase 
was  made  subject  to  incumbrances.28  But  the  court  cannot  enter 
a  decree  requiring  tho  vendor  to  remove  an  incumbrance  which  ho 
has  not  a  legal  right  to  discharge.29  Nor  can  the  vendor  be  re- 
quired to  remove  incumbrances  or  cure  defects  in  the  title  where 
the  sale  was  not  made  upon  a  consideration  deemed  valuable  in 
law.30 

If  the  contract  provides  only  that  the  vendor  shall  make  a  good 
and  sufficient  deed,  and  that  .the  earnest  money  shall  be  refunded 
if  the  title  proves  to  be  not  good,  the  purchaser  cannot,  if  he  is 
dissatisfied  with  the  title,  refuse  to  accept  a  conveyance  with  gen- 
eral warranty,  reject  an  offer  to  return  the  purchase  money,  and 
require  the  vendor  to  remove  objections  to  the  title.  The  vendor, 
under  such  circumstances,  has  a  right  to  treat  the  contract  as 
rescinded,  and  to  seek  another  purchaser.81  Where  a  contract  for 

it  in  season  to  execute  his  contract.  If  he  fairly  performs  the  terms  of  the 
stipulation  it  matters  nothing  to  the  purchaser  that  the  title  was  acquired 
after  the  contract." 

17  Woodcock  v.  Bennet,  1  Cow.  (3T.  Y.)  711,  13  Am.  Dec.  563.  This  is 
closely  analogous  to  the  rule  that  a  quit-claim  conveyance  will  not  estop  the 
grantor  from  setting  up  an  after-acquired  title  to  the  estate.  Post,  8  218. 
In  Mitchell  v.  Wood  son,  37  Miss.  507,  it  wa<*  held  that  an  agreement  to  quit 
claim  would  not  prevent  the  vendor  from  acquiring  and  holding  another 
title  before  the  time  for  making  the  quit  claim.  Citing  Bush  v.  Cooper.  2R 
Miss.  699,  59  Am.  Dec,  270;  Jackson  v.  Wright,  14  Johns.  (NT.  Y.)  193; 
Bank  v.  Mersereau,  3  Barb.  Cli.  (X.  Y.)  568;  Jackson  v.  Hubbell,  1  Cow. 
(X.  Y.)  613. 

"2  Siiprl.  Vend.  (8tii  Am.  ed.)  11)1,  192  (548).  Bennett  v.  Arams,  41  Barh. 
(X.  Y.)  623. 

•Jerome  v.  Rcudder,  2  Tlob.   (X.  Y.)    169. 

»°2  Story  Eq.  7«3b.     Froman  c.  Froman,  13  Ind.  317. 

M  Briz/olara  v.  Mosher,  71  111.  41;  Long  v.  Miller,  46  Minn.  13.  48  X.  \V. 
409;  Friendly  v.  F.lwcrt.  57  Oreg.  599,  105  Par.  404,  Ann.  Cas.  1913  A.  357. 

In  a  case  in  which  the  contract,  provided  that  the  vendor  should  return 
the  deposit  and  should  not  be  liable  for  damage*  in  case  the  purchaser  should 
be  warranted  in  rejecting  the  title  RH  unmarketable,  it  was  held  that  the 
pun-hatter,  on  finding  the  title  unmarketable,  might  complete  the  contract, 


SPECIFIC  PERFORMANCE  OF  EXECUTORY  CONTRACTS.   525 

the  sale  of  land  provided  that  if  the  title  should  not  be  good  and 
should  be  refused  by  the  purchaser,  the  contract  should  be  void 
and  the  purchase  money  returned,  it  was  held  that  the  vendor  was 
not  thereby  obligated  to  cure  defects  in  the  title,  and  that  if  the 
title  was  rejected  he  might  terminate  the  contract  and  repay  the 
purchase  money.  The  purchaser  refused  to  proceed  with  the  pur- 
chase because  there  was  an  incumbrance  on  the  premises.32  And 
if  the  purchaser  by  his  acts  or  conduct  manifestly  abandons  the 
contract,  as  by  submitting  to  a  forfeiture  of  the  earnest  money, 


specific  performance  in  equity.  This  species  of  relief  is  a  matter 
of  sound  judicial  discretion,  and  where  the  court  perceives  that  the 
purchaser  has  virtually  rescinded  the  contract  it  will  not  interfere 
in  his  favor,  especially  if  in  the  meanwhile  the  property  has 
materially  increased  in  value.  He  cannot  keep  the  agreement 
open  indefinitely  so  as  to  avail  himself  of  a  rise  in  value,  or  to 
escape  loss  in  case  of  a  depreciation.33  On  the  other  hand,  a  rapid, 
unexpected  and  unprecedented  increase  in  the  value  of  the  prop- 
erty while  the  title  is  being  perfected  will  not  justify  the  vendor 
in  refusing  to  complete  the  contract,  where  the  purchaser  has 
waived  none  of  his  rights,  and  has  been  guilty  of  no  laches  or 
unjustifiable  delay  in  seeking  specific  performance.34 

There  must,  of  course,  be  an  unconditional  acceptance  of  an 
offer  to  sell  before  the  purchaser  can  maintain  a  bill  for  specific 
performance.  Therefore,  where  the  acceptance  by  the  purchaser 
was  qualified  by  the  addition  "provided  the  title  is  perfect,"  it 
was  held  that  a  suit  for  specific  performance  could  not  be  main- 
tained by  the  purchaser.30 

take  a  conveyance,  and  rely  on  the  grantor's  covenants  for  title,  or  that  he 
might  rescind  and  receive  back  his  deposit;  but  having  elected  to  rescind  he 
could  not  afterward  refuse  to  receive  back  his  deposit  and  insist  upon 
specific  performance  by  the  vendor.  Johnson  v.  Fuller,  55  'Minn.  269;  56 
N".  W.  813,. 

52  Long  v.  Miller,  46  Minn.  13,  48  N.  W.  Rep.  409. 

"Presbrey  v.  Kline,  20  D.  C.  513;  Giltner  v.  Rayl,  (Iowa)  61  N.  W.  Rep. 
22S;  Simpson  v.  Atkinson  (Minn.),  39  N.  W.  Rep.  323. 

S4Keim  v.  Lindley,  (N.  J.  Eq.)  30  Atl.  Rep.  1063.  In  this  case  the 
premises  in  controversy  consisted  of  a  narrow  strip  of  water  front  that 
became  very  valuable  as  a  seaside  resort. 

K  Corcoran  v.  White,  117  111.  118,  57  Am.  Rep.  858. 

6 


526  MARKETABLE   TITLE   TO   REAL   ESTATE. 

The  vendor  cannot  put  the  purchaser  in  default  by  tendering 
a  conveyance  so  long  as  there  are  outstanding  mortgages  on  the 
property  which  have  not  been  satisfied  on  the  record.3* 

The  purchaser,  by  making  reasonable  objections  to  the  title, 
does  not  thereby  waive  his  right,  when  the  objections  shall  have 
been  found  untenable,  to  require  specific  performance  of  the 
contract.57 

§  194.PAYMENT  OP  THE  PURCHASE  MONEY  AS  CONDITION 
PRECEDENT  TO  SPECIFIC  PERFORMANCE.  If  the  payment  of 
the  purchase  money  and  the  conveyance  of  title  by  the  vendor  are 
to  be  simultaneous  and  concurrent  acts,  neither  party  can  demand 
a  specific  performance  by  the  other  unless  he  has  tendered  per- 
formance on  his  part.38  If  the  vendor  has  executed  a  bond  to 
convey  or  make  title  at  a  specified  time  after  payment  of  the 
purchase  money,  the  retention  of  the  title  is  his  security  for  pay- 
ment, and  he  cannot  be  compelled  to  convey  unless  the  purchaser 
has  paid  or  offered  to  pay  the  purchase  money.89  A  recovery  of 
the  premises  from  the  purchaser  in  ejectment,  for  failure  to  pay 
the  purchase  money,  does  not  necessarily  deprive  him  of  the  right 
to  compel  a  specific  performance  of  the  contract.  Thus,  where  the 
purchaser  declined  to  pay  the  purchase  money  on  the  ground  that 
the  property  was  incumbered,  and  the  vendor  declared  a  forfeiture 
and  recovered  the  premises  in  ejectment,  it  was  held  that  the  pur- 
chaser might  waive  his  right  to  insist  upon  a  perfect  title,  p;iv 
the  balance  of  the  purchase  money,  less  the  amount  of  tho  incum- 
brance,  and  compel  a  conveyance  from  the  vendor  with  covenants 
stipulated  for  in  the  contract.40 

As  a  general  rule,  in  tho  English  practice,  a  purchaser  who  has 

"Tucker  v.  Thraves,  50  Okl.  601,  151  Par.  508;  Bateman  v.  Hopkins,  157 
N.  C.  470,  73  S.  E.  133;  Ann.  Gas.  1913  C.  232. 

"Wilson  v.  Seyhold,  216  Fed.  975. 

•Ante,  55  R6,  8S;  post,  f  253. 

"Mix  v.  I?. -a.il.  4<]  III.  310.  Where  a  contract  for  tho  sale  of  land  had 
been  rescinded  hy  agreement  Ix-twoen  the  vendor  and  the  administrator  of  the 
vendee  after  part  of  (he  purchase  money  liad  hoen  paid,  it  was  held  tlrat 
the  heirs  of  the  vendee.  \\h<>  repudiated  the  rescission,  could  not  compel 
ppecific  performance  of  the  contraet  until  they  should  pay  or  tender  th« 
residue  of  the  purchase  money.  Strange  v.  Watson,  11  Ala.  324. 

*  Wallace  v.  Mclaughlin,  57  Ind.  53. 


SPECIFIC     PERFORMANCE    OF     EXECUTORY     CONTRACTS.       527 

been  put  in  possession,  will  foe  required  to  pay  the  purchase  money 
into  court  pending  his  suit  for  specific  performance.41  The  excep- 
tions to  this  rule  have  been  thus  summarized;  where  the  vendor 
has  thought  proper  to  put  the  purchaser  into  possession,  upon  an 
understanding  between  them  that  the  latter  shall  not  pay  the 
purchase  money  until  he  has  a  title,  the  purchaser  cannot  be  called 
upon  to  pay  the  money  into  court;  and  the  reason  is  that  the 
understanding  becomes  a  matter  of  contract  which  the  vendor  must 
abide  by,  and  he  cannot  call  upon  the  court  to  interfere  and  com- 
pel the  purchaser  to  part  with  his  money  before  he  has  a  title.42 
Nor  will  the  purchaser  be  compelled  to  pay  the  purchase  money 
into  court  before  the  completion  of  the  title,  where  the  vendor 
has  voluntarily  permitted  him  to  take  possession  without  any 
stipulation  or  agreement  about  paying  the  purchase  money.43 
And,  as  a  general  rule,  the  court  will  not  order  purchase  money  to 
be  paid  before  a  title  is  given,  unless  under  special  circumstances 
— such  as  taking  possession  contrary  to  the  intention  or  against 
the  will  of  the  vendor,  or  where  the  purchaser  makes  frivolous 
objections  to  the  title,  or  throws  unreasonable  obstacles  in  the 
way  of  completing  the  purchase,  or  is  exercising  improper  acts 
of  ownership,  by  which  the  property  is  lessened  in  value.44  If  the 
purchaser  be  in  possession  under  a  title  anterior  to  the  contract, 
or  if  possession  were  given  independently  of  the  contract,  and 
there  is  laches  on  the  part  of  the  vendor  in  completing  the  title, 
the  court  will  not  order  the  purchase  money  to  be  paid  in.45 

The  purchaser,  of  course,  will  not  lose  his  right  to  a  specific 
performance  of  the  contract  by  failing  to  make  a  formal  tender 
of  the  purchase  money  if  he  has  notice  that  the  vendor  cannot  or 
will  not  carry  out  the  agreement.46 

"Birdsall  v.  Walton,  2  Eclw.  Ch.   (N.  Y.)   315. 

a  Gibson,  v.  Clarke,  1  Ves.  &  B.  500. 

48  Clarke  v.  Elliott,  1  Mad.  C.  R.  606. 

"I  Sugd.  Vend.  (8th  Am.  ed.)  229,  345.  Bonner  v.  Johnston,  1  Meriv. 
366;  Boothby  v.  Waller,  1  Mad.  C.  R.  197. 

45  Freebody  v.  Perry,  Coop.  91 ;  Fox  v.  Birch,  1  Meriv.  105. 

"Ante,  §  87.  Shattuck  v.  Cunningham,  166  Pa.  St.  368,  31  Atl.  Rep.  136; 
Wheeling  Cr.  Gas  Co.  v.  Elder,  54  W.  Va.  335,  46  S.  E.  357;  Lathrop  v. 
Collieries  Co.,  70  W.  Va.  58,  73  S.  E.  299.  Thus,  where,  at  the  time  fixed 
for  performance,  the  vendor  repudiated  the  contract  and  refused  to  perform, 


328  MARKETABLE    TITLE    TO   REAL    ESTATE. 

§  195.  LACHES  OF  PURCHASER.  The  purchaser's  application 
for  specific  performance  must  be  seasonably  made,  lie  cannot 
delay  the  payment  of  the  purchase  money  after  the  time  rixed  for 
completing:  the  contract  and  then,  when  the  circumstances  of  the 
parties,  and  perhaps  the  value  of  the  land,  have  changed,  call  upon 
the  vendor  for  a  conveyance.47  This  rule  applies  with  peculiar 
force  where  the  vendor  notifies  the  purchaser  to  complete  the  con- 
tract within  a  specified  time  under  penalty  of  rescission.*8  But 
the  purchaser  will  not  be  chargeable  with  laches  where  he  has 
delayed  paying  the  purchase  money  on  account  of  doubts  as  to  the 
title;  the  title  itself  being  in  litigation  or  dispute.*9 

§  196.  DAMAGES  IN  EQUITY.  As  a  general  rule  a  court  of 
equity  will  not  entertain  a  suit  by  the  purchaser  of  a  defective 
title,  if  no  other  relief  is  asked  than  damages  for  breach  of  the 
contract.50  Therefore,  it  has  been  frequently  held  that  if  he  files 
a  bill  seeking  specific  performance  or  damages  in  lieu  thereof, 
when  he  knows  specific  performance  is  impossible  by  reason  of  the 
fact  that  the  defendant  had  conveyed  the  premises  to  an  innocent 
third  party,  he  will  be  denied  relief,  because  such  a  proceeding  is 

he  could  not  afterwards  put  the  purchaser  in  default  by  tendering  a  deed  and 
demanding  the  purchase  money  which  then  the  purchaser  was  unable  to 
produce.  Bateman  v.  Hopkins.  157  X.  C.  252,  73  S.  E.  133. 

<7Shorthall  v.  Mitchell,  57  111.  161;  Melton  v.  Smith,  65  Mo.  355,  a  case  in 
which  the  vendor  failed  to  show  laches.  Pomeroy  v.  Fullerton,  131  Mo. 
581;  33  S.  W.  Rep.  173. 

41  Chabot  v.  Winter  Park  Res.  Co.,  34  Fla.  258.  15  So.  Rep.  756. 

•Galloway  v.  Barr,  12  Ohio,  354;  Keim  v.  Lindley,  (X.  J.  Eq.)  30  Atl. 
Rep.  1003,  where  the  subject  was  considered  at  length.  Oreenblatt  v.  Her- 
mann. 144  X.  Y.  13,  39  N.  E.  Rep.  966.  Of.  Barbour  v.  Hickey,  2  App.  Cas. 
(D.  C.)  207. 

Ml  Sugd.  Vend.  (8th  Am.  eel.)  350  (233);  Rawle  Covta.  (5th  ed.)  ?  354. 
Courts  of  equity  in  England  are  empowered  by  "  Lord  Cairns'  Act"  (21,  22 
Viet,  c.  27,  185S)  to  give  damages,  but  the  jurisdiction  is  limited  to  cases 
in  which  specific  performance  is  also  prayed.  Fry  Sp.  Perf.  (3d  Am.  ed.) 
p.  607,  notes:  Hatch  v.  Cobb.  4  Johns.  Ch.  (X.  Y.)  559:  Kempslmll  v.  Stone. 
5  Johns.  Ch.  (X.  Y.)  193;  Morse  v.  Elmendorf.  11  Paige  Ch.  (X.  Y.)  270; 
Wiswall  v.  MeOowan,  2  Barb.  (X.  Y.)  270;  Hill  v.  Fiske,  38  Me.  520;  Smith 
v.  Kelly,  56  Me.  64;  Doan  v.  Maurr,  33  111.  227;  McQueen  v.  Choteau,  20  Mo. 
222:  64  Am.  Dec.  178.  Though  the  bill  prays  compensation  in  damages  in 
case  a  marketable  title  cannot  be  given,  it  cannot  be  entertained  as  a  hill  to 
recover  damages,  the  remedy  of  the  plaintiff  being  at  law.  Van  Keuren  v. 
Siedler.  73  X.  J.  Eq.  239,  66  Atl.  920. 


SPECIFIC     PERFORMANCE     OF     EXECUTORY     CONTRACTS.       529 

practically  a  suit  for  damages  only.51  The  same  rule  will  apply, 
it  is  apprehended,  if  the  purchaser  knows,  or  is  bound  to  know, 
that  the  vendor  from  any  other  cause,  will  be  unable  to  perform 
the  decree  of  the  court.  But  damages  may  -always  be  recovered 
in  equity  as  an  alternative  or  incident  to  some  other  relief  which 
is  in  good  faith  the  object  of  the  suit.52  If  the  vendor  in  his 
answer,  himself  asks  for  specific  performance  and  a  decree  for  the 
purchase  money,  he  waives  the  objection  that  the  purchaser's  rem- 
edy is  at  law ;  and  the  court  may  retain  the  action  for  the  purpose 
of  awarding  damages.53  If  the  vendor  fail  to  complete  his  con- 
tract at  the  appointed  time,  the  purchaser  may  have  specific 
performance  in  equity;  or,  if  the  title  be  defective  and  perform- 
ance be  impossible,  he  may  have  damages  in  lieu  thereof,54  unless 

51  Sims  v.  Lewis),  5  Munf.  (Va.)  29;  Bullock  v.  Adams,  5  C.  E.  Gr.  (N.  J.) 
367;  Lewis  v.  Gale,  4  Fla.  437;  Levy  v.  Knepper,  102  1ST.  Y.  Supp.  313,  117 
App.  Div.  163;  Pub.  Service  Corp'n  v.  Meadows  Co.,  *72  1ST.  J.  Eq.  285,  64 
All.  976. 

"Cases  cited  in  notes  above.  2  Story  Eq.  Juris,  794,  799;  3  Pom,  Eq.  Jur. 
(2d  ed.)  §  1410,  note  1.  Slaughter  v.  Tindle,  1  Litt.  (Ky.)  358;  Fisher  v. 
Kay,  2  Bibb  (Ky.),  434;  Scott  v.  Bilgerry,  40  Miss.  119;  Chinn  v.  Heale,  1 
Munf.  (Va.)  63;  Taylor  v.  Rowland,  26  Tex.  293;  O'Beirne  v.  Bullis,  SO 
Hun  (N.  Y.),  570;  30  N.  Y.  Supp.  588;  Margraf  v.  Muir,  57  N.  Y.  155;  Miles 
v.  Furnace  Co.,  125  N.  Y.  294,  26  N.  E.  Rep.  261.  If  a  vendor  is  unable  from 
want  of  title  at  the  time  of  making  the  contract  to  carry  it  out,  a  court  of 
equity  in  a  suit  by  the  purchaser  for  specific  performance,  will  award  him 
damages,  provided  he  commenced  the  suit  in  good  faith,  without  knowledge  of 
the  disability.  Ryan  v.  Dunlap,  (Mo.)  20  S.  W.  Rep.  29;  McQueen  v.  Chou- 
teau,  20  Mo.  222,  54  Am.  Dec.  178;  Hamilton  v.  Hamilton,  59  Mo.  232.  In 
Xew  York  in  a  suit  for  specific  performance,  if  the  defendant  be  unable  to 
perform,  the  purchaser  may  have  an  order  or  judgment  for  the  return  of  his 
purchase  money,  the  defendant  not  having  demurred  on  the  ground  that 
the  action  was  improperly  brought,  or  that  the  plaintiff  had  an  adequate 
remedy  at  law.  Styles  v.  Blume,  30  N.  Y.  Supp.  409.  In  Currie  v.  Cowles, 
6  Bosw.  (If.  Y.)  452,  it  was  said  by  ROBERTSON,  J.,  that  if  the  complainant 
in  a  suit  for  specific  performance  does  not  allege  that  good  title  cannot  be 
made,  and1  merely  seeks  a  conveyance,  he  cannot  in  the  .absence  of  fraud  on 
the  part  of  the  vendor  waive  the  relief  asked  for.,  show  defendant's  want  of 
title,  and  charge  him  with  the  value  of  the  land.  The  authority  of 'this 
dictum  may  be  doubted. 

6»Snow  v.  Monk,  80  N.  Y.  Supp.  719;  81  App.  Div.  206. 

54  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1227.  McFerran  v..Tayk>r,  3  Cranch  (U. 
S.  S.  C.)  270;  Pratt  v.  Campbell,  9  Cranch.  (U.  S.  S.  C.)  456,  494.  County 
of  Mobile  v.  Kimball,  102  U.  S.  691,  706.  Stevenson  v.  Buxtoa,  37  Baxb. 

67 


530  MARKETABLE   TITLE   TO   REAL   ESTATE. 

the  plaintiff  knew  when  he  brought  his  suit  that  there  could  be 
no  performance.55  If  the  purchaser  is  first  informed  of  the  de- 
fective title  by  the  vendors  answer  or  other  pleading,  the  juris- 
diction to  award  damages  will  be  clear.56  And-  if  the  vendor 
convey  the  premises  to  an  innocent  party  pending  the  suit  for 
specific  performance,  the  purchaser  will  be  entitled  to  damages.57 
In  a  few  cases  damages  have  Jbeen  awarded  the  plaintiff  though 
he  knew  when  he  brought  his  suit  that  the  defendant  had  rendered 
specific  performance  impossible  by  conveying  the  premises  to  a 
purchaser  without  notice;58  but  in  most  of  them  the  objection 
that  the  court  had  no  jurisdiction  does  not  appear  to  have  been 
made,  and  the  great  weight  of  authority  without  doubt  supports 
the  rule  heretofore  stated. 

It  has  been  held  that  if  the  complainant  fail  to  make  out  a  case 
entitling  him  to  specific  performance,  the  bill  may,  nevertheless, 
be  retained  for  the  purpose  of  allowing  him  compensation  if  ho 
has  not  a  full  and  adequate  remedy  at  law.59  The  converse  of  this 
proposition,  also,  has  been  decided,  namely,  that  the  court  will 

(X.  Y.)  13.  Taylor  v.  Rowland,  26  Tex.  203.  In  Fisher  v.  Kay,  2  Bibb 
(Ky.),  436,  it  was  said  that  there  »vas  no  principle  better  settled  than  that 
the  obligee  of  a  title  bond  might  resort  to  a  Court  of  Chancery  in  order  to 
enforce  specific  performance,  and  that  in  the  event  of  the  obligorjs  being 
unable  to  convey,  to  pray  for  a  compensation  in  damages,  which,  the  court 
being  in  possession  of  the  whole  case,  would  allow.  In  Welsh  v.  Bayard.  C> 
C.  E.  Gr.  (N.  J.  Eq.)  186,  specific  performance -was  denied  the  purchaser, 
(1)  because  the  contract  was  not  in  writing;  and  (2)  because  the  title  to 
the  premises  was  in  the  defendant's  wife.  The  purchaser  asked1  a  decree  for 
repayment  of  the  purchase  money,  but  this  was  refused  on  the  ground  that 
his  remedy  was  at  law.  It  does  not  appear  that  he  was  advised  of  the  true 
state  of  the  title  when  he  brought  his  suit.  If  he  was  not  so  advised,  the 
case  is  at  variance  with  the  current  of  authority. 

M2  Story  Eq.  Jur.  794,  ct  aeq. 

M3  Pom.  Eq.  Jur.  $  1410.     Milkman  v.  Ordway,  106  Mass.  23:2. 

"This,  however,  in  England  seems  to  be  only  by  force  of  a  statute  (1858) 
21  A  22  Viet.  c.  27  ("Lord  Cairns"  Act"),  enlarging  the  jurisdiction  of  the 
Chancery  Courta  1  Sugd.  Vend'.  (-Sth  Am.  ed.)  352t. 

"Woodcock  v.  Bennet,  1  Cow.  (X.  Y.)  711;  13  Am.  Dec.  568.  Gibbs  v. 
Champion,  3  Ohio,  337.  Cunningham  v.  D(|><-\\.  Morn*  (Iowa).  4(52. 

"Aday  v.  Echols,  18  Ala.  355;  52  Am.  Dec.  225.  Specific  performance  was 
denied  in  this  case  because  it  did  not  appear  that  all  the  purchase  money 
had  been  paid. 


SPECIFIC     PERFORMANCE    OF    EXECUTORY     CONTRACTS.       531 

entertain  a  bill  solely  for  compensation  and  damages  provided 
specific  performance  can  be  decreed.60 

The  court,  instead  of  giving  compensation  in  damages  for  a  por- 
ion  of  the  land  to  which  title  cannot  be  made,  has  no  power  to 
decree  that  the  vendor  shall  make  up  the  deficiency  out  of  other 
adjoining  lands  to  which  he  has  title,  but  which  were  not  embraced 
in  the  contract.61 

The  measure  of  damages  for  which  a  vendor,  acting  in  good 
faith,  is  liable  if  he  be  unable  to  convey  a  good  title,  is  the  same 
in  equity  as  at  law ;  namely,  the  purchase  money  with  interest  and 
costs.62  But  if  the  vendor  be  guilty  of  fraud,63  or  if  he  disabled 
himself  from  performing  the  contract  by  conveying  the  premises 
to  an  innocent  purchaser,  the  complainant  will  be  entitled  to  a 
decree  for  the  loss  of  his  bargain,  that  is,  the  increased  value  of 
the  property.  If  the  vendor  received  a  profit  at  the  second  sale, 
it  will  be  decreed  to  the  complainant.64 

« Berry  v.   Van   Winkle,    1   Gr.   Ch.    (X.   J.)    209;   Copper  v.  Wells,   Saxt. 

X.  J.  Eq.)    10. 

"Kelly  v.  Bibb,  3  Bibb    (Ky.),  317. 

63  Bain  v.  Fothergill,  L.  R.,  7  H.  L.  158;  Burrow  v.  Scammell,  19  Ch.  Dec. 
175,  181,  223. 

•"Ante,  §  97. 

84  Sugg  v.  Stone,  5  Jones  Eq.  (X.  C.)  126;  Taylor  v.  Kelly,  2  Jones  Eq. 
(X.  C.)  240.  Graham  v.  Hackwith,  1  A.  K.  Marsh.  (Ky.)  424;  Rutledge  v. 
Lawrence,  1  A.  K.  Marsh.  (Ky.)  390;  Gerault  v.  Anderson,  2  Bibb  (Ky.),  543. 


CHAPTER  XVII. 

OF  THE  RIGHT  OF  THE  PURCHASER  TO  TAKE   TITLE  WITH  COM- 
PENSATION  FOR   DEFECTS. 

GENERAL  RULE.     §    197. 

INDEMNITY  AGAINST  FUTURE  LOSS.     §    198. 

INDEMNITY  AGAINST  DO  WEB.     §    199. 

EXCEPTIONS  TO  GENERAL  RULE.     §   200. 

RIGHT  OF  VENDOR  TO  RESCIND  ON  FAILURE  OF  TITLE.     §   201. 

§  197.  GENERAL  RULE.  We  shall  see  that  if  the  title  to  a  sub- 
stantial part  of  the  subject  fails  or  if  an  incumbrance  other  than 
a  trifling  or  inconsiderable  charge  on  the  premises  is  discovered 
after  the  purchase  money  has  been  paid,  the  purchaser  may  rescind 
the  contract,  if  executory,  and  cannot  be  required  to  take  the  title 
with  compensation  for  defects.1  Yet  there  is  no  obligation  upon 
him  to  rescind ;  as  a  general  rule  he  may  compel  the  vendor  to 
convey  to  him  that  part  to  which  the  title  is  good,  with  compensa- 
tion, or  abatement  of  the  purchase  money  for  the  portion  to  which 
the  title  failed,  or  he  may  take  such  estate  as  the  vendor  may  have 
in  the  entire  premises,  though  less  than  that  which  was  sold,  and 
have  an  abatement  of  the  purchase  money  according  to  the  differ- 
ence in  value  of  the  two  estates.2  The  same  rule  has  been  applied 

•Post,  §  326. 

1  1  Sugd.  Vend.  (8lh  Am.  cd.)  479.  46ft.  4SO;  2  Story  Eq.  779;  2  Beach  Eq. 
Jur.  §  627;  Pomeroy  Sp.  Perf.  $  438:  Bisp.  Eq.  (3d  ed.)  390;  Dart's  Vend. 
(5th  ed.)  p.  1006;  Waterman  on  Sp.  Perf.  5  499.  Wood  v.  Griffith,  1  Swanst. 
54,  per  Lord  EI.DOX,  who  said:  "  Xo  one  will  dispute  this  proposition  that  if 
a  man  offers  to  sell  an  estate  in  fee  simple,  and  it  appears  that  he  is  unable 
to  make  a  title  to  the  fee  simple,  he  cannot  refuse  to  make  a  title  to  nil  that 
he  has.  The  purchaser  may  insist  on  having  the  estate,  such  as  it  is.  The 
vendor  cannot  say  that  he  will  give  nothing  because  lie  is  unable  to  give  all 
that  he  has  contracted  to  give.  If  a  person  posAPHsed  of  a  term  for  100  years 
contracts  to  sell  the  fee,  he  cannot  compel  the  purchaser  to  take,  but  the 
purchaser  can  compel  hint  to  convey  the  term,  and  tbis  court  will  arrange  the 
equities  Wtween  the  parties."  Whoatley  v.  Sla<fc-,  4  Sim.  126;  Hill  v. 
Buckley,  17  Ves.  394,  srmblc ;  Bradley  v.  Munton,  15  B*av.  460;  Mortloek  v. 
Buller,  10  Ves.  Jr.  316;  Mawhon  v.  Fletcher.  L.  R.,  6  Ch.  App.  91;  Pa  ton  v. 
Rogers,  1  VeH.  &  Bea,  352;  James  v.  Lichrield,  L.  R.,  9  Eq.  51;  Barnes  v. 
Wood.  L.  R.,  8  Eq.  424;  Whittemore  v.  Whittemore,  L.  R..  3  Eq.  603;  Hor- 
rockn  v.  Rigby,  I*  R.,  9  Ch,  D.  ISO;  Burrow  v.  Scaramell,  L.  R.,  19  Ch.  D.  175. 

[532] 


RIGHT  OF  PURCHASER  TO  TAKE  TITLE  WITH  COMPENSATION.     533 

in  a  case  where  the  contract  had  been  executed  with  covenants  for 
title  in  which  the  parties  were  mutually  mistaken  in  respect  to 
the  title  of  a  part  of  the  land.  It  was  considered  that  the  grantee 
might  hold  the  part  to  which  the  title  was  good  and  recover  on 

In  Williams  v.  Edwards,  2  Sim.  98,  where  there  was  a  stipulation  that  errors 
in  the  description  should  not  vitiate  the  agreement,  but  that,  if  the  pur- 
chaser's counsel  should  be  of  opinion  that  the  title  was  not  marketable,  the 
agreement  should  be  void,  and  the  counsel  was  of  opinion  that  title  could  be 
made  to  two-thirds  of  the  property  only,  the  purchaser  was  refused  specific 
performance  with  an  abatement.  To  the  text:  Morgan  v.  Morgan,  2  Wh. 
(U.  S.)  302,  n.  Morss  v.  Elmendorf,  11  Paige  (N.  Y.),  277;  Westervelt  v. 
Mattheson,  1  Hoff.  Ch.  (N.  Y.)  37;  Jerome  v.  Scudder,  2  Rob.  (N.  Y.)  169; 
Bostwick  v.  Beach,  103  N.  Y.  414.  Felix  v.  Devlin,  86  N.  Y.  Supp.  12;  90 
App.  Div.  103.  Jones  v.  Shackleford,  2  Bibb  (Ky.),  411;  McConnell  v.  Dunlap, 
Hard.  (Ky.)  41;  3  Am.  Dec.  723;  Step  v.  Alkire,  2  A.  K.  Marsh.  (Ky.)  259; 
Eankin  v.  Maxwell,  2  A.  K.  Marsh.  (Ky.)  494;  12  Am.  Dec.  431.  Graham  v. 
Gates,  6  Harr.  &  J.  (Md.)  229;  Drury  v.  Connor,  6  Harr.  &  J.  (Md.)  288. 
Evans  v.  Kingsberry,  2  Rand.  (Va.)  120;  Chinn  v.  Heale,  1  Munf.  (Va.)  63; 
White  v.  Dobson,  17  Grat.  (Va.)  262.  Hudson  v.  Max  Meadows  L.  &  I.  Co., 
97  Va.  341:  33  S.  E.  Rep.  586.  Satterfieldi  v.  Spier,  114  Ga.  127;  39  S.  E. 
Rep.  930.  Henry  v.  Liles,  2  Ired.  Eq.  (N.  C.)  407;  Wilcoxon  v.  Galloway,  61 
N.  C.  463.  Tilley  v.  Land  Co.,  136  N.  C.  437;  48  S.  E.  Rep.  824.  Austin  v. 
Ewell,  25  Tex.  Supp.  403,  where  there  was  a  mistake  as  to  boundaries;  Roberts 
v.  Lovejoy,  60  Tex.  253.  Collins  v.  Smith,  1  Head  (Tenn.),  251;  Topp  v. 
White,  12  Heisk.  (Tenn.)  165;  Moses  v.  Wallace,  7  Lea  (Tenn.),  413<.  Weth- 
erell  v.  Brobst,  23  Iowa,  586.  Luckett  v.  Williamson,  31  Mo.  54.  Adams  v. 
Messenger,  147  Mass.  185;  17  N.  E.  Rep.  491;  9  Am.  St.  Rep.  679-.  Tobin  v. 
Larkin,  183  Mass.  389;  67  N.  E.  Rep.  340.  See,  also.  Massachusetts  cases 
cited,  infra.  "  Indemnity  against  contingent  right  of  diower."  To  the  text : 
Swain  v.  Burnett,  76  Cal.  299;  18  Pac.  Rep.  394;  Marshall  v.  Caldwell,  41 
Cal.  614;  Morenhout  v.  Barren,  42  Cal.  591.  Florence  Oil,  etc.,  Co.  v.  Mc- 
Candless,  26  Colo.  534;  58  Pac.  1084.  Rohr  v.  Kindt,  3  W.  &  S.  (Pa.)  563; 
39  Am.  Dec.  53;  Barnes'  Appeal,  46  Pa.  St.  350;  Erwin  v.  Myers,  46  Pa.  St. 
96.  Wallace  v.  McLaughlin,  57  111.  53,  Cowan  v.  Kane,  211  111.  572;  71 
N.  E.  Rep.  1097.  Lounsbery  v.  Locander,  25  N.  J.  Eq.  555;  Meleck  v.  Cross, 
62  N.  J.  Eq.  545;  51  Atl.  16.  Wilson  v.  Cox.  50  Miss  133.  Moses  v.  Wallace, 
7  Lea  (Tenn.),  413.  Gartrell  v.  Stafford,  12  Neb.  545;  11  N.  W.  Rep.  732. 
Beck  v.  Bridgman,  40  Ark.  382.  Vagueness  and  uncertainty  in  the  pleadings 
and  proof,  or  a  variance  between  them  as  to  whether  the  vendor  covenanted 
to  convey  the  entire  interest  in  lands,  or  only  his  undivided  interest,  is  no 
objection  to  a  decree  for  specific  performance,  since  the  court  can  only  compel 
him  to  convey  such  interest  as  he  may  have.  Bogan  v.  Baughdrill,  51  Ala. 
312,  citing  3  Parsi.  Cont.  354.  The  purchaser  has  a  right  to  accept  an  undi- 
vided interest,  with  compensation  in  lieu  of  the  entirety.  Covell  v.  Cole,  16 
Mich.  223.  In  Cady  v.  Gale,  5  W.  Va.  547,  one  who  had  sold  his  wife's 
separate  estate  as  his  own  was  compelled  to  convey  his  life  estate  by  the 


MARKETABLE   TITLE   TO   SEAL   ESTATE. 

the  warranty  as  to  the  residue.1  The  purchaser  may  insist  upon 
specific  performance  with  an  abatement  of  the  purchase  money, 
if  he  be  unable  to  obtain  the  benefit  of  an  easement  appurtenant 
to  the  premises.  Thus,  where  the  owner  of  land  sold  it  as  building 
lots,  bounding  the  lots  on  streets  of  a  specified  width,  as  laid  down 
on  a  map  but  not  actually  opened,  and  the  vendor  did  not  own  all 
the  streets  designated  on  the  map,  and  hence  could  not  be  com- 
pelled to  open  them,  the  purchaser  was  held  entitled  to  an  abate- 
ment of  the  price  to  the  extent  of  the  loss  sustained  on  that 
account.4 

If  the  purchaser  elects  to  take  such  interest  as  the  vendor  has, 
he  cannot  afterwards  change  that  election.6 

A  subsequent  conveyance  by  the  vendor  is  no  ground  for  refus- 
ing specific  performance  if  the  purchaser  be  willing  to  accept  what 
remains  of  the  land,  with  an  abatement  of  the  purchase  money;* 
and  this,  though  the  subsequent  conveyance  were  made  with  his 
consent.7  The  vendor  cannot  object  to  specific  performance  on  the 

curtesy,  the  purchaser  electing  to  take  such  estate.  The  purchaser  cannot 
maintain  a  suit  for  specific  performance  against  the  vendor  and  a  third 
person  in  adverse  possession  of  part  of  the  land  under  a  title  adversa  to 
that  of  the  vendor,  and,  in  case  the  adverse  claim  is  sustained,  to  have  an 
abatement  of  the  purchase  money.  His  remedy  is  in  ejectment.  1-nnp  v. 
Jones,  5  Leigh.  (Va.),  192. 

Recent  Cases.  Cashman  v.  Bean,  226  Mass.  198;  115  N.  E.  574;  Brisbane 
v.  Sullivan,  83  X.  J.  Eq.  182;  93  AtL  705;  Eppstein  v.  Kuhn,  225  111.  115; 
80  N~.  E.  80;  Campbell  v.  Cronley,  150  N\  C.  457;  64  S.  E.  213;  Flowe  v. 
Hartwirk,  167  N.  C.  448;  83  S.  E.  841;  Farber  v.  Blubaker  Coal  C.,  216 
Pa.  209;  65  Atl.  551;  Barthel  v.  Engle;  261  Mo.  307;  168  S.  W.  1154; 
Baldwin  v.  Brown,  48  Wash.  303;  93  Pac.  413;  Lathrop  v.  Collieries  Co.,  70 
W.  Va.  58;  73  S.  E.  299;  Osborne  v.  Fairley,  (Ark.)  211  S.  W.  917;  Hazzard 
v.  Morrison,  (Tex.  Civ.  App.)  130  S.  W.  244. 

•  Butohej  v.  Peterson,  26  W.  Va,  447 ;  53  Am.  Rep.  89,  citing  Atty.-Gen.  v. 
Day,  1  Ves.  218.  Beverly  v.  Lawson,  Z  Munf.  (Va.)  317.  Brady  v.  Bank  of 
Com.  41  Okl.  473;  138  Pac.  1020.  Compare  Silliman  v.  Gillespie,  48  W.  Va. 
374;  37  S.  S.  Rep.  669.  See,  also,  Clark  v.  Hurdgrove,  7  Qrat.  (Va.)  399. 
But  see  post,  this  chapter.  "  Exceptions,"  an  to  mistake. 

•Leiker  v    Henran.   (Tcnn.)   41  S.  W.  Rep.  862. 

•Farber  v.  Bluhaker  Coal  Co.,  216  Pa,  209;  65  Atl.  551,  citing  Baney  v. 
Killman  1  Pa.  141;  44  Am.  Dec.  100;  Pence  v.  Langdon,  99  U.  S.  578;  25 
L.  Ed.  420;  ( 'I. -uirl*  v.  Ix>ndon,  etr.,  Ry.  Co.,  L.  R.  7  Ex.  26. 

"Wingate  v.  Hamilton,  7  Ind.  73.     BUM  v.  Gilliland,  5  Ala.  761. 

'Water*  v.  Travis,  9  Johns.    (N.  Y.)    450. 


EIGHT  OF  PURCHASER  TO  TAKE  TITLE  WITH   COMPENSATION.       535 

ground  that  he  holds  a  bare  legal  title  in  trust  for  another,  if  the 
purchaser  be  willing  to  accept  such  title.8  Nor  can  he  object  that 
the  title  is  outstanding  in  a  third  person.9  The  purchaser  may 
take  the  equitable  title  if  he  chooses,  though,  as  will  be  seen  here- 
after, he  cannot  be  compelled  to  accept  such  a  title.10  The  pur- 
chaser may  compel  a  surviving  tenant  in  common  to  convey, 
though  the  heir  of  the  deceased  tenant  in  common  cannot  be  com- 
pelled to  complete  the  contract.11  If  the  parties  are  mutually 
mistaken  as  to  the  vendor's  title  to  a  part  of  the  land,  the  pur- 
chaser, having  improved  the  premises,  may  compel  the  vendor  to 
convey  the  other  part,  and  have  a  ratable  abatement  of  the  purchase 
money  for  the  deficiency.12  The  vendor  cannot  refuse  to  convey 
on  the  ground  that  the  property  is  incumbered.  The  purchaser 
has  a  right  to  insist  upon  the  application  of  the  unpaid  purchase 
money  to  the  incumbrance.18  A  charge  upon  the  premises  for 
the  maintenance  of  a  third  person  is  no  reason  why  the  contract 
should  not  be  specifically  performed,  if  the  purchaser  be  willing 
to  take  the  title  with  warranty.14 

The  basis  upon  which  compensation  or  abatement  for  the  part 
to  which  a  title  cannot  be  made  will  be  decreed,  is  the  actual  value 
of  the  part  lost,  and  not  merely  the  average  price  per  acre  agreed 
to  be  paid  for  the  whole  tract.15  The  rule  in  this  respect  is  the 
same  as  in  actions  at  law  for  breach  of  the  covenants  for  title.16 
If  the  title  to  the  entire  premises  is  good,  but  there  is  a  deficiency 
in  the  acreage  or  quantity  purchased,  the  question  whether  the 

•Hyde  v.  Kelly,  10  Ohio,  215.  Lathrop  v.  Collieries  Co.,  70  W.  Va.  58; 
73  S.  E.  299. 

»1  Sugd.  Vend.   (8th  Am.  ed.)   525,  532   (349,  355). 

10  Post,  ch.  31,  §  290. 

"Atty.-Gen.  v.  Day,  1  Ves.  218. 

MVoorhees  v.  De  Meyer,  3  Sandf.  Ch.    (N.  Y.)    614. 

"Jerome  v.  Scudder,  2  Rob.  (N.  Y.)  169.  Hunt  v.  Smith,  139  111.  296;  28 
N.  E.  Rep.  809. 

"Bates  v.  Swiger,  (W.  Va.)  21  S.  E.  Rep.  874. 

"Jacobs  v.  Locke,  2  Ired.  Eq.  (N.  C.)  286.  Moses  v.  Wallace,  7  Lea 
(Tenn.),  413.  Cypress  Lumber  Co.  v.  Tiller,  73  Ark.  354;  84  S.  W.  Rep.  490. 

™  Ante,  §  170."  Doctor  v.  Hellberg,  65  Wis.  415;  27  N.  W.  Rep.  176.  In 
determining  the  compensation,  the  peculiar  value  of  the  tract,  if  unincum- 
bered,  to  the  complainant  in  connection  with  his  other  land,  cannot  be  con- 
sidered. Capstick  v.  Crane,  66  N.  J.  Eq.  341 ;  57  Atl.  Rep.  1045. 


536  .MARKETABLE  TITLE  TO  HEAL  ESTATE. 

purchaser  will  be  entitled  to  an  abatement  of  the  purchase  money 
depends  upon  whether  the  contract  was  one  of  hazard  as  to  the 
quantity,  or  whether  the  purchaser  is  entitled  under  the  contract 
to  demand  a  specific  number  of  acres  or  other  measure  of  quantity. 
The  question  is  somewhat  foreign  to  the  plan  and  scope  of  this 
work.  The  cases,  in  great  numbers,  will  be  found  collected  in  tin- 
standard  text  books.17 

If  the  purchaser  when  sued  for  the  purchase  money  by  the 
vendor  or  his  assignee,  elect  to  keep  the  premises  though  the  title 
be  defective,  he  cannot  afterwards,  when  a  bill  is  filed  to  subject 
his  equitable  interest  in  the  premises  to  the  payment  of  the  judg- 
ment for  the  purchase  money,  avail  himself  of  want  of  title  in 
the  vendor  as  a  defense.18 

A  decree  for  specific  performance  should  not  direct  that  the 
vendor  procure  releases  from  parties  over  whom  he  has  no  con- 
trol; but  it  should  direct  an  inquiry  by  a  master  as  to  defects  and 
incumbrances,  and  order  that  the  purchase  money  be  abated  or 
paid  to  a  referee  or  other  officer  of  the  court,  or  be  brought  into 
court,  to  be  applied,  as  far  as  necessary,  to  the  discharge  of  incum- 
brances, and  the  balance,  if  any,  be  paid  over  to  the  vendor.19 

The  purchaser  in  possession  and  insisting  upon  specific  per- 
formance of  the  contract  with  abatement  of  the  purchase  nmney 
as  to  that  part  of  the  land  to  which  the  title  had  failed,  niu-t 
surrender  that  part  to  the  vendor.  He  cannot  refuse  to  pay  the 
purchase  money  and  at  the  same  time  retain  possession.20 

The  purchaser  cannot  maintain  a  suit  to  have  the  depreciation 
in  value  of  the  premises,  by  reason  of  defects  in  the  title,  deducted 
from  the  price,  and  to  compel  a  conveyance  on  payment  of  the 
residue.21 

The  fact  that  the  purchaser  agrees  to  take  the  title  subject  to 
an  incumbrance  and  does  not  insist  upon  an  abatement  of  the 

"Fry  Sp.  Perf.  (3d  eel.)  p.  57R.  <-l  w/. ;  1  Siigd.  Vend.  (9th  Am.  ed.)  101 
(324)  ;  2  Story  Eq  .Tur.  <-h.  10.  Sop  Ketch  urn  v.  Stout.  20  Ohio.  453.  where 
the-  mihjert  is  elaborately  dicu-iMwed,  and  many  authorities  collected. 

"Dart  v.  McQuilty,  C  Ind.   391. 

"Jerome  v.  Soudder,  2  Rob.   (X.  Y.)    169. 

"Lanyon   v.   Cbesney,   186   Mo.   540. 

"Leerburger  v.  Watoon,  134  N.  Y.  Supp.  818;   76  Misc.  Rep.  3. 


EIGHT  OF  PURCHASER  TO  TAKE  TITLE  WITH  COMPENSATION.     537 

purchase  price,  does  not  justify  the  inference  that  he  intended 
to  stand  the  loss  resulting  from  the  incumbrance.22 

The  purchaser  must,  within  a  reasonable  time,  elect  whether 
he  will  take  the  title  with  abatement  of  the  purchase  money  or 
compensation  for  defects;  and  in  default  of  such  election  the 
vendor  may  treat  the  contract  as  abandoned  and  otherwise  dispose 
of  the  property.2* 

§  198.  INDEMNITY  AGAINST  FUTURE  LOSS.  The  purchaser 
cannot  demand  an  indemnity  other  than  that  afforded  by  the  cove- 
nants for  title,  against  a  possible  loss  from  a  defect  in  the  title  to 
the  estate,24  or  an  incumbrance  on  the  property,  except  in  the  case 
of  an  inchoate  right  of  dower  in  the  premises,25  if  indeed  the  deten- 
tion of  the  purchase  money  to  the  extent  of  the  present  value  of 
that  right  be  regarded  as  indemnity  and  not  compensation.  Per- 
haps the  most  important  case  that  has  arisen  in  the  United  States 
illustrating  this  principle,  is  that  of  Refeld  v.  Woodfolk,  22  How. 
(TJ.  S.)  318.  There  the  purchaser  of  a  large  estate  paid  the  pur- 
chase money  in  full,  knowing  that  there  was  an  incumbrance  on 
the  property  amounting  to  $60,000.  Afterwards  he  filed  a  bill 
for  specific  performance,  and  that  the  vendor  be  compelled  to 
remove  the  incumbrance  from  the  property  or  to  indemnify  him 
against  it  when  it  should  mature  and  become  enforceable.  The 
court  decreed  that  the  vendor  convey  the  property  with  general 
warranty ;  that  he  remove  the  incumbrance  when  it  should  mature, 
and  that  in  the  meanwhile  he  deposit  State  bonds,  to  the  amount 
of  the  incumbrance,  with  the  clerk  of  the  court  as  an  indemnity 
against  the  possible  enforcement  of  the  incumbrance.  This  decree 
was  reversed  on  appeal,  the  court  holding  that  the  purchaser  had 

"Paris  v.  Golden,  96  Kan.  668;    153  Pac.  528. 

"Neill  v.  McClung,  71  W.  Va.  458;  76  S.  E.  878. 

24Sugd.  Vend.  (SthiAm.  ed.)  467  (306)  574  (383)  ;  Fry  Sp.  Perf.  (3d  Am. 
ed.)  §  1245;  Batten  Sp.  Perf.  Law  Lib.  171.  Balmanno  v.  Lumley,  1  Ves. 
&  Bea.  225,  per  Lord  ELDON;  Paton  v.  Brebner,  1  Bligh,  66;  Aylett  v.  Ashton, 
1  Myl.  &  Cr.  105;  Bainbridge  v.  Kinniard,  32  Beav.  346;  Ross  v.  Boards,  3 
Xev.  &  Per.  382;  Lawrenson  v.  Butler,  1  Sch.  &  Lef.  13>;  Mortlock  v.  Butler, 
10  Ves.  2&2;  Golver  v.  Clay,  7  Beav.  188.  Lounsbery  v.  Locander,  25  N".  J.  Eq. 
554. 

25  Young  v.  Paul,  10  N.  J.  Eq.  415;  64  Am.  Dec.  456.     Post,  this  chapter. 

68 


538  MARKETABLE  TITLE  TO  REAL  ESTATE. 

no  right  to  any  other  or  greater  indemnity  than  that  afforded  by 
the  covenant  of  warranty  which  his  contract  entitled  him  to 
demand.  A  different  rule  has  been  held  to  prevail,  where  the 
contract  has  been  executed  by  the  delivery  of  a  conveyance  with  a 
covenant  against  incunibrances.  The  reason  given  for  the  dis- 
tinction is  that  in  an  executory  contract  for  the  sale  of  lands  there 
can  be  no  implication  of  an  agreement  to  provide  an  indemnity 
against  an  immature  or  doubtful  incumbrance  upon  the  estate.26 
§  199.  INDEMNITY  AGAINST  INCHOATE  BIGHT  OF  DOWER. 
If  the  wife  refuse  to  join  with  her  husband  in  the  conveyance, 
she  cannot  be  compelled  so  to  do.27  The  purchaser  may  of  course 
elect  to  accept  the  conveyance  of  the  husband  alone.28  Whether, 
in  such  a  case,  he  may  demand  an  abatement  of  the  purchase 
money,  as  an  indemnity  against  a  possible  claim  for  dower  in  the 
future,  is  a  question  upon  which  there  is  a  conflict  of  decision ;  but 
the  weight  of  authority  and  the  better  view  seems  to  be  that  the 
purchase  money  may  be  abated.29  If  the  written  contract  between 

"In  Thomas  v.  St.  Paul's  M.  E.  Church,  86  Ala,  138;  5  So.  Rep.  508,  the 
vendor  was  required  to  provide  the  purchaser  with  an  indemnity  against  an 
incumbrance  on  the  premises.  The  case  was  distinguished  from  Refeld  v. 
Wool  folk,  supra,  hy  the  fact  that  the  contract  had  been  executed  by  convey- 
ance with  covenant  against  inoumbrances,  while  in  the  latter  caw  the  eon- 
tract  was  merely  executory.  The  former  case  may,  therefore,  be  regarded  as 
establishing  the  proposition  that  in  case  of  a  contract  executed  with  a  cove- 
nant against  incumbrances,  the  grantee  may  in  equity  require  the  vendor 
either  to  remove  the  incumbrance,  or  provide  an  indemnity  against  it.  There 
is  also  an  intimation  in  this  case  that  if  the  contract  had  provided  that  if 
the  purchaser  had  received  <a  conveyance  with  a  covenant  against  incum- 
brances, the  vendor  might  have  been  compelled  to  provide  an  indemnity 
against  an  existing  incumbrance,  though  the  contract  was  still  executory. 

"2  Story  Eq.  Jur.  §  731.  Troutman  v.  Gowing,  16  Iowa,  415.  Hanna  v. 
Phillips,  1  Grant  (Pa.),  253.  Allison  v.  Shilling,  27  Tex.  450;  86  Am.  Dec. 
622.  Yost  v.  Devault,  9  Iowa,  60.  Richmond  v.  Robinson,  12  Mich.  193. 
Aiple  Real  Eet.  Co.  v.  Spelbrink.  211  Mb.  671;  111  S.  W.  480;  Saldutti  v. 
Flynn,  72  N.  J.  Eq.  157;  65  Atl.  246. 

"Zebley  v.  Sears,  38  Iowa,  507.  Corson  v.  Mulvany,  49  Pa.  St.  88;  88  Am. 
Dec.  485.  Steadman  v.  Handy,  (Va.),  46  S.  E.  Rep.  380.  Aiple  Rwil  Est. 
Co,  v.  Spelbrink,  211  Mo.  071;  111  S.  W.  480;  Lazzell  v.  Keenan,  77  W.  Va. 
180;  87  S.  E.  80. 

*M  Sugd.  Vend.  (8th  Am.  ed.)  466,  semble,  citing  Wilaon  v.  William*.  3 
Jur.  N.  S.  810.  Davis  v.  Parker.  14  Allen  (Mass.),  94;  Woodbury  v.  Luddy, 
14  Allen  (Mass.),  1;  92  Am,  Dec.  731.  Wright  v.  Young,  6  Wis.  127;  70  Am. 
Dec.  453.  Sanborn  v.  Nook  in,  20  Minn.  178.  Troutman  v.  Gowing,  10  Iowa, 


RIGHT  OF  PURCHASER  TO  TAKE  TITLE  WITH  COMPENSATION.     539 

the  parties  contain  no  stipulation  for  a  deed  with  a  covenant 
against  incumbrances,  and  there  is  no  provision  in  the  contract 
as  to  the  contingent  right  of  dower  of  the  vendor's  wife,  the  pur- 
chaser, knowing  of  the  existence  of  such  right,  cannot  insist  upon 

415;  Leach  v.  Forney,  21  Iowa,  271;  80  Am.  Dec.  574;  Presser  v.  Hildebrand, 
23  Iowa,  484;  Zebley  v.  Sears,  38  Iowa,  507.  Wingate  v.  Hamilton,  7  Ind. 
73.  See,  also,  Wilson  v.  Brumfield,  8  Bl.  (Ind.)  146;  Baker  v.  Railsback,  4 
Ind.  553;  Hazelrig  v.  Hutson,  18  Ind.  4&1 ;  Martin  V.  Merritt,  57  Ind.  34; 
26  Am.  Rep.  45.  An  ingenious  view  of  this  question  has  been  taken  in  a  note 
to  the  case  of  Humphrey  v.  Clement,  44  111.  (2d  edi.)  300.  The  annotator 
concludes  that  a  case  in  which  the  release  of  the  contingent  right  of  dower 
cannot  be  procured,  is  one  for  decreeing  damages  against  the  vendor  rather 
than  compensation  or  indemnity  to  the  purchaser;  and  for  this  purpose  he 
considers  it  unnecessary  that  the  value  of  the  contingent  right  of  dower  shall 
be  capable  of  computation.  "  The  damages  would  be  the  injury  to  the  vendee 
by  virtue  of  being  obliged  to  take  the  estate  subject  to  the  inchoate  right, 
not  the  value  of  the  dower  to  the  wife.  If  a  jury  in  an  action  at  law  could 
estimate  the  injury  to  the  vendee  at  $250,  why  could  not  a  chancellor  esti- 
mate the  deduction  which  should  be  made  from  the  purchase  money  at  the 
use  of  the  $250  so  long  as  the  wife  should  live,?"  It  has  been  since  held  in 
this  State,  that  the  purchaser  cannot  insist  upon  a  conveyance  with  abate- 
ment of  the  purchase  money  to  the  extent  of  the  present  value  of  the  inchoate 
right  of  dower.  Cowan  v.  Kane,  211  111.  572;  71  N.  E.  Rep.  1097.  In  Heim- 
burg  v.  Ismay,  3'5  N.  Y.  Super.  Ct.  35,  it  was  held  that  an  inchoate  right  of 
dower  in  the  wife  of  the  vendor  was  an  incumbrance  constituting  a  breach 
of  a  contract  to  convey  free  from  incumbrances;  and  that  the  purchaser  was 
entitled  to  more  than  nominal  damages,  the  vendor  having  entered  into  the 
contract  with  full  knowledge  that  his  power  to  convey  was  contingent.  See, 
also,  Williams  v.  Pope,  Wright  (Ohio),  406;  Reynolds  v.  Clark,  Wright 
(Ohio),  656. 

The  cases  in  which  the  right  of  the  purchaser  to  specific  performance  with 
abatement  of  the  purchase  money,  or  decree  for  damages'  on  account  of  an 
inchoate  right  of  dower,  is  dlenied,  have  been  in  some  instances  rested  upon 
the  supposed  want  of  means  for  ascertaining  the  amount  which  the  pur- 
chaser may  detain;  iand  in  others,  upon  the  idea  that  the  wife  is  in  effect 
morally  coerced  to  join  in  the  deed,  by  a  decree  directing  that  her  husband 
shall  pay  damages  in  the  event  of  her  refusal.  Bitner  v.  Brough,  1  Jones 
(Pa.),  138;  Riddleberger  v.  Mintzer,  7  Watts  (Pa.),  143;  Wilier  v.  Weyand, 
2  Grant  (Pa.),  103;  Shurtz  v.  Thomas,  8  Barr  (Pa,),  363;  Clark  v.  Seirer, 
7  Watts  (Pa.),  107;  32  Am.  Deo.  745;  Riesz's  Appeal,  73  Pa.  St.  485;  Burk's 
Appeal,  75  Pa.  St.  141;  15  Am.  Rep.  587;  Burk  v.  Serrill,  80  Pa.'  St.  413; 
21  Am.  Rep.  105.  Lucas  v.  Scott,  41  Ohio  St.  636.  People's  Sav.  Bank  v. 
Parisette,  68  Ohio  St.  450;  67  N.  E.  Rep.  896;  Phillips  v.  Stanch,  20  Mich. 
369.  Hopper  v.  Hopper,  16  N.  J.  Eq.  147.  Hawralty  v.  Warren,  18  N.  J. 
Eq.  124;  Reilly  v.  Smith,  25  N.  J.  Eq.  158.  Humphrey  v.  Clement,  44  111. 
299;  Cowan  v.  Kane,  211  111.  572;  71  N.  E.  Rep.  1097.  Barbour  v.  Hickey, 


540  MARKETABLE   TITLE  TO  REAL   ESTATE! 

a  conveyance  with  abatement  of  the  purchase,  money  as  indem- 
nity.30 The  sum  which  the  purchaser  may  detain  is  the  money 
value  of  the  contingent  interest  of  the  wife,  calculated  according 
to  some  one  of  the  standard  tables  of  longevity.31  It  is  to  be 
observed  that  the  abatement  of  the  purchase  money  does  not  affect 


2  App.  Gas.  (Dijrt.  of  Col.),  207;  Sternberg  v.  Mc-Govern,  56  N.  Y.  12;  Dixon 
v.  Rice,  16  Hun:  (X*.  V.),  422.  Swepson  v.  Johnston,  84  N.  C.  449.  Stewart 
v.  Gillette,  139  N".  Y.  Supp.  5S3;  79  Misc.  Rep.  93;  Dulrymple  v.  Cole,  170 
X.  C.  102;  86  S.  E.  988;  Bethell  v.  McKinncy,  164  N.  C.  71;  80  S.  E.  162; 
Haden  v.  Falls,  115  Va.  779;  80  S.  E.  576;  Leo  v.  Deitz,  63  Oreg.  261;  127 
Pac.  550.  Kuratli  v.  Jarkson,  60  Oreg.  203;  118  Pac.  192;  Ann.  Cas.  1914  A, 
203;  Long  v.  Chandler,  10  Del.  Ch.  339;  92  Atl.  256;  Crosby  v.  Evans  (Mo. 
App.)  195  S.  W.  514;  Bartak  v.  Isvolt,  261  111.  279;  103  N.  E.  967.  In  Leo  v. 
Deitz,  63  Oreg.  261  ;  127  Pac.  550,  it  was  hed  that  the  purchaser  could  not  be 
compelled  to  take  the  title  with  abatement  of  the  purchase  money  as  protec- 
tion against  a  possible  claim  on  the  part  of  the  husband  to  an  estate  by  the 
curtesy  in  the  property.  Tn  Sfernberger  v.  McGovrrn,  56  N.  Y.  12,  which 
was  a  suit  to  enforce  specific  performance  of  a  contract  for  the  exchange 
of  lands,  it  was  held  that  the-  plaintiff  could  not  have  a  decree  against  the 
defendant,  whose  wife  refused  to  join  in  a  conveyance  by  him,  for  the  differ- 
ence between  the  value  of  the  property  with  a  release  of  the  inchoate  right  of 
dower,  and  the  value  without  such  release.  Tn  Dixon  v.  Rice,  16  Hun  (X.  Y.), 
422,  and  Martin  v.  Colby,  42"  Hun  (X.  Y.),  1,  it  was  held  that  if  the  wife 
refused  to  join  in  the  conveyance,  the  purchaser  could  not  take  a  conveyance 
from  the  husband  alone  with  damages  or  compensation  for  the  wifeia  contin- 
gent right  of  dower,  but  must  abandon  his  claim  for  specific  performance 
and  sue  at  law  for  damages  alone.  It  may  be  doubted  whether  a  court  in 
such  a  case,  as  against  a  vendor  acting  in  good  faith,  would  give  damages 
beyond  the  present  value  of  the  wife's  inchoate  right  of  dower.  And  if  the 
plaintiff  muld  recover  such  damages  at  law,  no  reason  is  perceived  why  the 
same  should  not  be  allowed  by  way  of  compenKation  or  abatement  in  his  suit 
for  specific  performance,  as  a  matter  of  ancillary  relief. 

••People's  Sav.  Bank  v.  Parisette,  68  Ohio  St.  450;  67  X.  E.  Rep.  896. 

**The  rule  for  calculating  the  present  value  of  the  wife's  contingent  right 
of  dower  was  thus  stated  in  Jackson  v.  Edwards,  7  Paige  Ch.  (X!  Y.)  408. 
"Ascertain  the  present  value  of  an  annuity  for  her  life  equal  to  the  interest 
in  the  third  of  the  proceeds  of  the  estate  to  which  her  contingent  right  ef 
dower  attaches,  and  then-  deduct  from  the  present,  value  of  the  annuity  for  her 
life,  the  value  of  a  KJmilar  annuity  depending-  upon  the  joint  lives  of  herself 
and  her  husband;  and  the  difference  hetwwn  those  two  sumo  will  he  the 
present  value  of  her  contingent  right  of  dower  (  M/rKean's»Pr.  L,  Tables,  2.3, 
S  4;  Hendry'a  Ann.  Tables.  87,  Prob.  4.)"  Of  course  in  a  unit  for  spw.ific 
performance  agairurt  the  husband,  the  object  in  ascertaining  the  present  value 
of  the  wife's  interest,  is  not  to  compel  her  to  lake  it,  but  to  arrive  at  the 
sum  which  the  purchaser  may  detain  an  an  indemnity  against*  possible  claim 
of  dower. 


EIGHT  OF  PURCHASER  TO  TAKE  TITLE  WITH  COMPENSATION.     541 

the  rights  of  the  wife.  She  is  no  party  to  the  proceeding,  and, 
if  she  were,  she  could  not  be  compelled  to  accept  a  sum  of  money 
in  lieu  of  her  contingent  right  of  dower ;  for  that  in  effect  would 
be  to  compel  her  to  perform  specifically  the  contract  of  her  hus- 
band.32 As  to  the  rights  of  the  vendor;  it  is  true  that  he  may 
survive  his  wife,  by  which  the  necessity  for  any  indemnity  would 
be  removed ;  but  the  decree  might  provide  for  that  contingency  by 
directing  that  the  purchaser  shall  give  bond  with  security  to  pay 
the  abated  sum  with  interest  upon  the  death  of  the  wife  living 
the  husband.33  As  to  the  rights  of  the  purchaser;  it  is  true 
that  the  right  of  dower  may  become  consummate  by  the  death  of 
the  husband  immediately  after  the  deed  has  been  accepted,  so 
that  the  amount  abated  from  the  purchase  money  might  prove 
an  inadequate  indemnity ;  but  that  is  the  purchaser's  concern,  and 
if  he  chooses  to  accept  a  conveyance  upon  those  terms  there  is 
nothing  of  which  he  can  complain.  The  sum  abated  from  the 
purchase  money,  as  an  indemnity  against  the  wife's  inchoate  right 
of  dower,  remains,  of  course,  in  the  hands  of  the  purchaser,  and 
is  not  paid  over  to  the  wife  in  satisfaction  of  her  interest  unless, 
indeed,  she  should  choose  to  accept  it.  The  courts  cannot  compel 
her  to  part  with  her  contingent  interest.34  If  the  vendor's  wife 
refuse  to  join  in  the  deed  through  his  fraudulent  procurement, 
specific  performance  will  be -granted  the  vendee  with  indemnity 
against  the"  wife's  interest.30 

The  purchaser  cannot  require  the  vendor  to  execute  a  bond  to 
protect  him  against  any  claim  to  dower  in  the  future,  since  that 
would  be  to  make  for  the  parties  an  agreement  which  they  did  not 
make  for  themselves.36 

In  some  of  the  States  it  has  been  held  that  the  husband  cannot 

32  Cases  cited,  ante,  note  29. 

"  Humphrey  v.  Clement,  44  111,  2.99. 

34  In  Maine,  however,  she  is  compelled  by  statute  to  accept  a  certain  pro- 
portion  of  the  purchase  money  in   satisfaction    of   her   contingent  interest, 
provided  the  sale  be  approved  by  one  of  the  Justices  of  the  Supreme  Court. 
Handy  v.  Rice,  98  Me.  504;  57  Atl.  Rep.  847. 

35  Young  v.  Paul,  10  N.  J.  Eq.  401;  54  Am.  Dec.  456,  where  the  wife  assented 
to  the  sale  in  the  first  instance,   and  afterwards,  at  the  instigation  of  her 
husband,  refused  to  relinquish  her  right.     Peeler  v.  Levy,  26  N.  J.  Eq.  330. 

39  Long  v.  Chandler,  10  Del.  Ch.  339 ;  92  Atl.  256. 


542  MARKETABLE   TITLE   TO   HEAL   ESTATE. 

be  compelled  to  specifically  perform  a  contract  for  the  sale  of  the 
"  homestead  "  estate  of  himself  and  wife.  This,  however,  is  not 
upon  the  ground  that  there  is  no  means  of  ascertaining  the  value 
of  the  interest ;  but  for  the  reason  that  her  interest  is  vested  and 
certain,  and  cannot  be  taken  or  sold  without  her  consent.37  Where 
the  right  of  dower  has  become  consummate  by  the  death  of  the 
husband,  there  can  be,  of  course,  no  doubt  of  the  right  of  the  pur- 
chaser to  a  decree  against  her  heirs  for  a  specific  performance, 
with  compensation.38  While  the  better  opinion  seems  to  be  that 
the  purchaser  may  elect  to  take  the  title  with  an  abatement  of 
the  purchase  money  as  an  indemnity  against  a  possible  claim  for 
dower  in  the  future,  he  cannot  be  compelled  so  to  do.  It  is  well 
settled  that  a  purchaser  cannot  bo  compelled  to  take  the  property 
with  indemnity  against  any  loss  that  may  accrue  from  a  defective 
title.19 

§  200.  EXCEPTIONS  TO  GENERAL  RTTLE.  The  exceptions  to 
the  rule  that  the  purchaser  may  elect  to  take  such  title  as  the 
vendor  can  make,  with  compensation  for  defects,  are,  where  the 
vendor's  title  being  good  only  to  a  small  portion  of  the  estate. 
e,  g.,  the  mansion  house  and  curtilage,  the  effect  of  enforcing  the 
rule  would  be  to  leave  the  large  appurtenant  estate,  sold  with  the 
mansion,  on  the  hands  of  the  vendor  with  the  proclaimed  doubtful 
title.  In  such  a  case,  according  to  Sir  Edward  Sugden,  the  rule 
does  not  apply.40  Neither  does  it  apply  where  the  conditions  of 
sale  provide  that  the  vendor  may  rescind  if  the  title  be  found 
defective.41  It  has  also  been  held  that  the  purchaser  cannot  have 

"Brewer  v.  Wall,  23  Tex.  585;  7ft  Am.  Dec.  76;  Allison  v.  Shilling.  27 
Tex.  450;  80  Am.  Dec.  622. 

"Sprinplc  v.  Shield*,  17  Ala.  205.  In  this  cose  it  was  held  that  the  pur- 
chaser could  not  demand  a  gross  Hum  as  the  present  value  of  the  dower  right, 
but  should  be  relieved  from  payment  of  one-third  of  the  value  of  the  land  at 
the  time  of  the  contract,  until  the  death  of  the  dowreM. 

*  Post,  5  327. 

*M  Sugd.  Vend.  (8th  Am.  ed.l  480.  In  Bailey  v.  James.  11  Orat.  (Va.) 
468;  62  Am.  Dec.  650,  H,  was  held  that  if  a  contract  for  the  sale  of  land  is 
entire,  for  a  specific  sum  of  money,  and  the  title  to  a  part  of  it  fails  from  a 
cause  of  which  both  parties  were  ignorant,  it  is  ground  for  rescinding  the 
whole  contract;  and  the  vendee  cannot  elect  to  take  the  part  to  which  the 
title  is  gcxxl,  and  rescind  as  to  the  other  part. 

"  Williams  v.  Edwards,  2  Sim.  78. 


EIGHT  OF  PUECHASER  TO  TAKE  TITLE  WITH  COMPENSATION.     543 

specific  performance  with  compensation  if  he  knew  at  the  time 
the  contract  was  made  that  the  interest  of  the  vendor  was  partial, 
or  that  his  title  was  defective.42  This  exception,  however,  seems 
not  to  have  been  recognized  in  those  cases  in  which  specific  per- 
formance in  favor  of  the  purchaser  with  indemnity  against  an 
inchoate  right  of  dower  has  been  decreed.43  Nor  does  the  rule 
apply  where,  by  reason  of  the  purchaser's  delay  in  seeking  specific 
performance  the  vendor  has  been  placed  in  a  worse  situation  than 
if  he  had  been  called  upon  to  perform  his  contract,  at  the  time 
stipulated.44  Nor  where  the  contract  is  to  convey  the  fee  upon 
a  contingency  which  has  not  happened ;  in  such  case  the  purchaser 
cannot  insist  on  the  conveyance  of  a  less  estate,  with  abatement 
of  the  purchase  money.45  Nor  where  the  defect  in  the  title  is 

42Pomeroy  Sp.  Perf.  §  442.  Lucas  v.  Scott,  41  Ohio  St.  635.  Love  v.  Camp, 
6  Ired.  Eq.  (N.  C.)  209.  James  v.  Lichfield,  L.  E.,  9  Eq.  51.  Moore  v. 
Lutjeharms,  91  Neb.  548;  136  N.  W.  343;  Knox  V.  Spratt,  23  Fla.  64;  6  So. 
024;  Joym-r  v.  Crisp,  158  1ST.  C.  190;  73  S.  E.  1004;  Peeler  v.  Levy,  26 
X.  J.  Eq.  32,  where  it  was  said:  "Generally  compensation  will  be  denied 
where  the  party  asking  it  had  notice  at  the  time  the  contract  was  made,  that 
the  vendor  was  agreeing  for  more  than  he  could  give  or  convey,  and  it  appears 
the  vendee  has  not,  in  consequence  of  the  contract,  placed  himself  in  a  situa- 
tion from  which  he  cannot  extricate  himself  without  loss.  2  Chitty  Cont. 
(llth  Am.  edl.)  1490;  Fry  on  Spec.  Perf.  §  795,  n.  2.  Nelthrop  v.  Howgate, 
1  Coll.  223.  Harnett  v.  Yielding,  2  Sch.-&  Lef.  559.  Wiswall  v.  McGowan, 
1  Hoff.  Ch.  (N".  Y.)  131.  Thomas  v.  Bering,  1  Keen,  747.  This  rule  has  the 
support  of  the  clearest  dictates  of  justice.  It  is  unconscionable  for  one  man 
to  take  the  promise  of  another  to  do  a  particular  thing,  which  the  promisee 
knows  art  the  time  the'  promise  was  made,  the  promisor  cannot  perform  except 
by  the  consent  or  concurrence  of  a  third  person,  and  then,  when  consent  or 
concurrence  is  refused1  by  the  third  person  in  good  faith,  to  demand  a  strict 
and  literal  fulfillment  of  the  promise.  He  contracts  with  full  notice  of  the 
uncertainty  or  hazard  attending  the  promisor's  ability  to  perform,  and  has 
no  right,  therefore,  to  ask  the  extraordinary  aid  of  a  court  of  conscience  in 
repairing  the  loss  he  has  sustained  by  non-fulfillment  of  the  contract." 

43  Ante,  "  Indemnity  against  Dower,"  §  199.  And  see  Frey  Sp.  Perf.  (3d  Am. 
ed.)  §  1231,  where  it  is  said  that  the  fact  that  the  purchaser  was  from  the 
first  aware  of  objections  to  the  title,  will  not,  as  a  general  rule,  affect  his 
right  to  require  a  conveyance  with  compensation  for  defects. 

"Voorhees  v.  De  Meyer,  2  Barb.  (1ST.  Y.  S.  C.)  37.  Planer  v.  Eq.  Life 
Assur.  Soc.  (X.  J.  Eq.),  37  Atl.  Rep.  668. 

45  Weatberford  v.  James,  2  Ala.  170.  Here  the  vendor  agreed  to  sell  the 
interest  of  his  wife,  an  Indian  woman,  provided  he  could  obtain  authority 
from  congress.  He  failed  in  this,  and  the  purchaser  asked  that  he  be  com- 
peted to  convey  his  life  estate  as  tenant  by  the  curtesy.  Specific  perform- 
ance was  refused. 


544  MARKETABLE   TITLE   TO    REAL    ESTATE. 

such  that  the  resulting  difference  in  value  between  the  interest 
contracted  for  and  that  to  be  conveyed  is  not  susceptible  of  com- 
putation.46 Where  the  contract  provides  that  if  the  title  he  not 
good  and  cannot  be  made  good  within  a  specified  time  the  agree- 
ment  shall  be  at  an  end  when  that  time  expires,  the  vendor  cannot 
if  the  title  be  incapable  of  being  perfected  within  the  time  agreed, 
elect  to  take  such  title  as  the  vendor  can  make;  for  the  contract 
in  that  event  is  absolutely  at  an  end.47  So,  also,  where  the  agree- 
ment provides  that  if  counsel  shall  be  of  the  opinion  that  the  title 
is  not  marketable  the  contract  shall  be  void,  and  counsel  reports 
the  title  unmarketable  as  to  part  of  the  property,  the  purchaser 
cannot  elect  to  take  the  rest  with  compensation  for  defects.48 

The  right  of  the  purchaser  to  take  such  title  as  the  vendor  ran 
make  is  of  course  dependent  upon  the  existence  of  a  valid  contract 
between  the  parties.  The  contract  consists  in  an  offer  to  sell  on 
the  one  part  and  an  unconditional  acceptance  on  the  other,  and 
•will  not  be  deemed  complete  if  the  acceptance  be  conditioned  upon 
the  state  of  the  title,  to  be  afterwards  ascertained.  Thus,  where 
the  offer  to  sell  was  accepted  "provided  the  title  is  perfect/'  the 
court  refused  to  compel  the  vendor  to  accept  the  purchase  money 
and  convey  the  property  to  the  purchaser,  holding  the  contra* 
be  incomplete.49  But  it  has  been  held  that  a  condition  in  the  oiler 
stands  upon  a  different  ground  from  a  condition  in  the  acceptance. 
Thus,  where  the  vendor  proposed  that  the  purchaser  should  forfeit 
$500  on  failure  to  perform  the  contract  in  thirty-five  days,  pro- 
vided a  certain  lawyer  pronounced  the  title  good,  and  the  pnr- 
cha.-er  agreed  to  such  proposition  it  was  held  that  the  etui  tract  was 
complete,  and  that  the  vendor  could  not  insist  that  there  wa 
unconditional  acceptance  of  his  offer.50 

It  has  been  said  that  if,  at  the  time  of  the  contract,  the  pur- 
chaser is  fully  aware  that  the  vendor  cannot  execute  th' 
ment,    it   will   be  presumed  that  the   agreement   is   founded    in 
mistake;    and   the   purchaser  cannot    insist    upon    a    performance 

"Milmoe  v.   Murphy.  M   ML  Rep.  292;    65  X.  J.  Kq.  767. 
''  IVmt,  this  chapter;   Markry  v.  ATTH-S,  .Tl    Minn.   103. 

•  William*  v.  Edwards.  2  Sim.  78. 

"Corcoran  v.  White.  117  111    il«*;  7  N.  E.  Rep.  526;  57  Am.  Rep.  858. 

*  Rowland  v.  Bradley,  38  N.  J.  Eq.  288. 


EIGHT  OF  PURCHASEK  TO  TAKE  TITLE  WITH  COMPENSATION.     545 

as  to  the  interest  to  which  the  vendor  may  be  actually  entitled.51 
The  purchaser  seeking  specific  performance  with  compensation 
for  defects,  must  show  not  only  that  he  has  performed  or  offered 
to  perform  all  that  is  to  be  done  on  his  part,  but  that  before  the 
filing  of  his  bill,  he  had  by  notice  and  demand  given  the  vendor 
an  opportunity  to  perform  the  contract  and  make  the  appropriate 
abatement  or  compensation.  He  should  not  needlessly  involve 
the  vendor  in  the  expense  of  a  chancery  suit.52  If  the  purchaser 
elect  to  take  title  to  part  of  the  premises  with  compensation  for 
part  to  which  title  cannot  be  had,  he  must  take  the  whole  of  that 
part  to  which  the  title  is  good.  He  cannot  require  a  conveyance 
of  choice  portions,  and  reject  a  deed  which  conveys  all  that  part 
to  which  the  vendor  has  title.53 

§  201.  BIGHT  OF  VENDOR  TO  RESCIND  WHERE  THE  TITLE 
IS  DEFECTIVE.  The  purchaser  cannot,  of  course,  elect  to  take  the 
title  such  as  it  is,  if  the  vendor  has  reserved  the  right  to  rescind 
the  contract  in  case  it  should  appear  that  the  title  is  defective.04 
But  if  the  contract  provide  that  the  purchase  money  shall  be 
refunded  if  the  title  prove  defective,55  or  that  in  such  event  the 

51 1  Sugd.  Vend.  (8th  Am.  ed.)  467,  citing  Lawrenson  v.  Butler,  1  Sch.  & 
Lef.  13;  Montlock  v.  Butler,  10  Vea.  292;  Golyer  v.  Clay,  7  Be*av.  189.  Planer 
v.  Eq.  Life  Assur.  Soc.  (1ST.  J.  Eq.)  37  Atl.  Rep.  668.  But  see  Fry  Sp.  Perf. 
(3d  Am.  ed.)  §  1231. 

52  Bell  v.  Thompson,  34  Ala.  633 ;  Long  v.  Brown,  4  Ala.  626. 

53  Perkins  v.  Hadley,  4  Hayw.    (Tenn.)    148. 

54Mawson  v.  Fletcher,  L.  R.,  10  Eq.  212;  Woolcot  v.  Peggie,  L.  R.,  15  App. 
Cas.  42.  Old  Colony  Tr.  Co.  v.  Chauncey,  214  Mass.  271;  101  N.  E.  423.  A 
provision  that  the  contract  shall  be  void  if  the  vendor  be  unable  to  perfect 
the  title  within  30  days,  is  for  the  benefit  of  the  purchaser  and  cannot  be 
availed  of  by  the  vender.  Leonard  v.  King,  (Tex.  Civ.  App.)  164  S.  W.  1110. 
Where  the  parties  stipulated  for  the  removal  of  liens  within  a  'specified 
time,  and  in  case  of  the  inability  of  the  vendor  to  remove  them  in  that 
time,  the  sale  to  be  rescinded,  it  was  held  that  the  vendor  was  not  entitled 
to  rescind  by  showing  that  he  had  brought  a  suit  to  vacate  the  liens,  when 
he  knew  that  the  suit  could  not  be  determined  within  the  specified  time, 
and  when  he  might  have  removed  the  liens  by  paying  them  off.  Sykes  v. 
Robbins,  125  Fed.  Rep.  433. 

S5Hale  v.  Cravener,  128  111.  408;  21  N.  E.  Rep.  534.  See,  also,  Sloane  v. 
Wells,  (111.)  30  N.  E.  Rep.  1042.  Hale  v.  Cravener,  supra,  was  distinguished 
in  Terte  v.  Maynard,  48  Mo.  App.  4631,  where  the  following  proposition  was  in 
substance  laid  down:  If  the  contract  contains  no  distinct  and  independent 
agreement  to  convey,  and  such  agreement  as  it  does  contain  is  conditioned 

69 


546  MARKETABLE   TITLE   TO   REAL   ESTATE. 

purchaser  shall  not  be  required  to  pay  the  purchase  money,58  the 
\xndor  cannot  avail  himself  thereof  to  rescind  the  contract  with- 
out the  consent  of  the  purchaser.  Inasmuch  as  the  purchaser  has, 
generally,  the  right  to  take  such  title  as  the  vendor  can  make,  or  to 

•  take  title  to  a  part  with  compensation  for  a  deficiency,  it  would 
seem  that  the  vendor  could  in  no  case  elect  to  rescind  the  contract 
on  the  ground  that  the  title  had  failed,57  unless  he  could  show  a 
mutual  mistake  of  fact  or  fraud5*  on  the  part  of  the  purchaser 
with  respect  to  the  title,  or  unless  he  had  reserved  the  right  to 
rescind   if  the  title  should  prove  defective.      Even   though   he 
reserve  that  right,  it  has  been  held  that  he  must  make  reasonable 
efforts  to  perfect  the  title  before  he  will  be  permitted  to  rescind."' 
Where  the  parties  continued  their  negotiations  for  more  than  a 
year  after  maturity  of  the  right  to  rescind,  it  was  held  that  they 
thereby  waived  that  right.60 

In  England  it  is  customary  to  insert  in  the  common  conditions 
of  sale  a  provision  to  the  following  effect:  "If  the  purchaser 
shall  insist  on  any  objection  or  requisition  in  respect  of  the  title 
which  the  vendor  shall  be  unable  or  unwilling  fo  remove  or  comply 
with,  the  vendor  shall  .be  at  liberty,  by  notice  in  writing,  to  rescind 
this  agreement."  In  a  case  in  which  there  was  a  private  right 
of  way  over  the  premises,  of  which  both  parties  were  ignorant,  it 
was  held  that  such  a  condition  entitled  the  vendor  to  rescind, 

•  on  there  being  a  pood  title,  and  the  contract  contains  a   further  provision 
that  the  agreement  shall  be  null  and  void  if  the  title  turns  out  to  be  defective 
and  cannot  be  perfected  within  a  specified  time,  the  vendor  cannot  be  held 
liable  in  damages  if  the  title  be  defective  and  cannot  be  cured  within  such 
time. 

"Robert*  v.  Wyatt.  2  Taunt.  268. 

"Rohr  v.  Kiendt,  3  W.  &  S.   (Pa.)  583;  30  Am.  Der.  53, 

"If  the  parties  during  their  negotiations  assume  the  existence  of  an  ineum- 
branre  on  the  estate  or  of  a  <lefect  in  the  title,  whereby  the  vendor  is  induced 
to  sell  at  a  lower  price,  and  4he  purchaser  knows  that  neither  the  incumbranee 
nor  the  defect  exists,  it  is  presumed  that  he  would  be  deemed  guilty  of  a 
fraud  upon  the  vendor  if  he  did  not  disclose  hi*  information.  But  in  such  a 
rase  it  ha«  been  held  that  <h«  court  would  not  rescind  the  contract,  if  the- 
seller  might  easily  have  ascertained  the  facti  as  to  the  incumbrance.  Ilrnko 
v.  Collins,  5  How.  L.  (MisO  253. 

"Bibb  v.  Wilson,  31  Mis«.  824.  But  see  Old  Colony  Tr.  Co.  v.  Chauncey, 
214  Mans.  271;  101  \  E.  423. 

"Hazrard  v.  Morrison.   (TV*.  Civ.  App.)    130  S.  \V.  244. 


RIGHT  OF   PURCHASER   TO  TAKE  TITLE   WITH    COMPENSATION.       547 

though  another  clause  of  the  contract  provided  that  if  any  error 
in  the  description  of  the  property  be  found,  the  same  should  not 
annul  the  sale,  but  compensation  should  ba  allowed  in  respect 
thereof.61  If  the  contract  has  been  executed  by  a  conveyance  with 
covenants  of  warranty,  the  vendor  cannot,  in  the  absence  of  fraud 
or  mistake,  rescind  on  the  ground  that  the  title  has  failed.  The 
purchaser  has  a  right  to  retain  the  possession  and  defeat  the 
adverse  claim  if  he  can,  or  if  evicted,  to  recover  on  the  warranty 
of  the  grantor.62  But  if  judgment  in  ejectment  be  recovered 
against  the  grantee,  and  the  grantor  satisfies  his  warranty  by 
returning  the  purchase  money,  with  interest,  to  the  grantee,  he 
will  be  entitled  to  a  reconveyance  of  the  premises.63 

If  the  vendor  ask,  and  is  allowed,  time  in  which  to  perfect  the 
title,  he  cannot  afterwards  elect  to  rescind  and  put  the  purchaser 

61  Ashburner  v.  Sewell,  L.  R.,  3  Ch.  Div.  405  (1891).  We  have  seen  that  in 
America  the  purchaser  cannot  insist  on  specific  performance  where  the  con- 
tract provides  that  the  agreement  -shall  be  at  an  end  if  the  title  he  found  to 
be  not  good.  Antie,  §  201.  In  a  case  in  which  the  contract  provided  that  if 
the  vendor  should  be  unable  or  unwilling  to  remove  the  objections  to  the  title, 
he  might  annul  the  sale  and  return  the  purchaser's  deposit  without  interest 
or  costs,  notwithstanding  any  previous  negotiation  or  litigation,  it  was  held 
that  the  vendor  could!  not,  for  the  purpose  of  avoiding  costs,  exercise  this 
power  after  judgment  had  been  rendered  against  him  for  the  deposit  at  the 
suit  of  the  purchaser.  In  re  Arbib,  L.  R.,  1  Ch.  Div.  601  (1891). 

"Trevino  v.  Cantu,  61  Tex.  88,  the  court  saying:  "No  allegation  of  fraud 
on  the  part  of  the  purchaser  is  made,  nor  is  it  charged  that  there  was  any 
mistake  of  fact  occurring  at  the  time  of  the  conveyance  made  between  the 
parties.  It  is  averred  that  the  vendor  was  mistaken  in  supposing  that  the 
original  grantee,  under  whom  he  claimed,  had  a  good  title  from  the  State. 
Whether  this  was  a  mistake  of  fact  or  of  law  does  not  appear.  And  even  if 
the  former,  it  is  against  just  such  mistakes  that  purchasers  protect  them- 
selves by  requiring  covenants  of  warranty  from  their  vendors.  It  would  be 
the  height  of  injustice  to  allow  a  warrantor  to  be  relieved  from  an  obligation 
on  account  of  the  happening  of  a  contingency  against  which  the  obligation  was 
specially  intended  to  provide.  In  this  case  it  would  relieve  the  vendor  from 
the  payment  of  a  sura  which  he  virtually  admits  in  his  pleadings  he  justly 
owed  the  purchaser  under  the  express  terms  of  the  contract,  the  contingency 
iipon  which  it  was  to  be  paid  having  occurred.  It  is  not  the  province  of 
equity  to  change  the  contract  of  a  party  and  relieve  him  from  an  obligation 
fairly  undertaken,  especially  after  he  has  received  the  consideration  which 
induced  him  to  accept  it.  It  can  compel  execution  of  agreements,  but  not 
substitute  one  agreement  for  another.  Wilgus  v.  Hughes,  2  A.  K.  Marsh. 
(Ky.)  328. 

"Williams  v.  Pendleton,  1  T.  B.  Mon.    (Ky.)    188. 


548  MAKKKTABLE   TITLE    TO    KEAL    ESTATE. 

to  his  action  for  damages  in  lieu  of  a  suit  for  specific  performance? 
of  the  contract.64 

The  vendor  electing  to  rescind  the  contract  where  he  has  reserved 
that  privilege,  must,  of  course,  return  the  purchase  money  if  any 
has  been  paid.65  He  cannot  maintain  an  action  to  remove  tin- 
cloud  on  his  title  arising  from  his  contract  with  the  purchaser 
until  he  has  returned  the  purchase  money,  or  any  obligations 
which  he  may  hold  for  the  same.66  On  rescission  of  a  contract. 
each  party  must,  as  far  as  possible,  be  placed  in  statu  quo, 

••Pi-ice  v.  Immel.  4S  Colo.  163;  109  Pac.  941. 

•Benson  v.   Shotwell,  87   Cal.  49;   25  Pac.  Rep.  249.     Drew  v.   Smith.   7 
Minn.  301  (231). 

"Dahl  v.  Pross,  6  Minn.  89   (38). 


CHAPTER  XIX. 

OF  THE  RIGHT  OF  THE  PURCHASER  TO  PERFECT  THE  TITLE. 

BY  THE  PURCHASE  OF  ADVERSE  CLAIMS.     §   202. 

BY  THE  DISCHARGE  OF  LIENS  OR  INCUMBRANCES.     §   203. 

SUBROGATION  OF  PURCHASER,     §   204. 

§  202.  BY  THE  PURCHASE  OF  ADVERSE  CLAIMS.  The  pur- 
chaser may  always  apply  the  unpaid  purchase  money  to  the 
acquisition  of  a  valid,  outstanding,  paramount  title  to  the  land.1 
But  he  cannot  use  the  title  so  acquired  to  defeat  the  vendor's  claim 
to  so  much  of  the  purchase  money  as  may  remain  unexpended  in 
his  hands,2  unless  he  has  been  legally  evicted,  and  has  repurchased 

^orbally  v.  Hughes,  59  Ga.  493.  Hill  v.  Samuel,  31  Miss.  306.  Ash  v. 
Holder,  36  Mo.  163.  It  is  said  in  this  case  that  the  rule  is  different  where  a 
conveyance  has  been  made  "  because  then  the  vendee  owes  the  vendor  no  faith 
or  allegiance,  but  holds  adversely  to  him  and  all  the  world." 

21  Warv.  Vend.  §§  13,  14;  1  Sugd.  Vend.  (8th  Am.  ed.)  533  (355),  where 
it  is  said:  "  If  a  right  be  outstanding  in  a  third  person,  which  the  purchaser 
relies  on  as  an  objection  to  the  title,  and  then  purchases  the  interest  for  his 
own  benefit,  the  court  will  not  permit  him  to  avail  himself  of  the  purchase 
against  the  vendor,  but,  allowing  him  the  price  paid  for  it,  will  compel  him 
to  perform  his  original  contract."  Citing  Murrell  v.  Goodyear,  21  Giff.  51; 
affd,,  1  DeG.,  F  &  J.  432;  Lawless  v.  Mansfield,  1  Dru.  &  War.  557.  Harper 
v.  Reno,  1  Freem.  Ch.  (Miss.)  323;  HilL  v.  Samuel,  31  Miss.  305;  Hardeman 
v.  Cowan,  10  Sm.  &  M.  (Miss.)  487;  Champlin  v.  Dotson,  13*  Sm.  &  M.  (Miss.) 
554;  53  Am.  Dec.  102;  Harkreader  v,  Clayton,  56  Miss.  383.  Mitchell  v. 
Barry,  4  Hayw.  (Tenn.)  136;  Meadows  v.  Hopkins,  19  Tenn.  (Meigs)  181; 
33  Am.  Dec.  140,  and  Tennessee  cases  there  cited.  Bond  v.  Montague  (Tenn. 
Ch.  App. ) ,  54  S.  W.  Rep.  65 ;  Lewis  v.  Boskins,  27  Ark.  61 ;  Strong  v.  Waddell, 
56  Ala.  471;  Mumford  v.  Pearce,  70  Ala.  452.  Beall  v.  Davenport,  4S  Ga. 
165 ;  15  Am.  Rep.  656.  Wilkinson  v.  Green,  34  Mich.  221.  Curran  v.  Banks, 
123  Mich.  594;  82  N".  W.  Rep.  247.  Cowdry  v.  Cuthbert,  71  Iowa,  733;  29 
N".  W.  Rep.  798,  where  the  purchaser  bought  in  a  tax  title  under  a  tax  sale 
made  prior  to  his  purchase.  Roller  v.  Effihger,  (Va.)  14  S.  E.  Rep.  337; 
Bibb  v.  Coal  &  Iron  Co.,  109  Va.  261;  64  S.  E.  32.  Morgan  v.  Boone,  4  Mon. 
(Ky.)  291,  298;  16  Am.  Dec.  153.  Cox  v.  Johnson,  18  Ky.  Law  Rep.  516; 
37  S.  W.  Rep.  154;  Fuson  v.  Lambdin,  23  Ky.  Law  Rep.  2245;  66  S.  W.  Rep. 
1004.  Wood  v.  Perry,  1  Barb.  (N.  Y.)  115,  134;  Foster  v.  Herkimer  Mfg.  Co., 
12  Barb.  (X.  Y.)  352.  RenshaAV  v.  Gans,  7  Pa.  St.  117.  Ramsour  v.  Shuler, 
2  Jones  Eq.  (N.  C. )  487,  a  case  in  which  the  purchaser  got  in  the  outstand- 
ing title  for  a  trifling  sum,  and  which  well  illustrates  the  justice  of  the  rule. 
There  was  a  conveyance  in  this  case.  The  rule  stated  in  the  text  is  the 

[549] 


~)0  MARKETABLE    TITLE    TO   KEAL   ESTATE. 

the  property  under  a  new  and  distinct  title.*  Of  course  he  may 
rescind  the  contract,  surrender  the  possession,  and  then  acquire 
the  adverse  title  and  set  it  up  against  the  vendor.4  But  for  obvious 
reasons  he  cannot  do  this  where  he  elects  to  affirm  the  contract. 
The  money  paid  by  him  to  the  adverse  claimant  will  be  treated, 
for  the  purpose  of  this  question,  as  money  paid  to  the  use  and 
benefit  of  the  vendor.  Hence,  it  follows  that  the  purchaser  cannot 
claim  the  benefit  of  the  title  so  acquired,  except  to  the  extent  of 
the  amount  disbursed  by  him  to  the  adverse  claimant,  such  amount 
to  be  availed  of  as  a  setoff  pro  tanto  to  the  unpaid  purchase 

same,  whether  the  contract  he  executory  or  executed.  See  cases  cited,  ante, 
«  168,  and  Rawle  Covts.  (5th  ed.)  §  192.  Baker  v.  Corbett,  28  Iowa,  317. 
The  purchaser  cannot  resist  the  payment  of  the  purchase  money  on  the  ground 
that  the  vendor  failed  to  procure  a  conveyance  from  a  tliird  person  having 
an  interest  in  the  land,  when  he  himself  (the  purchaser)  has  procured  a  con- 
veyance from  such  person.  Calkins  v.  Williams,  36  111.  App.  500.  A  pur- 
chaser at  a  judicial  sale,  who  is  permitted  to  retain  a  part  of  the  purchase 
money  with  which  to  pay  off  liens  on  the  land,  cannot  become  an  assignee 
of  the  liens,  or  subropated  to  the  benefit  thereof  further  than  is  necessary 
for  his  indemnity.  Men i fee  v.  Marye,  (Va.)  4  S.  E.  Rep.  726.  In  Louisiana, 
the  fact  that  the  purchaser  buys  in  the  premises  at  a  sale  under  an  incum- 
brance,  does  not  affect  his  right  to  recover  back  the  purchase  money  paid 
his  vendor.  Boyer  v.  Amet,  4  La.  Ann.  721. 

•Martin  v.  Atkinson,  7  Ga.  228;  50  Am.  Dec.  403.     Post,  §  219. 

•Hill  v.  Samuel,  31  Miss.  305;  Murphree  v.  Dogan,  (Miss.)  17  So.  Rep. 
231.  Grundy  v.  Jackson,  1  Litt.  (Ky.)  13.  Wilson  v.  Wetherby,  1  Nott  & 
McC.  (S.  C.)  373.  Thredgill  v.  Pintard,  12  How.  (U.  S.)  24,  31,  dictum; 
\Villi-.,n  v.  Watkins,  7  Wh.  (U.  S.)  53.  If  the  title  fail  and  the  purchaser 
repurchases  from  the  real  owner  and  enters  under  the  title  so  acquired,  which 
U  hoHtil«  to  that  of  the  vendor,  the  latter  cannot  compel  specific  performance 
of  the  contract.  Bensel  v.  Gray.  80  X.  Y.  517.  Stephen*  v.  Black,  77  Pa.  St. 
138.  In  Hanks  v.  Pickett,  27  Tex.  97,  it  was  held  that  a  purchaser  who 
decline*  to  do  an  act  nerennary  to  perfect  his  vendor's  title,  and  which  it  is 
hi*  duty  to  do,  cannot  recover  damage.**  against  his  vendor  for  failure  to  make 
title.  In  this  case  there  wan  an  implied  undertaking  that  the  purchaser 
•hould  appear  before  the  county  clerk  and  furnish  evidence  that  he  had  occu- 
pied the  land  a«  a  pre-emption  claim  for  a  certain  number  of  years.  See 
Walker  v.  Ogden,  1  Dana  (Ky. ).  247,  where  it  was  said  that  there  might  be 
C*M>*  whrre  the  purchaser  might  in  equity  avail  himself  of  a  paramount  title 
acquired  from  a  rtranger,  an  against  hi*  vendor. 

In  Shelly  v.  MUckehon,  (N.  Dak.)  63  N.  W.  Rep.  210,  the  vendor  aban- 
doned the  contract  and  «old  and  conveyed  the  premises  to  a  stranger,  and  the 
original  vendee  then  bought  in  the  stranger's  title  so  acquired,  and  it  was 
held  that  he  might  set  up  the  same  against  the  vendor  when  sued  upon  the 
original  purchase-money  notes. 


OF  THE  RIGHT   OF   THE   PURCHASER  TO   PERFECT   THE   TITLE.       551 

money,  if  any.3  A  familiar  illustration  of  these  principles  is 
afforded  by  the  rule  that  a  purchaser  from  one  who  holds  under 
a  void  patent  cannot  enter  and  locate  the  land  for  himself,  and 
then  seek  to  rescind  his  contract  and  avoid  the  payment  of  the  pur- 
chase money.6  Of  course  the  legal  title  acquired  by  the  purchase 
from  the  adverse  claimant  is  not  affected  by  the  relations  existing 
between  the  vendor  and  vendee.  Equity  may  compel  the  pur- 
chaser to  pay  the  vendor  the  balance  justly  coming  to  him  under 
the  contract,  but  cannot  divest  the  purchaser  of  the  title  fairly 
acquired.7  ]^or  does  the  purchase  of  an  outstanding  title  amount 
to  an  election  on  the  part  of  the  purchaser  to  rescind  the  contract, 
nor  deprive  him  of  his  rights  thereunder  against  the  vendor.8 

In  practice  the  application  for  specific  performance  where  the 
purchaser  has  acquired  the  adverse  title,  is  usually  accompanied 
by  a  prayer  for  an  injunction  against  proceedings  to  collect  the 
purchase  money.  Indeed,  the  acquisition  of  the  adverse  title  is 
more  frequently  availed  of  as  a  defense  to  an  action  for  the  pur- 
chase money  than  in  any  other  way;  but  of  course  there  may  be 
cases  in  which  it  may  be  to  the  purchaser's  interest  to  seek  affirma- 
tive relief  in  equity.  In  either  case  the  principle  upon  which 
relief  is  afforded  the  purchaser  is  the  same. 

The  purchaser  will  not  be  entitled  to  an  abatement  of  the  pur- 
chase money  on  account  of  an  outstanding  title  which  he  buys  in, 
unless  he  shows  that  such  title  was  necessary  to  protect  his  own, 
and  was  one  to  which  he  must  have  yielded  ;9  in  other  words,  the 

5  An  exception  to  this  rule  exists  where  the  outstanding  title  acquired  is 
that  of  the  State.  Ante,  §  168. 

"Searcy  v.  Kirkpatrick,  1  Overt.  (Teim.)  421.  Galloway  v.  Finley,  12  Pet. 
(U.  S.)  264,  where  held  also  that  he  could  not  be  allowed  for  expenses  of  the 
entry  and  survey,  the  same  having  been  made  for  the  purpose  of  defeating  his 
vendor's  title.  Thredgill  v.  Pintard,  12  How.  (U.  S.)  24.  Gallagher  v.  Wither- 
ington,  29  Ala.  420.  Frix  v.  Miller,  115  Ala.  476;  22  So.  Rep.  146.  Hollo- 
way  v.  Miller,  84  Miss.  776;  36  So.  Rep.  531.  See  post,  "Estoppel,"  §  219, 
and  ante,  §  168. 

'Language  of  AGNEW,  J.,  in  Thompson  v.  Adams,  55  Pa.  St.  479. 

8  Getty  v.  Peters,  82  Mich.  661 :  46  X.  W.  Rep.  1036,  where  it  was  held  that 
one  Who  buys  in  land  at  a  tax  sale  to  protect  himself  as  purchaser  is  not, 
when  sued  in  ejectment  by  the  vendor,  forced  to  rely  on  the  tax  title,  and 
estopped  from  claiming  under  the  contract  of  sale. 

9  Nicholson  v.  Sherard,  10  La.  Ann.  533.     In  Lee  v.  Porter,  5  Johns.  Ch. 


,~Ml2  MAKKETABLE    TITLE    TO    REAL    ESTATE. 

transaction  must  have  been  such  as  would  amount  to  a  constructive 
eviction.10  In  a  cast-  in  which  the  purchaser  bought  in  an  adverse 
claim,  and  it  did  not  appear  whether  the  title  so  acquired  was 
paramount  or  not,  it  was  held  that  the  court  erred  in  decreeing 
uirainst  the  purchaser  without  referring-  the  case  to  a  commissioner 
to  inquire  into  the  validity  of  the  adverse  claim."  The  price 
paid  by  the  purchaser,  however,  to  obtain  the  outstanding  title  is 
not  conclusive  of  the  value  of  that  title,  and  it  devolves  upon  him 
to  show  that  such  price  was  not  in  excess  of  the  value  of  the  out- 
standing interest.  11?  will  receive  credit  on  the  purchase  money 
only  for  the  actual  value  of  the  adverse  title  80  acquired.12  Where 
the  purchaser  buys  in  an  inchoate  right  of  dower,  he  will  not  be 
allowed  the  sum  so  expended,  unless  he  shows  that  such  sum  was 
the  fair  value  of  the  right.13 

In  America  it  is  a  common  practice  among  conveyancers  to 
procure  him  whose  outstanding  interest  has  been  gotten  in  to  join 
in  the  conveyance,  which,  as  to  such  party,  is  usually  a  quit  claim 
or  release,  few  persons  under  such  circumstances  being  willing  to 
convey  with  general  warranty.  This,  perhaps,  is  all  that  is  needed 
where  the  interest  is  present  and  subsisting.  If,  however,  the 
purchaser  desires  to  guard  against  a  future,  anticipated  or  pros- 
j>ective  interest  in  the  party,  he  should  require  either  a  conveyance 
with  general  warranty,  or  one  in  which  the  intent  to  convey  an 
estate  of  a  particular  description  is  clearly  manifested,  otherwise 
he  may  lose  the  estate,  under  the  general  rule  that  a  quit  claim  or 
release  is  insufficient  to  pass  an  after-acquired  estate.14 

§  203.  BY  THE  DISCHARGE  OF  LIENS  AND  INCUMBBANCES. 
The  purchaser  may  at  all  times  apply  the  unpaid  purchase  money 
to  the  discharge  of  valid  incumbrances  binding  the  land  in  his 

(K.  Y.)  268.  the  chancellor  doubted  whether  relief  should  be  given  the  pur- 
rhaw  in  oonHequence  of  an  outstanding  claim  which  he  for  greater  caution 
ehooH**  to  buy  in  l*>fore  it  hns  received  judicial  sanction,  in  a.  suit  to  which 
all  prntonH  in  intercut  were  partic*.  or  were  called  upon  to  a«»crt  their  title. 

"Ante.  |  150. 

"Smith  r.  l'arwm«.  33  W.  Va.  644:   11  S.  E.  Rep.  68. 

"I'«tr  v.   Mitchell.  23  Ark.  590;   70  Am.   Dec.   114. 

"McTord  v.   Ma«»*y.   155  111.   123:   30  X.  E.   Rep.  592. 

MPwt,  "  frtoppel."  |  218. 


OF   THE   RIGHT   OF   THE   PURCHASER  TO   PERFECT    THE   TITLE.        553 

hands,  and  which  his  vendor  is  bound  to  remove.10  The  existence 
of  an  incumbrance  on  the  premises  is  no  ground  for  rescission  so 
long  as  it  may  be  discharged  with  the  unpaid  purchase  money.16 
Having  paid  off  the  incumbrance,  the  purchaser  may,  of  course, 
demand  a  specific  performance  of  the  contract.17  Such  applica- 
tions, however,  are  infrequent  except  in  connection  with  suits  to 
stay  the  collection  of  the  purchase  money.  Or  in  a  suit  by  him- 
self for  specific  performance,  the  purchaser  may  have  the  pur- 
chase money  in  his  hands  applied  to  the  discharge  of  incum- 
brances.18 In  Alabama  it  has  been  held  that  the  amount  so  dis- 
bursed by  the  purchaser  cannot  avail  him  as  a  set-off  in  an  action 
for  the  purchase  money,  nor  as  a  defense  under  the  plea  of  failure 
of  consideration,  and  that  his  remedy  is  exclusively  in  equity.19 
But  the  rule  is  doubtless  otherwise  in  the  States  in  which  equitable 
defenses  may  be  made  at  law. 

The  purchaser  may  not  only  apply  the  unpaid  purchase  money 
to  the  discharge  of  valid  incumbrances  of  which  he  has  notice,  but 
he  is  required  so  to  do ;  and  he  cannot  defeat  an  action  for  the  pur- 
chase money  on  the  ground  of  a  sale  and  eviction  under  an  incum- 
brance, which  he  might  have  paid  off  Avith  the  purchase  money.20 

15  2  Sugd.  Vend.  (8th  Am.  ed.)  201  (555).  Smith  v.  Pettus,  1  Stew  &  R 
(Ala.)  107.  Owens  v.  Salter,  38  Pa.  St.  211,  where  the  purchaser  paid  off 
certain  tax  liens.  Smith's  Appeal,  177  Pa.  St.  437;  35  Atl.  680;  Forthman 
v.  Deters,  206  111.  159;  69  ST.  E.  Rep.  97.  Washer  v.  Brown,  5  N.  J.  Eq.  81. 
Hrdlicka  v.  Evans,  165  Iowa  207;  145  N.  W.  84.  In  the  English  practice 
the  purchaser  at  a  judicial  sale  may  apply  to  the  court  for  leave  to  pay  off 
incumbrances  on  the  premises,  appearing  from  a  report  in  the  cause,  and  pay 
the  residue  of  the  purchase  money  into  the  bank.  Where  the  incumbrance 
does  not  appear  on  the  report  the  leave  will  not  be  granted  if  any  of  the 
parties  object  or  are  incompetent  to  consent.  1  Sugd.  Vend.  (8th  Am.  ed.) 
148. 

19Greenby  v.  Cheevers,  9  Johns.  (N.  Y.)  126.  Irvin  v.  Bleakly,  67  Pa.  St. 
24. 

17  A  purchaser  may  buy  in  the  land  at  a  foreclosure  sale  under  proceedings 
against  his  vendor,  and  having  thus  extinguished  the  incumbrance,  require 
specific  perf'ormande  by  the  vendor.  Berry  v.  Walker,  9  B.  Mon.  (Ky. )  464. 

"As  in  Washer  v.  Brown,  1  Halst.    (X.  J.  Eq.)    81. 

19  Cole  v.  Justice,  8  Ala.  793. 

20Mellon's  Appeal,  32  Pa.  St.  121;  Clark  v.  Clark,  1  Grant  (Pa.),  33; 
Harper  v.  Jeffries,  5  Whart.  (Pa.)  26;  McGinnis  v.  Noble,  7  W.  &  S.  (Pa.) 
454;  Garrard  v.  Lautz,  2  Jones  (Pa.)  186. 

YO 


554  MAKKETABLE   TITLE   TO   REAL   ESTATE. 

This  nile,  however,  does  not  apply  where  the  purchase  money  had 
not  become  due  at  the  time  of  sale  under  the  incumbrance,21  nor 
AY  here  the  vendor  has  expressly  agreed  to  pay  off  the  incum- 
brance.a  In  a  case  in  which  the  vendor  refused  to  remove  the 
incumbrance  and  told  the  purchaser  if  he  \vanted  his  rights  to  sue 
for  them,  it  was  held  that  there  was  no  obligation  on  the  part  of 
the  purchaser  to  apply  a  part  of  the  unpaid  purchase  money  to 
the  discharge  of  the  incumbrance,  and  that  he  was  entitled  to 
recover  his  deposit  and  expenses.23  If  the  purchaser  pays  money 
ircnerally  to  one  having  an  incumbrance  on  the  premises,  and  also 
an  unsecured  debt  against  the  vendor,  the  money  Avill  be  held  to 
have  been  paid  in  discharge  of  the  incumbrance.24 

The  purchaser  takes  the  risk  of  the  validity  of  the  incumbrance 
which  he  removes  and  of  the  liability  of  the  vendor  therefor.25  In 
a  case,  however,  in  Avhich  the  vendor  had  received  an  indemnity 
from  Jits  vendor  against  a  supposed  incumbrance,  and  upon  a 
resale  of  the  property  agreed  Avith  his  A^endee  to  remove  the  incuin- 
brance,  it  was  held  that  he  was  estopped  from  denying  the  validity 
of  the  incumbrance  as  against  such  vendee  who  had  rernoA'ed  it.2* 

The  purchaser  must  exercise  great  caution  in  paying  off  ineum- 
brances  constituting  securities  for  the  purchase  money  and  Avhich 
pass  Avith  a  transfer  of  instruments  evidencing  the  purchase-money 
debt,  for  example,  the  transfer  of  negotiable  notes  secured  by 
purchase-money  mortgage  or  deed  of  trust.  In  such  a  case,  a  sub- 
purchaser  taking  the  property  charged  with  a  purchase-money 
mortgage  would  probably  deem  himself  safe  in  discharging  the 
mortgage  and  holding  it  against  his  vendor.  If,  hoAvcA*er,  the 
mortgage  was  made  to  secure  negotiable  notes  for  the  purchase 
money,  and  these  haA*e  been  before  maturity  transferred  to  a  pur- 
chaser for  value,  the  mortgage  might  still  be  enforced  in  f.iA'or 

"IVentler  v.  Brown,  1  Jonw  (Pa.).  205;  \CoG5nni«s  v.  NoMe,  7  W.  &  S. 
(PH.)  454. 

"Stevenson  v.  Mntlirrx.  fl7  Town,  12.1. 

"Own  v.  Hernz,  37  N.  Y.  Supp.  RS7:   2  App.  Div.  255. 

M2  Supd.  Vend,  (fith  Am.  ed.)  201  (555),  citinp  Brett  v.  Marsh,  1  Vern. 
488;  Ilayward  v.  Ixrniax,  1  Vern.  24;  Peters  v.  Anderson,  5  Taunt.  500. 

•Ante.  ||  183.  150. 

*  Hardier*  v.  Mitrhum,  51   Ala.  151. 


OF  THE   RIGHT   OF   THE  PURCHASER  TO   PERFECT   THE   TITLE.       555 

of  the  transferee,  notwithstanding  payment  in  full  by  the  sub- 
purchaser  to  the  original  vendor,  that  is,  the  mortgagee  and  payee 
of  the  notes.27 

It  has  been  held  that  a  purchaser  of  lands  with  notice  of  a  claim 
against  the  land,  will,  if  he  pays  the  purchase  money  to  the  vendor, 
be  liable  to  the  holder  of  the  claim,  to  the  extent  of  the  purchase 
money  remaining  unpaid  when  he  received  notice.28 

The  purchaser  can  have  credit  on  the  purchase  money  for  no 
more  than  the  amount  he  actually  pays  out  to  remove  the 
incumbrance.29 

§  204.  SUBROGATION  OF  PURCHASER.  The  purchaser  will 
not  only  be  entitled  to  credit  on  the  purchase  money  for  incum- 
brances  or  liens  which  he  discharges,  but  he  will  be  subrogated 
to  all  the  rights,  remedies  and  priorities  of  the  incumbrancer 
against  third  persons.30  As  against  the  vendor,  however,  as  before 
observed,  he  can  only  claim  reimbursement  to  the  extent  of  the 
amount  actually  paid  out  by  him  in  discharge  of  the  incum- 
brance.31 But  to  that  extent  he  will  be  subrogated  to  the  benefit 

"Windle  v.  Bonebrake,  23  Fed.  Rep.  165.     McLain  v.  Coulter,  5  Ark.  13. 

28  Green  v.  Green,  41  Kans.  472;  21  Pac.  Rep.  586,  citing  2  Story  Eq.   (llth 
ed.)   p.  829;  Bush.  v.  Collins,  35  Kans.  535;   11  Pac.  Rep.  425,  personal  prop- 
erty.    Dodson  v.  Cooper,  37  Kans.  346:   15  Pac.  Rep.  200;  Burke  v.  Josnson, 
37  Kans.  337;  15  Pac.  Rep.  204.    Hardin  v.  Harrington,  11  Bush  (Ky.),  367. 

29  2  Sugd.  Vend.  (8th  Am.  ed.)  202  (555),  a,nd  cases  there  cited.    In  Bryan 
v.  Salyard,  3  Grat.  (Va.)  188,  a  purchaser  who  was  directed  by  decree  to  pay 
a   sum  of  money  to  a  third  person  out  of  the  purchase  money,  and  who 
obtained  a  compromise  of  the  decree,  was  allowed  only  the  sum  actually  paid 
by  him,  as  a  credit  on  the  purchase  money. 

30  Sheld.   Subrogation,   §   28,   et  seq.     See  cases  collected,  24  Am.   &  Eng. 
Encyc.  L.  253,  et  seq.    Downer  v.  Fox,  20  Vt.  388.     Champlin  v.  Williams,  9 
Pa.  St.  341.     Furnold  v.  Bank,  44  Mo.  336.     Wall  v.  Mason,  102  Mass.  313. 
Peet  v.  Beers,  4  Ind.  46;  Troost  v.  Davis,  31  Ind.  34;   Spray  v.  Rodman,  43 
Ind.  225.     The  purchaser  cannot,  by  virtue  of  the  doctrine  of  subrogation, 
enforce  against  the  real   owner  an  incumbrance,  which  for   any  reason,  the 
incumbrancer  himself  could  not  have  so  enforced.     Brown  v.  Connell,   (Ky.) 
12  S.  W.  Rep.  267. 

31  A  vendee  purchasing  his  vendor's  title  at  a  sheriff's  sale  cannot  withhold 
the  unpaid  purchase  money  from  his  vendor,  except  what  he  expended  in  buy- 
ing in  the  title.  Tod  v.  Gallaher,  16  Serg.  &  R.   (Pa.)   261;  16  Am.  Dec.  571; 
Harper  v.  Jeffries,  5  Whart.  (Pa.)  26;  McGinniss  v.  Noble,  7  W.  &  S.   (Pa.) 
454;   Harrison  v.   Soles,   1   Pa.   St.   393;    Renshaw  v.   Gans.   2   Pa.   St.    117; 
Dentler  v.  Brown,  11  Pa.  St.  295;  Garrard  v.  Lantz,  12  Pa.  St.   186;  Mel- 
Ion's  Appeal,  32  Pa.  St.  121. 


556  .MARKETABLE   TITLE   TO    REAL    ESTATE. 

of  the  lien  or  iiieuiubrancc  as  against  the  vendor  as  well  as  third 
persons.  And  inasmuch  as  the  doctrine  of  subrogation  is  the 
creature  of  equity  and  in  nowise  dependent  upon  or  arising  from 
contract  between  the  parties,  and  is  enforced  in  favor  of  any 
person  who  is  compelled  to  discharge  a  lien  or  incumbrance  for 
his  protection,  no  reason  is  perceived  why  the  purchaser  would  not 
be  entitled  to  the  benefit  of  a  lien  which  he  discharges,  though  he 
had  accepted  a  conveyance  without  covenants  for  title.32 

The  purchase  money  paid  by  one  who  purchases  at  a  sale  made 
to  enforce  a  judgment  or  other  lien  on  security  upon  land,  goes  to 
the  discharge  of  the  judgment  or  security.  If,  therefore,  the  sale 
be  void  by  reason  of  any  error,  imperfection  or  irregularity  in  the 
proceedings  in  which  such  judgment  is  obtained,  or  sale  made,  the 
purchaser  will  be  subrogated  to  the  benefit  of  such  judgment  or 
other  lien,  and  by  proper  proceedings  for  that  purpose,  may  en- 
force the  same,  for  his  reimbursement.88 

The  doctrine  of  subrogation  is  enforced  only  in  courts  of  equity ; 
hence,  he  who  seeks  this  form  of  relief  must  himself  do  equity. 
Therefore,  it  has  been  held  that  a  subsequent  purchaser,  with 
notice  of  the  prior  purchase,  who  pays  off  a  lien  on  the  land,  will 
not  be  substituted  to  its  benefit,  so  as  to  deprive  the  first  purchaser 
of  his  bargain."  If,  however,  ho  receives  notice  after  he  has 
paid  the  purchase  money,  no  reason  is  perceived  why  he  should 
not  be  permitted  to  protect  himself  by  acquiring  the  rights  of 
outstanding  incumbrancers. 

"Pout,  ch.  27,  5  2(17. 

"Freeman  Void  Jud.  Rales.  5  50.  Valle  v.  Fleminp.  20  M<*  152:  77  Am. 
Dec.  557;  Henry  v.  MoKerlie.  73  Mo.  41«.  Tlmlpin  v.  Hiidpin.  6  Orat.  (Va.) 
320;  52  Am.  Dec.  124.  Blodjjett  v.  Hitt,  2»  Wi».  184.  Shepherd  v.  MeTntiro, 
5  Dana  (Ky.).  574;  McLanphlin  v.  Daniel,  8  Dana  (Kv.),  183.  French  v. 
On-net.  56  Tex.  273. 

»Bat««  T.  Swiger,  (W.  Va.)  21  S.  E.  Rep.  874, 


CHAPTER  XX. 

OF  SPECIFIC  PERFORMANCE  OF  COVENANTS  FOR  TITLE. 

GENERAL  RULES.     §   205. 

COVENANT    AGAINST    INCUMBRANCES.     §    206. 

CONVEYANCE    OF  AFTER-ACQUIRED    ESTATE.     §   207. 

§  205  GENERAL  RULES.  Specific  performance  of  an  execu- 
tory contract  for  the  sale  of  lands  consists,  on  the  part  of  the 
vendor,  in  the  delivery  of  possession  to  the  purchaser  and  in  the 
execution  of  a  proper  deed,  conveying  such  an  estate  as  the  contract 
requires;  and  on  the  part  of  the  vendee,  in  the  payment  of  the 
purchase  money  and  the  acceptance  of  such  conveyance.  Applica- 
tions to  equity  for  specific  performance  are  principally  confined  to 
cases  in  which  the  contract  remains  executory,  but  the  jurisdiction 
is  also  exercised  to  compel  the  grantor  to  perform  certain  of  his 
covenants  for  title.1 

The  covenant  for  further  assurance  is,  in  substance,  that  the 
grantor,  his  heirs,  etc.,  will  at  any  time  and  upon  any  reasonable 
request,  at  the  charge  of  the  grantee,  his  heirs,  etc.,  do,  execute,  or 
cause  to  be  done  or  executed,  all  such  further  acts,  deeds  and 
things,  for  the  better,  more  perfectly,  and  absolutely  conveying  and 
assuring  the  said  lands  and  premises,  etc.,  as  by  the  grantee,  his 
heirs,  etc.,  his  or  their  counsel  in  the  law,  shall  be  reasonably 
devised,  advised  or  required.2  This  language  clearly  embraces  the 
removal  of  incumbrances  upon  the  premises  which  may  be  discov- 
ered after  the  purchase  money  has  been  fully  paid;  and  it  has 
frequently  been  held  that  the  covenantor  may,  thereunder,  be 
compelled  to  pay  off  and  discharge  all  such  charges  on  the  land.3 
It  has  been  said,  however,  that  if  the  other  covenants  in  the  deed 
are  special  or  limited,  the  grantor  can  be  compelled  to  remove  only 

1  Werner  v.  Wheeler,  127  N".  Y.  Supp.  1581;   142  App.  Div.  358. 

JVa.  Code,  1887,  §  2451. 

*Sugd.  Vend.  (8th  Am.  ed.)  285;  Rawle  Covts.  (5th  ed.)  §§  104,  362. 
Stock  v.  Ayhvard,  8  Ir.  Cli.  429.  Nejson  v.  Harwood,  3  Call  (Va.),  342, 
McClaugherty  v.  Croft,  43  W.  Va.  270;  27  S.  E.  Rep.  246. 

[557] 


558  MARKETABLE   TITLE   TO   REAL   ESTATE. 

such  iucumbrances  as  may  have  been  created  by  himself  or  those 
claiming:  under  him.4 

The  nature  and  extent  of  the  "  further  assurance  "  will  of  course 
be  governed  by  that  of  the  estate  originally  conveyed.  The  cove- 
nantor cannot  be  compelled  to  assure  to  the  covenantee  a  greater 
estate  than  that  concerning  which  the  covenant  was  made.6  It  has 
been  said  that  the  jurisdiction  of  equity  in  the  specific  performance 
of  covenants  for  title  has  been  exercised  in  marshalling  the  assets  of 
a  bankrupt's  or  decedent's  estate.6  This,  however,  seems  to  in- 
volve no  principle  of  specific  performance,  unless  specific  per- 
formance consist  in  the  payment  of  damages  for  a  breach  of 
covenant,  but  rather  to  consist  in  the  enforcement  in  equity  of  a 
legal  liability  of  the  heirs  or  estate  of  the  covenantee  upon  his 
covenants.7 

The  doctrine  of  specific  performance  has,  of  course,  no  applica- 
tion to  the  covenants  of  warranty,  of  seisin,  of  good  right  to  con- 
vey, and  for  quiet  enjoyment.  There  is  nothing  for  the  covenantor 
to  do  in  lieu  of  payment  of  damages  for  the  breach  of  these 
covenants.8 

By  analogy  to  the  rule  that  a  covenantee  paying  off  incum- 
brance* upon  the  premises  cannot  recover  damages  against  the 
covenantor  in  excess  of  the  purchase  money  and  interest,  it  would 
probably  be  held  that  the  latter  could  not  be  compelled  to  remove 
an  incumbrance  which  exceeded  the  purchase  money  and  interest.' 

*Rawle  Covts.  S$  105,  363,  citing  Armstrong  v.  Darby,  26  Mo.  517,  which, 
however,  was  not  a  suit  for  specific  performance,  but  an  action  in  which  the 
plaintiff  nought  to  recover  for  an  incumbrance  on  the  premises  which  ho  had 
paid  off,  after  requesting  the  covenantor  so  to  do,  which  request  was  refused. 

•Rawle  Covts.  (5th  ed.)  ($  104,  363.  Davis  v.  Tollemache,  2  Jur.  (N\  S.) 
1181,  where  it  wan  w»id:  "The  utmost  extent  to  which  the  court  has  gone, 
with  reference  to  covenants  for  further  assurance,  has  been  to  extend  their 
operation  to  that  very  estate  and  interest  which  are  conveyed  by  the  deed." 

•Rawle  Covts.   (5th  ed.)   f  364. 

'A*  in  Higgin*  v.  Johnson,  14  Ark.  301);  60  Am.  Dec.  544.  Haffoy  v. 
Birchcttn.  11  Leigh  (Va.),83. 

•Tallman  v.  Green.  3  Sandf.  (X.  Y.)  437.     Tuite  v.  Miller,  10  Ohio,  382. 

'Ante.  |  131.  The  remedy  for  a  breach  of  warranty  i«  limited  to  an 
action  to  recover  damages  for  the  breach;  a  suit  for  specific  performance  of 
the  covenant  cannot  I*  maintained.  Tropico  Land  Co.  v.  Lambourn,  170  Cal. 
33;  14S  Pac.  200. 


OF  SPECIFIC  PEBFORMANCE  OF  COVENANTS  FOR  TITLE.   559 

• 

It  has  been  so  held  where  the  conveyance  contained  a  covenant  of 
warranty,  but  no  covenant  against  incumbrances.10 

§206.  COVENANT  AGAINST  INCTJMBRANCES.  Whether  under 
a  covenant  against  incumbrances  alone,  the  grantor  can  in  equity 
be  compelled  to  remove  an  incumbrance  OH  the  premises,  seems  to 
be  a  doubtful  question.  Mr.  Rawle  expresses  his  opinion  in  the 
negative,  conceiving  that  in  equity,  as  at  law,  a  covenantee  who  has 
suffered  no  actual  damages  from  the  presence  of  the  incumbrance, 
is  entitled  to  no  relief.11  There  are  cases,  however,  which  hold  the 
affirmative  of  this  question,  and,  to  our  mind,  establish  the  better 
doctrine.12  There  seems  to  be  little  reason  or  justice  in  a  rule 
which,  after  the  purchaser  has  exhausted  all  his  resources  in  pay- 
ing for  the  property,  requires  him  to  submit  to  an  eviction  under 
an  incumbrance  which  he  cannot  satisfy,  and  turns  him  round  to 
his  action  upon  the  covenant,  which,  for  many  obvious  reasons, 
may  prove  unavailing,  or,  at  least,  inadequate  for  his  relief.13 

"East  Tenn.  Nat.  Bank  v.  First  Nat.  Bank,  7  Lea  (Tenn.),  420.  In  this 
case  the  purchaser  took  a  conveyance  with  warranty,  and  afterward  dis- 
covered that  the  vendor  had  fraudulently  concealed  the  existence  of  a  prior 
vendor's  lien  on  the  premises;  much  exceeding  the  consideration  money.  It 
was  held  that  he  was  entitled  to  a  rescission  of  the  contract  on  the  ground 
of  fraud,  but  that  there  being  no  covenant  against  incumbrances  the  grantor 
could  not  be  required  to  remove  the  vendor's  lien. 

"Rawle  Covts.  for  Title   (5th  ed.),  §  361. 

"Story's  Eq.  Jur.  717a,  where  it  is  said:  "There  is  no  pretense  for  the 
complaints  somejtimes  made  by  the  oommon-law  lawyers,  that  such  relief 
(specific  performance)  in  equity  would  wholly  subvert  the  remedies  by  actions 
on  the  case  and  actions  of  covenant;  for  it  is  against  conscience  that  a  party 
should  have  a  right  of  election  whether  he  would  perform  his  covenant,  or 
only  pay  damages  for  the  breach  of  it.  But,  on  the  other  hand,  there  is  no 
reasonable  objection  to  allowing  the  other  party,  who  is  injured  by  the  breach, 
to  have  an  election  either  to  take  damages  at  law  or  to  have  a  specific  per- 
formance in  equity,  the  remedies  being  concurrent  but  not  coextensive  with 
each  other."  See,  also,  Ranelagh  v.  Hayes,  1  Vern.  189;  2  Gas.  in  Ch.  146; 
Power  v.  Standish,  8  Ir.  Eq.  526.  Burroughs  v.  McNeill,  2  Dev.  &  Bat.  Eq. 
(N.  C.)  297.  See,  also,  other  cases  cited  Rawle  Covts.  for  Title  (5th  ed.), 
p.  610,  n.  Contra,  Tallman  v.  Greene,  3  Sandf.  (N.  Y.)  437. 

"  It  may  be  thought  that  these  observations  would  apply  as  well  to  the 
removal  of  adverse  claims  to  the  premises  where  there  is  a  covenant  of  war- 
ranty instead  of  a  covenant  against  incumbrances.  The  cases,  however,  are 
not  parallel;  the  difference  is,  that  the  incumbrancer  is  bound  to  receive 
payment  of  his  incumbrance  from  the  covenantor,  or  indeed  from  any  one 
not  a  volunteer;  while  an  adverse  claimant  cannot  be  compelled  to  part  with 
his  rights  for  a  pecuniary  consideration. 


560  MAKKETABLE   TITLE   TO   REAL   ESTATE. 

§  207.  CONVEYANCE  OF  AFTER-ACQUIRED  ESTATE.  \Ve 
shall  see  that,  as  a  general  rule,  the  effect  of  a  conveyance  with 
covenants  for  title,  and  in  some  cases  without  covenants,  if  an 
intent  to  pass  an  estate  of  a  particular  description  appear,  is  to 
estop  the  grantor  from  afterwards  asserting  an  after-acquired  title 
to  the  estate,  and  that  it  has  been  sometimes  held  that  the  estoppel 
itself  operates  as  a  conveyance  to  the  covenantee.14  Nevertheless, 
under  a  covenant  for  further  assurance,  the  grantee  may  in  equity 
compel  the  grantor  to  convey  to  him  the  after  acquired  title,  if  he 
should  deem  such  a  conveyance  necessary  or  expedient.15  And 
even  in  the  absence  of  a  covenant  for  further  assurance,  it  is  appre- 
hended that  a  court  of  equity  would  compel  a  conveyance  of  tin- 
after-acquired  title  to  the  grantee.18 

14  Post,  "  Estoppel."  Ch.  21. 

**2  Sugd.  Vend.  (8th  Am.  ed.)  294  (613);  3  Washb.  R.  Prop.  (4th  ••<!.> 
479  (667) ;  Rawle  Covts.  (5th  ed.)  §  362.  Taylor  v.  Debar,  1  Ch.  CHS.  -J74. 
Heath  v.  Crealock,  L.  R.,  18  Eq.  215,  242:  10  Ch.  App.  30.  Gen.  Finance  Co. 
T.  Liberator  Society,  L.  R.,  10  Ch.  Div.  15.  Lewis  v.  Baird,  3  McL.  (U.  fi 
56,  SO,  oft.  diet.  Reese  v.  Smith,  12  Mo.  315,  oft.  diet.  Henderson  v.  (hvrton. 
2  Yerg.  (Tenn.)  307;  24  Am.  Dec.  492,  oft.  diet.  Pierce  v.  Milwaukee  R.  Co.. 
24  Wis,  554;  1  Am.  Rep.  203. 

*Steiner  v.  Bauphman,  12  P».  St.  107,  108,  where  it  was  said  by  GIBSOX, 
C.  J.,  that  if  the  vendor  had  subsequently  purchased  a  part  of  the  promi~i'-. 
equity  would  compel  him  to  convey  it  over  again  in  order  to  make  pocxi  hi- 
former  deed;  and  this,  for  the  reason  that  he  had  received  value  for  it.  In 
1  Sngd.  Vend.  (8th  Am.  ed.)  533,  it  is  said  that  if  a  man  sell  nn  estate  to 
which  he  had  no  title,  and  after  the  conveyance  acquire  th<>  title,  ho  will 
be  compelled  to  convey  it  to  the  purchaser.  The  proposition  is  not  restricted 
to  case*  in  which  there  are  covenants  for  title.  See,  also,  Came  v.  Mitchell. 
10  Jur.  909. 


CHAPTER  XXI. 

ESTOPPEL  OF  THE  GRANTOR. 

GENERAL  RULES.     §   208. 

AFTER   ACQUIRED   ESTATE   MUST   BE   HELD   IN    SAME    RIGHT. 

§   209. 

MUTUAL  ESTOPPELS.     §   210. 
ESTOPPEL  OF  MORTGAGOR.     §   211. 

EFFECT  OF  VOID  CONVEYANCE  AS  AN  ESTOPPEL.     §   212. 
EFFECT    OF    ESTOPPEL    AS    AN    ACTUAL    TRANSFER    OF    THE 

AFTER-ACQUIRED   ESTATE.     §   213. 
RIGHTS    OF    PURCHASER    OF    THE    AFTER-ACQUIRED    ESTATE 

FROM  THE  COVENANTOR.     §   214. 
COMPULSORY  ACCEPTANCE  OF  THE  AFTER-ACQUIRED  ESTATE 

IN  LIEU   OF  DAMAGES.     §   215. 
WHAT  COVENANTS  WILL  PASS  THE  AFTER- ACQUIRED  ESTATE. 

§   216. 
ESTOPPEL  NOT  DEPENDENT  ON  AVOIDANCE  OF   CIRCUITY  OF 

ACTION.     §   217. 

EFFECT  OF  QUIT-CLAIM  BY  WAY  OF  ESTOPPEL.     §   218. 
ESTOPPEL  OF  GRANTEE.     §   219. 
RESUME.      §   220. 

§  208.  GENERAL  RULES.  Estoppels  are  of  two  kinds :  1st. 
Estoppel  in  pais,  or  that  which  arises  from  the  acts  and  conduct  of 
the  party ;  thus,  if  I  induce  another  to  purchase  property  by  repre- 
senting that  the  right  of  the  vendor  to  sell  is  clear  and  undisputed, 
having  myself  at  that  time  a  claim  to  that  property,  I  will  be  es- 
topped or  precluded  from  afterwards  asserting  that  claim  as  against 
the  vendor  or  his  assigns.1  2d.  Estoppel  by  deed,  or  that  which 
arises  from  the  covenants  or  recitals  in  a  deed,  by  which  the 
grantor  makes  it  appear  that  he  is  the  rightful  owner  of  the  estate 
therein  described ;  in  such  case  if  the  grantor  have  no  title  at  the 
time  of  the  conveyance,  but  afterwards  acquire  it,  by  descent  or 
purchase,  the  law  will  not  permit  him  to  assert  the  same  against 
his  grantee,  he  being  estopped  to  deny  that  he  had,  at  the  time 
when  he  executed  the  deed,  the  title  or  the  estate  described  therein.8 

J2  Sugd.  Vend.    (8th  Am.  ed.)    507    (743). 

2Washb.  Real  Prop.  69:  Bigelow  Estoppel,  p.  453;  Rawle  Covt.  §  250;  Gr. 
Cruise  Dig.  ch.  26,  §  51;  Judge  HARE'S  note,  2  Sm.  L.  Cas.  (ed.  1866)  723. 

71  [561] 


562  MARKETABLE    TITLE    TO    REAL    ESTATE. 

The  reason  of  this  rule  in  large  measure  is  that  cimiity  of  action. 
is  thereby  avoided,  or  rather  the  subsequent  acquisition  of  the  estate 
by  the  grantor  satisfies  his  covenants  and  prevents  an  action  by  the 
covenant ee  where  he  has  sustained  no  actual  damage  from  a  breach 

Watkins  v.  Wasscll.  15  Ark.  73.  Doe  v.  Quinlnn,  51  Ala.  539.  Croft  v. 
Thornton,  125  Ala.  301;  28  So.  Rep.  84.  Klumpki  v.  Baker,  68  Cal.  559;  10 
Pae.  Rep.  197.  U'Bannon  v.  Paremour,  24  Ga.  489:  Linsey  v.  Ramsey,  22  Ga. 
027;  Parker  v.  Jones,  57  Ga.  204.  Hoppin  v.  Hoppin,  96  111.  265;  Jones  v. 
Kinp,  25  HI.  3S4.  Whitson  v.  Grosvenor,  170  111.  271;  48  N.  E.  Rep.  1018; 
Owen  v.  Brookport,  208  111.  35;  69  X.  E.  Rep.  952.  Glendinning  v,  Oil  Co., 
162  Iml.  642;  70  X.  E.  Rep.  976.  Logan  v.  Steele,  4  T.  B.  Mon.  (Ky.)  430; 
Dickinson  v.  Tallxit,  14  B.  Mon.  (Ky.)  49  (65);  Logan  v.  Moore,  7  Dana 
(Ky.),  74.  Benton  v.  Sentell,  50  La.  Ann.  8«9;  24  So.  Rep.  297.  Williams  v. 
Williams,  31  Me.  392.  Funk  v.  Newcomer,  10  Md.  301;  Williams  v.  Peters. 
(Md.)  20  Atl.  Rep.  175.  Lee  v.  Clary,  38  Mich.  223;  Smith  v.  Williams,  44 
Mich.  240;  6  X.  W.  Rep.  602.  Dye  v.  Thompson,  126  Mich.  597;  85  X.  W. 
Rep.  1113  Kaiser  v.  Earhart,  G4  Mjss.  492;  1  So.  Rep.  635.  Jewell  v. 
Porter,  11  Post  (X.  H.)  39;  Thorndike  v.  Xorris,  4  Post.  (N.  II.)  454.  Gough 
v.  Bell,  21  X.  J.  L.  150;  Moore  v.  Rake,  26  X.  J.  L.  587.  Jackson  v.  Winslow, 
9  Cow.  (X.  Y.)  18.  Wellborn  v.  Finley,  7  Jones  L.  (X.  C.)  228.  Hallyburton 
v.  Slagle,  130  X.  C.  482;  41  S.  E.  Rep.  £77.  Pollock  v.  Speidel,  27  Ohio  St. 
86;  Broadwell  v.  Phillips,  30  Ohio  St.  255.  Taggart  v.  Rislev,  3  Oreg.  306. 
Harvie  v.  Hodge,  Dudley  fS.  C.),  23-;  Reeder  v.  Craig,  3  McCord  (S.  C.)t 
411;  Wingo  v.  Parker,  19  S.  C.  9.  Johnson  v.  Branch,  9  S.  Dak.  116;  69 
X.  W.  Rep.  173.  Robertson  v.  Gaines,  2  Humph.  (Tenn.)  367,  where  an 
executor's  deed  with  warranty,  was  held  to  estop  a  devisee,  who  had  .shared 
in  the  proceeds  of  the  executor's  sale,  from  setting  up  an  after-acquired  title 
to  the  land.  Walker  v.  Arnold,  71  Vt.  263;  44  Atl.  351.  Mann  v.  You::?, 
1  Wash.  (T'y.)  454.  Mitchell  v.  Petty,  2  W.  Va.  470;  98  Am.  Dec.  777. 
Clark  v.  Lambert,  55  W.  Va.  512;  47  S.  E.  Rep.  312.  Yock  v.  Mann  (W.  Va.). 
49  S.  E.  Rep.  1019.  Balch  v.  Arnold  (Wyo.),  59  Pac.  Rep.  434.  Wicsner  v. 
Zaun,  39  Win.  188.  Shepherd  v.  Kahle,  (Wis.),  97  X.  W.  Rep.  500.  Mo- 
WilliamH  v.  Xisley,  2  S.  JL  R.  (Pa.)  507;  7  Am.  Dee.  654;  Logan  v.  Xcill. 
128  Pa.  St.  457;  18  Atl.  Rep.  343.  Burtners  v.  Keran,  24  Grant  (Va.),  42; 
Raines  v.  Walker,  77  Va.  92.  Burkitt  v.  Twyman,  (Tex.  Civ.  App.)  35  S. 
W.  Rep.  421.  The  shallow  device  of  taking  the  after-acquired  title  in  the 
name  of  a  stranger  will  not  prevent  the  estate  from  po.-wiiig  to  the  original 
grantee.  Quivey  v.  Baker,  37  Cal.  470.  Equity  would  compel  *uch  grantee 
to  convey  to  the  covenantee.  Wheeler  v.  McHain,  43  I^a.  Ann.  859;  9  So. 
Rep.  495.  A  son  conveyed  his  undivided  half  interest  in  his  deceased  father's 
property,  and  afterward  purchased  his  mother's  life  interest  in  the  property. 
Held,  that  such  life  interest  in  the  half  previously  conveyed  vested  in  the 
Hon's  grantee.  Carnex  v.  Swift  (Tex.  Oiv.  App.),  56  S.  W.  Rep.  *.r>.  Robinson 
v.  Doutliit.  04  Tex.  101.  The  rule  stated  in  the  text  was  applied  in  a  case 
in  which  the  party  estopped  acknowledged,  but  did  not  sign,  the  dwd.  Hiirsky 
v.  Powy,  (!>e|.  Ch.l  9S  Atl.  298. 


ESTOPPEL    OF    THE    GRANTOR.  563 

of  the  covenant.3  The  history  of  the  doctrine  of  estoppel  by  deed 
as  derived  from  common-law  sources,  is  somewhat  without  the  plan 
and  scope  of  this  work.  The  reader  desirous  of  pursuing  his  in- 
vestigations in  that  direction  is  referred  to  the  special  treatises 
upon  that  subject.4 

It  has  been  held  that  the  covenantee  cannot  have  the  benefit  of 
the  subsequently  acquired  title  unless  he  has  been  evicted  from  the 
premises.5  The  decision  seems  questionable.  The  authorities 
cited  in  support  of  the  ruling  are  merely  to  the  effect  that  the 
covenantee  cannot  recover  on  the  warranty  unless  he  has  been 
actually  or  constructively  evicted  from  the  premises,  and  no  ques- 
tion of  the  enurement  of  a  subsequently  acquired  title  to  the  benefit 
of  the  covenantee  appears  to  have  been  involved. 

Recent  Cases.  Veve  v.  Sanchez,  226  U.  S.  234;  33  S.  Ct.  36;  Roper  Lumber 
Co.  v.  Hinton,  260  Fed.  996;  Swift  v.  Doe,  162  Ala.  147;  50  So.  123;  Cobb  v. 
Naval  Stores  Co.,  (Ala.)  80  S.  E.  415;  Fox  v.  Lumber  Co.,  85  Ark.  497;  108 
S.  W.  1137;  Colonial  etc.,  Mtge.  Co.  v.  Lee,  95  Ark.  253;  129  S.  W.  84; 
Moral'is  v.  Matheson,  75  Fla.  589 ;  79  So.  201 ;  Cowart  v.  Singletary,  140  Ga. 
435;  79  S.  E.  196;  Ann.  Cas.  1915  A,  1116;  47  L.  R.  A.  (N.  S.)  621;  Oliver 
v.  Holt,  141  Ga.  126;  80  S.  E.  630;  McAdams  v.  Bailey,  169  Ind.  518;  82 
N.  E.  1057;  13  L.  R.  A.  (X.  S.)  1003;  124  Am.  St.  Rep.  240;  Whitley  v. 
Johnson,  135  Iowa  620;  113  N".  W.  550;  Stephens  v.  Boyd,  157  Iowa  570; 
138  N.  W.  389;  Irish  v.  Steeves,  154  Iowa  286;  134  N".  W.  634;  Hintz  v. 
Hintz,  176  Iowa  392;  157  K  W.  878;  Creekmore  v.  Bryant,  153  Ky.  166; 
164  S.  W.  337;  Hays  v.  Lackey,  185  Ky.  17;  213  S.  W.  205;  Wells  v."  Black- 
man,  121  La.  394;  46  So.  437;  Wade  v.  Barlow,  99  Miss.  33;  54  So.  662; 
Miss.  Saw-Mill  Co.  v.  Douglas,  107  Miss.  678;  65  So.  885;  Harris  v.  Byers, 
112  Mies.  651;  73  So.  614;  Patton  v.  Forgey,  171  Mo.  App..  1;  153  S.  W.  575; 
Collins  v.  Buffalo  etc.  Ry  Co.,  129  N.  Y.  Supp.  139;  145  App.  Div.  148; 
Cooley  v.  Lee,  170  N.  C.  18;  86  S.  E.  720;  Ford  v.  McBrayer,  171  N.  C.  420; 
88  S.  E.  736;  James  v.  Hooker,  172  N".  C.  780;  90  S.  E.  925;  Richardson  v. 
Lumber  Corp'n.,  93  S.  C.  254;  75  S.  E.  371;  L.  R.  Ann.,  1918  C,  788; 
Britton  v.  Hemingway,  104  S.  C.  209;  88  S.  E.  462;  Bird  v.  Cross,  123  Tenn. 
519;  131  S.  W.  974;  Ferguson  v.  Prince,  130  Tenn.  543;  190  S.  W.  548; 
Vann  V.  Denson,  56  Tex.  Civ.  App.  220.  120  S.  W.  1020 ;  Tennison  v.  Palmer, 
(Tex.  Civ.  App.)  142  S.  W.  949;  Morris  v.  Short,  (Tex.  Civ.  App.)  151 
S.  W.  633';  Hurley  v.  Charles,  112  Va.  706;  72  S.  E.  689;  Blake  v.  O'Neal, 
63  W.  Va.  483;  61  S.  E.  410;  16  L.  R.  A.  (N.  S.)  1147;  Irvin  v.  Stover,  67 
W.  Va.  356;  67  S.  E.  1119;  Arnold  v.  Nichols,  25  Wyo.  45S;  172  Pac.  335. 

3  Cases  cited  in  last  note.     See,  also,  post,  §  217. 

'Bigelow  on  Estoppel,  p.  329;  Rawle  Covts.  for  Title  (5th  ed.),  ch.  11, 
p.  351. 

°Donohue  v.  Vosper,  189  Mich.  78;  155  N.  W.  407;  citing  Matteson  v. 
Vaughn,  38  Mich.  373,  and  Rawle  Covt's  for  Title,  §§  131,  140. 


.")64  MAKKKTABLE   TITLE    TO    REAL    ESTATE. 

The  estoppel  operates  to  deprive  the  covenantor  of  the  after- 
acquired  estate  as  well  where  he  had  a  present  right  or  interest 
which  passed  at  the  time  of  the  grant  as  where  nothing  whatever 
passed.'  The  rule  is  otherwise  in  case  of  a  lease ;  if  the  lessor  h;;s, 
at  the  time  of  making  the  lease,  any  interest  in  the  demised  prem- 
ises, that  interest  only  will  pass,  and  the  lease  will  have  no  effect 
by  wav  of  estoppel  as  to  any  after-acquired  interest.7 

There  is  no  warranty  in  execution  sales;  consequently,  neither 
the  judgment  creditor  nor  the  judgment  debtor  is  estopped  to  set 
up  an  after-acquired  title  against  a  purchaser  at  a  sale  under  exe- 
cution on  the  judgment  to  which  they  were  parties.8 

If  the  covenantor  discharge  an  incumbrance  on  the  land,  pay- 
ment of  which  had  been  assumed  by  the  grantee,  he  will  not  be 
estopped  by  his  warranty  from  enforcing  such  incumbrance  by  way 
of  subrogation  to  the  rights  of  the  incumbraneer.9  But  if  he 
acquires  an  incumbrance  existing  upon  the  land  at  the  time  of  the 
conveyance,  the  payment  of  which  was  not  assumed  by  the  grantee, 
he  will  be  estopped  to  enforce  such  incumbrance,  even  though  he 
conveyed  without  warranty.10  The  general  rule  is  that  the  grantor 
in  a  warranty  deed  cannot,  as  against  the  grantor,  acquire  title  to 
the  land  under  foreclosure  of  a  mortgage  which  was  a  lien  on  the 
land  at  the  date  of  the  deed.11 

If  the  covenantor  disseise  the  covenantee  and  hold  the  estate 
until  the  right  of  the  disseisee  to  recover  the  possession  is  barred 
by  the  Statute  of  Limitations,  the  title  so  perfected  cannot  enure 

•Howe  v.   MrCormick,  57  X.  Y.  319. 

'4  Kent  Com.  98.  House  v.  McCorraick,  57  X.  Y.  319.  Walton  v.  Water- 
house.  2  Saund.  415. 

•Pont,  I  218.  Bigclow  Estoppel  (3d  «U ,  333.  Henderson  v.  Overtoil,  2 
Yerg.  (Ti-nn.)  304;  24  Am.  Dec.  492.  Enuneraon  v.  Sansome,  41  Cal.  552. 
Frey  v.  Haw-ion,  06  X.  C.  466.  Dougald  v.  Dougherty,  11  Ga.  578. 

•Brown  v.  Staple*,  21  Me.  497;  48  Am.  Dec.  504.  Holies  v.  Beach,  2  Zah. 
(X.  J.)  6«0;  53  Am.  Deo.  263. 

••Flanary  v.  Kane.  102  Ya.  547:  4(1  S.  E.  Rep.  6S1.  A  tenant  in  common 
of  separate  tract*  of  land,  who  ronveyg  his  undivided  share  to  hi-  co-tenant 
with  warranty,  i*  estopped  to  set  up  againat  his  grantee  title  to  the  land 
acquired  l>y  him  under  a  *uhiMH|iu»iit  foreclosure  sale.  Garner  v.  Garner, 
117  Mi-.  094;  78  So.  623. 

"George  v.  Brandon,  214  Pa.  623;  64  All.  371;  Waslee  v.  Rodman,  231 
P«.  219;  80  All.  «43. 


ESTOPPEL    OF    THE    GHANTOR.  565 

to  the  benefit  of  the  covenantee.12  It  has  been  held  that  this  rule 
does  not  apply  where  the  covenantor,  instead  of  disseising  the  cove- 
nantee, merely  remains  in  possession,  without  color  of  title,  for 
the  statutory  period.13 

In  a  case  in  which  the  grantor  conveyed  vacant  and  uninclosed 
lands,  and  afterwards  entered  upon  and  inclosed  them  and  erected 
buildings  upon  them,  claiming  them  as  his  own  for  the  statutory 
period,  it  was  held  that  his  possession  could  not  be  held  permissive 
or  subordinate  to  that  of  his  grantee,  and  that  he  was  not  estopped 
from  setting  up  the  title  thus  acquired  under  the  Statute  of  Limi- 
tations against  his  grantee.14 

The  estoppel  binds  not  only  the  grantor  but  his  heir 15  or  devisee 
and  his  assigns.16  The  heir  or  devisee,  it  seems,  is  bound  only 
to  the  extent  of  assets  received  from  the  grantor.17  Such  assets, 
it  is  apprehended,  will  include  personal  estate,  in  those  States  in 

"Franklin  v.  Dor  land,  28  Cal.  175;  87  Am.  Dec.  111.  Tilt  on  v.  Emery,  17 
N".  H.  536,  the  court  saying  that  the  covenantor  may  disseise  his  covenantee 
with  the  same  effect  as  any  other.  Kent  v.  Harcourt,  33  Barb.  (N.  Y.)  491. 
Cf.  Wicklow  v.  Lane,  37  Barb.  (N.  Y.)  244.  Stearns  v.  Hendersass,  9  Gush. 
(Mass.)  497;  57  Am.  Dee.  6-5.  Smith  v,  Montes,  11  'Tex.  24;  Harn  v.  Smith, 
79  Tex.  310.  Hines  v.  Robinson,  57  Me.  330;  99  Am.  Dec.  772.  Eddleman 
v.  Carpenter,  7  Jones  L.  (N.  C.)  616.  Dillard  v.  Cochimni,  (Tex.  Civ.  App.) 
153  S.  W.  662. 

"Johnson  v.  Farlow,  13  Tred.  L.  (N.  C.)  85.  Chatham  v.  Lonsford,  149 
N.  C.  363;  63  S.  E.  81;  25  L.  R.  A.  (N.  S.)  129.  But  see  Sherman  v.  Kane, 
46  1*4.  Y.  Super.  Ct.  310,  where  it  was  held  the  rule  applied  as  -weM  where 
possession  had  not  been  given  as  where  it  -had  been  given  and  had  been 
followed -by  an  actual  disseisin.  In  Reynolds  v.  Cathens,  5  Jones  L.  (1ST.  C.) 
438,  it  was  held- that  a  grantee  of*a  covenantee,  who  had  not  given  possession, 
would  be  in  under  color  of  title,  and  that  the  title,  when  perfected  by  the 
Statute  of  Limitations,  would  not  enure  to  the  covenantee. 

"Horbach  v.  Boyd,  64  Neb.  129;  89  N.  W.  Rep.  644. 

15  Du  Bose  v.  Kell,  90  S.  C.  196;  71  S.  E.  371;  Buford  v.  Adair,  43  W.  Va. 
211;  27  S.  E.  260;  64  Am.  St.  Rep.  854.  The  heir  is  not  estopped  by  his 
ancesk>r's  deed'  if  the  estate  -comes,  to  him  otherwise  than  through  the  ancestor. 
Golladay  v.  Knock,  235  111.  412;  85  N.  'E.  649;  12,6  Am.  St.  Rep.  224.  See, 
also,  §  209.  A  husband  joining  with  his  wife  in  a  deed  of  her  property  with 
warranty,  void  for  want  of  proper  execution  by  the  wife,  is  estopped  to 
claim  title  to  the  property  as  her  heir.  Custer  v.  Hall,  71  W.  Va.  119; 
76  S.  E.  183.  See,  also,  post,  §  218. 

16Tolliver  v.  Railway  Company,  187  Fed.  795;   109  C.  C.  A.  643. 

"2  Tucker  Bl.  Com.  303,  n.  8.  Chauvin  v.  Wagner,  IS  Mo.  531,  553.  Nun- 
ally  v.  White,  3  Met.  (Ky.)  592.  In  Logan  v.  Moore,  1  Dana  (Ky.),  57,  it 
was  held  that  the  heir  was  barred  to  the  extent  of  the  value  of  the  land 


566  MARKETABLE   TITLE  TO   KEAL   ESTATE. 

which  the  entire  estate  of  a  decedent,  real  as  well  as  personal,  is 
made  assets  for  the  payment  of  his  debts.  The  estoppel  does  not 
bind  those  who  are  not  in  privity,  in  blood  or  estate,  with  the 
grantor.18 

Lineal  and  collateral  warranties  having  been  very  generally 
abolished  by  statute  in  the  American  States,  a  deed  with  full  cove- 
nants of  warranty  will  not  estop  the1  heirs  of  the  grantor,  even  to 
the  extent  of  assets  descended,  from  asserting  against  the  grantee 
a  title  derived  by  them  through  some  source  jother  than  him, 
the  grantor; 19  though,  of  course,  if  they  had  received  assets  from 
the  grantor,  by  descent,  they  will  be  liable  to  that  extent  for  the 
breach  of  his  covenant. 

It  has  been  held  that  a  grantor  with  -warranty  will  be  estopped 
from  setting  up  a  resulting  trust  in  the  premises  for  his  own 
benefit.  Thus,  he  cannot  show  that  after  the  deed  was  delivered 
it  was  agreed  that  the  grantee  should  hold  the  property  merely  as 
trustee  for  sale  and  payment  of  the  grantor's  debts.  lie  cannot 
by  parol  do  away  with  his  covenant  of  warranty.20  Conversely,  a 
grantor  by  warranty  deed  of  land  irnpn-M  d  with  a  resulting  tru-t 
in  the  grantee's  hands,  is  not  estopped  by  his  warranty  from-  ac- 
quiring the  interests  of  the  cestui  que  truxl.-1 

Xo  estoppel  arises  where  the  grantor's  cnvenants  have  liern-  ex- 
tinguished; as  where  he  conveyed  the  land  to  one  through  whom 
by  nie^iie  conveyances  he  acquire  the  title."  Thus,  if  A.  oonvey 
B.  with  warranty,  and  B.  convoy  to  <?.,  and  then  ('.  conveys  to 

at  the  time  he  received  it  from  the  ancestor,  and  not  merely  !•>  tin-  extent  of 
the  value  at  the  date  of  the  warranty  of  the  land  claimed.  The  heir  had 
brought  ejectment  for  the  land,  setting  up  an  after-acquired  title. 

"Newton  v.  Kastorwood.    CIVx.  Civ.  App.)    lf>4  S.  W.  646. 

**Rii8»  v.  Alpaujfh,  118  Mass.  3(19;  19  Am.  Rep.  464.  Foote  v.  Clark.  102 
M...  394;  10  S.  W.  Rep.  981:  Whit  son  v.  Grosvcnor,  170  111.  271;  48  X.  K. 
Rep.  Kilfi. 

•Rathhun  v.  Rathbun,  6  Barb.    (N.  Y.)    107. 

"Condit  v.  Biffalow,  64  X.  .1.  Eq.  504;  54  Atl.  160. 

"Goodel  v.  K.-Mintt,  -J2  Wi<.  f,r,:,.  1,,  Smili-\  v.  Fries.  104  111.  llti.  wlu-iv 
A.,  owning  th rot-  fourth*  »f  an  estate,  convex ed  the  whole  with  warranty  to 
B..  who  owned  the  other  fourth,  and  who.  at  the  sjune  time,  with  like  war- 
ranty, conveyed  that  fourth  <«•  A.,  it  \va.-  held  that  tin-  warranty  of  th. 
fourth  from  A.  to  B.  wan  i-xt  in-uMu-il  1>\  IJ.'s  n>.  ..nvevance  to  A.,  so  that 
A.'H  »fter-a-  ijuin-.I  title  im,l]  i,  ;  mure  to  the  benefit  of  B. 


ESTOPPEL    OF    THE    GRANTOR.  567 

A.,  the  original  grantor,  A.'s  covenants  to  B.  are  extinguished,  and 
the  title  acquired  by  him  from  C.  cannot  enure  to  the  benefit  of  B. 
If  this  were  not  so,  no  man  could  safely  purchase  property  which 
he  had  once  conveyed  away  with  warranty.  In  order  that  a  cove- 
nant of  warranty  shall  estop  the  grantor  from  setting  up  an  after- 
acquired  estate,  it  must  appear  that  the  title  to  such  estate  is  ad- 
verse and  not  subordinate  to  the  title  conveyed  by  the  grantor.23 
To  this  principle  is  to  be  referred  the  decision  that  the  title 
acquired  by  the  grantor  as  purchaser  at  a  sale  under  a  mortgage 
or  trust  deed  to  secure  the  payment  of  money,  does  not  enure  to 
the  benefit  of  the  grantee.24  A  covenant  of  general  warranty  in 
a  deed  will  not  estop  the  grantor  from  claiming  a  breach  of  explicit 
conditions  in  the  granting  part  of  the  deed  restricting  the  future 
use  of  the  property.20 

Neither  the  grantor  nor  his  heirs  or  his  representatives  will  be 
estopped  to  show  that  the  deed  was  obtained  through  fraud  of  the 
vendee,  even  as  against  a  subsequent  purchaser  without  notice,  and 
though  the  purchase  money  was  received  after  notice  of  the  fraud.26 
A  fraudulent  purchaser  gets  no  title  to  the  land,  though  the  vendor 
gains  a  good  title  to  the  purchase  money.  The  policy  of  the  law  is 
to  punish  a  fraudulent  purchaser.27  ,No  lapse  of  time  nor  any  act 
of  confirmation  by  the  party  defrauded,  even  with  a  full  knowledge 
of  the  facts  can  restore  and  make  vital  a  contract  dead  on  account 
of  fraud.  A  new  contract  for  additional  consideration  may  be 
made,  but  the  old  is  forever  gone;  once  a  cheat,  the  thing  so 
remains.28 

23  Thielen  v.  Richardson,  35  Minn.  500,  29  N.  W.  Rep.  677.  In  this  case  it 
appeared  that  in  1851  C.  executed  to  R.  a  warranty  deed  to  certain  lots. 
In  1857  B.  owned  these  lots,  but  how,  when,  or  from  whom  he  got  title  did  not 
appear,  nor  whether  his  title  was  adverse  or  subordinate  to  that  of  C.  In 
1857  B.  conveyed  to  C.  On  these  facts  it  was  held  that  C.  was  not  estopped 
by  his  warranty  to  assert  against  R.  the  title  so  acquired  from  B. 

--Goode  v.  Bryant,  118  Va.  314.  87  S.  E.  588. 

25  Linton  v.  Allen,  154  Mass.  432,  28  N\  E.  Rep.  780. 

=6  Jackson  v.  Summerville,  13  Pa.  St.  359. 

"Id.  Gilbert  v.  Hoffman,  2  Watts  (Pa.),  66,  26  Am.  Dec.  103;  Small 
v.  Jones,  1  W.  &  S.  (Pa.)  138. 

28  Language  of  COULTER,  J.,  in  Jackson  v.  Summerville,  supra,  Duncan  v. 
McCullough,  4  S.  &  R.  (Pa.)  485;  Chamberlain  v.  McClurg,  8  W.  &  S.  (Pa.) 
36.  Co.  Litt.  214b. 


568  MARKETABLE  TITLE  TO  REAL  ESTATE. 

If  land  be  conveyed  by  warranty  deed  subject  to  a  mortgage,  or 
the  grantee  assumes  and  agrees  to  pay  the  mortgage  as  a  part  of 
the  purchase  price,  the  grantor  may  purchase  and  enforce  the 
mortgage  against  the  laud;  he  is  not  estopped  by  his  warranty  to 
set  up  the  title  so  acquired.29  But  if  the  only  reference  in  the 
deed  to  the  mortgage  is  to  except  it  from  the  covenant  against 
incumbrances,  it  has  been  held  that  such  exception  does  not  extend 
to  or  modify  the  covenant  of  warranty,  and  that  any  title  acquired 
by  the  grantor  on  foreclosure  of  the  mortgage  would  enure  to  the 
benetit  of  the  grantee.30 

The  covenantor  is  estopped  to  set  up  the  after-acquired  estate  as 
well  against  a  remote  grantee  as  against  his  own  grantor  in  every 
case  in  which  the  remote  grantee  is  entitled  to  the  benetit  of  the 
covenants  of  the  original  grantor.31  The  fact  that  one  of  the  in- 
tervening deeds  in  such  case  was  a  quit  claim  conveying  on-ly  the 
grantor's  right,  title  and  interest  in  the  land,  will  not  prevent  the 
passage  of  the  after-acquired  estate  of  the  original  grantor  and 
covenantor  to  the  remote  grantee.32 

A  covenant  of  warranty  in  a  deed  cannot  operate  by  way  of 
estoppel  to  confer  upon  the  grantee  greater  title  than  the  deed 
itself  would  have  conferred,  if  effective.23  Thus,  in  a  ease  in 
which  joint  owners  executed  a  deed  with  warranty  making  parti- 
tion of  the  land  between  themselves,  and  it  afterwards  developed 
that  one  of  the  grantors  had  no  valid  interest  in  the  land,  it  was 
held  that  neither  the  other  grantor,  nor  his  heirs,  were  estopped 
b  his  warrant  to  assert  title  to  the  whole  of  the  land.34 


~Merritt  v.   lUrr*.  4fi  Minn.   74.  4S  X.  W.  Rep.  417:   Wither  v. 
00  Minn.  98,  71  X.  XV.  R-p.  OO9:  Rrmvn  v.  Staple*.  28  Me.  497,  48  Am.  Dec. 
.r>04;   Crtwby  v.  Evans.    (Mo.  App.)    105  S.  XV.  514. 

"Sandwich  Mfp.  Co.  v.  Zollncr.  4S  Minn.  508.  50  X.  W.  Rep.  370:  Rooney 
v.  Koenijr.  80  Minn.  483.  83  X.  XV.  Rep.  309. 

•MohnHon  v.  John-urn,  170  Mo.  34.  70  R.  XV.  Rpp.  241.  59  L.  R.  A.  74S. 

M.Tohn*on  v.  Johnson.  17ft  Mo.  34.  70  S.  XV.  Rep.  241,  59  L.  R,  A.  748: 
Knrada-Hhio  R.  K.  Co.  v.  Kelchor.  (Mo.)  214  S.  W.  9151. 

"PHtohard  v.  Fox.  (1V\.  Civ.  App.)  154  S.  XXr.  1058:  Xewton  v.  K»«ter- 
\vood,  (Tex.  Civ.  App.)  154  S.  XX'.  OM.  The  grantor  U  not  eatopped  to  wt 
up  an  iifter-noqtrtn-d  title  to  tin-  timber  on  the  land,  if  the  grantee  knew. 
at  the  time  of  the  deed,  that  the  grantor  did  not  own  the  timber.  Cillm  v. 
Powe.  2  10  Fed.  553.  135  C.  ('.  A.  321. 

"Dim*  v.  .\Rne\\.  07  Tev.  200,  2  S.  XV.  Rep.  43,  37fl;  Chnce  v.  Crep£. 
SS  Tex.  552.  .T2  S.  XX*.  Hi-p.  520. 


ESTOPPEL    OP    THE    GRANTOR.  569 

If  the  covenantor  reacquire  the  property  in  consequence  of  de- 
fault of  the  covenantee  in  the  payment  of  a  purchase-money  mort- 
gage, he  will  not  be  estopped,  to  set  up  a  title  thereafter  acquired 
by  him  under  foreclosure  of  a  mortgage  on  the  land  existing  at  the 
time  of  the  covenant.35 

A  provision  in  a  statute  that  an  after-acquired  title  of  the 
grantor  shall  enure  to  the  .benefit  of  the  grantee,  refers  to  acquisi- 
tion by  descent  as  well  as  by  other  methods.36 

The  estoppel  of  the  grantor  to  set  up  the  after-acquired  title 
enures  only  to  the  -benefit  of  the  grantee  and  of  those  in  privity 
with  him ;  the  principle  cannot  be  invoked  in  favor  of  one  who  was 
not  a  party,  nor  privy,  to  the  deed.37 

The  fact  that  the  conveyance  and  covenant  were  not  made  upon 
a  valuable  consideration  does  not  affect  the  operation  of  the  rule 
that  the  covenantor  is  estopped  to  set  up  the  after-acquired  title.38 

If  the  estate  be  acquired  through  a  conveyance  under  which  the 
grantee  is  merely  momentarily  seized  for  the  purposes  of  a  trans- 
fer, the  title  so  acquired  does  not  enure  to  the  benefit  of  one  to 
whom  such  grantee  had  previously  conveyed  the  premises.39 

§  209.  AFTER-ACQUIRED  ESTATE  MUST  BE  HELD  IN  SAME 
RIGHT.  The  after-acquired  estate  must  be  held  by  the  grantor  in 
the  same  right  as  that  in  which  the  conveyance  was  made.  Thus 
if  he  convey  in  his  individual  capacity,  and  reacquire  the  estate 
in  a  fiduciary  capacity,40  e.  g.,  as  trustee  express  or  implied,41  the 

85  Crosby  v.  Evans,   (Mo.  App.)    195  S.  W.  514. 

^Leflore  County  v.  Allen,  80  Miss.  298,  31  So.  Rep.  815. 

87  Jordan  v.  Chambers,  226  Pa.  573,  75  Atl.  956.  The  secretary  and  general 
manager  of  a  corporation,  who  induced  a  purchaser  to  buy  land  as  'belonging 
to  the  corporation  and  who  executed  a  deed  to  the  purchaser  on  behalf  of  the 
corporation,  was  held  estopped  to  set  up,  in  himself,  an  after-acquired  title 
to  the  land.  Mountain  Home  L.  Co.  v.  Swartwout,  30  Idaho  559,  166 
Pae.  271. 

33  Robinson  v.  Douthit,  64  Tex.  101;  Morris  v.  Short,  (Tex.  Civ.  App.) 
151  S.  W.  633. 

39Haslam  v.  Jordan,  106  Me.  49,  70  Atl.  1066. 

40  Jackson  v.  Hoffman,  9   Cow.    (X.  Y.)    271;    Sinclair  v.  Jackson,   8   Cow. 
,(N.  Y.)  587,  semble. 

41  Kelly  v.  Jenness,  50  Me.  455;   Gregory  v.  Peoples,  80  Va.  355.  See,  also, 
Cleveland  v.  Smith   (Tex.  Civ.  App.)    113  S.  W.  547;  Newton  v.  Easterwood 
(Tex.  Civ.  App.)   154  S.  W.  646. 

72 


570  MARKETABLE   TITLE  TO   REAL   ESTATE. 

after-acquired  title  will  not  enure  to  the  benefit  of  the  covenantor. 
Accordingly,  where  a  person  took  a  conveyance  in  his  own  name, 
the  consideration  for  which  was  advanced  by  another,  and  then 
conveyed  to  that  other,  it  was  held  that  he  was  not  estopped  from 
afterwards  acquiring  the  title  and  setting  it  up  against  the 
grantee.42 

So,  where  several  coparceners  exchanged  deeds  in  partition,  and 
one  of  them  afterwards  died,  it  was  held  that  the  survivors  were 
not  estopped  to  claim  an  interest  as  heirs  in  the  share  conveyed 
to  the  decedent."  So,  also,  where  a  corporation,  by  its  president, 
conveyed  its  property  with  warranty,  and  the  president  after- 
wards acquired  title  to  the  property  under  a  foreclosure  sale  by 
a  third  party.44 

§  210.  MUTUAL  ESTOPPELS.  If,  for  any  reason,  the  cove- 
nantee  is  estopped  to  pursue  his  remedy  against  the  covenantor,  in 
other  words,  if  there  are  mutual  estoppels,  the  after-acquired  title 
will  not  pass.  The  estoppel  is  thereby,  in  the  language  of  the 
ancient  common-law  authorities,  "set  at  large."'  The  simplest 
illustration  of  this  principle  is  furnished  by  an  exchange  of  lands 
in  which  the  parties  stipulate  that  in  case  either  is  evicted  he  may 
re-enter  upon  the  land  of  the  other.  In  such  a  case,  the  evicted 
party  is  not  estopped  by  his  warranty,  to  recover  his  original  land 
from  the  other.4* 

§  211.  ESTOPPEL  OF  MORTGAGOR.  A  mortgage  containing 
covenants  of  warranty  is  as  effectual  to  pass  an  after-acquired 

•Jackson  v.  Mill-.  13  Johns.  (N.  Y.)  463.  The  name  rule  applies  to  the 
converse  of  this  state  of  facts,  as  where  a  person  without  title  conveys,  anil 
afterwards  acquires  the  title  as  trustee.  Burchard  v.  Hubbard,  11  Ohio,  310. 

•Carson  v.  Carson,  122  N.  C.  645,  30  S.  E.  Rep.  4. 

"Venneule  v.  Hover,  113  Me.  74,  93  Atl.  37. 

•Com.  Dig.  Estoppel  E.;  Co.  Litt.  352!b;  Rawle  Covt.  $  252;  Kiml>all  v. 
SchofT,  40  N.  H.  100;  Carpenter  v.  Thompson,  3  N.  H.  204,  14  Am.  Dec.  348; 
III.  Land  Co.  v.  Bonner,  91  111.  114,  lift,  a  case  in  which  tenants  in  common 
made  partition  by  conveying  each  to  the  other  with  covenants  of  warrant  v. 
Brown  v.  Staple*.  28  Me.  503,  58  Am.  Dec.  504,  where  the  covenanters  had 
bjr  an  instrument  of  as  high  a  nature  a*  the  covenant,  undertaken  to  remove 
an  incumhrance  on  the  premises,  the  existence  of  which  was  rnmplained  of  an 
a  breach  of  covenant. 

•Grime*  v.  Redmon.  14  B.  Mon.  (Ky.)  234  (2d  ed.)  189;  Pugh  v.  Mayo, 
60  Tex.  191. 


ESTOPPEL    OF    THE    GRANTOR.  571 

title  as  a  conveyance  in  fee.47  And  a  mortgage  without  warranty 
has  been  held  sufficient  for  that  purpose;48  but  there  is  a  conflict 
of  authority  upon  this  point.49  A  covenant  of  warranty  contained 
in  a  purchase-money  mortgage  will  not  estop  the  mortgagor  to  set 
up  a  subsequently  acquired  title  against  the  mortgagee,30  nor  to 

47  Jones  on  Mortgages,  §§  561,  682,  825.    Judge  HARE'S  note  to  Duchess  of 
Kingston's  Case,  2  Sm.  Lead.  Gas.  (8th  Am.  ed.)   S38;  Edwards  v.  Davenport, 
4  McCr.  (U.  S.)   36;  Rice  v.  Kelso,  57  Iowa>  115,  10  N.  W.  Rep.  235;  Clark 
V.  Baker,  14  Cal.  612,  76  Am.  Dec.  449;  Chamberlain  v.  Meeder,  16  N.  H.  381; 
Cross  V.  Robinson,  21  Conn.  387;  Plowman  v.  Sh  idler,  36  Ind.  484;  Boone  v. 
Armstrong,  87  Indi  169;  Randall  v.  Lower,  98  Ind.  256;  People's  Sav.  Bank 
v.  Lewis   (Wash.),  79  Pac.  932;  Logue  v.  Atkinson   (Tex.  Civ.  App.),  80  S. 
W.  Rep.  137;  West  Miich.  Park  Asso.  v.  Ry.  Co.,  172  Mich.  179,  137  N.  W. 
799;   Broadway  v.  Sid  way,  84  Ark.  527,  107   S.  W.   163;   Steverson  v.   Agee 
Co.,  9  Ala.  App.  380,  63  So.  794;  Hill  v.  O'Brien,  104  Ga.  137,  30  S.  E.  996; 
Gallagher  v.  Stern,  250  Pa.  292,  95  Atl.  518.    The  estoppel  operates  not  only 
against  the  mortgagor,  but   against   one  who,  with  knowledge  of  the  facts, 
takes  from  the  mortgagor  a  warranty  deed,  free  from  incumbrances  on  the 
property.     Northrup  v.  Ackerman,  84  N.  J.  Eq.  117,  92  Atl.  909.     Where  a 
mortgage   conveyed   an   "  undivided   one-eighth    interest "   in    land,    and   the 
mortgagor  subsequently  acquired,  under  a  will,   another  one-eighth  interest 
in  the  land,  the  additional  one-eighth  interest  did  not  enure  to  the  benefit 
of  the  mortgagee.    Newell  v.  Banking  Co.  (Ky.)    118  S.  W.  267. 

48  Stewart  v.  Anderson,  10  Ala.  504 ;   American  Sav.  Bank  v.  Helgesen,  64 
Wash.  54,  116  Pac,  837,  Ann.  Cas.  1913  A.  390. 

40  Donovan  v.  Twist,  S3  N.  Y.  Supp.  76,  85  Aipp.  Div.  130;  Jackson  v. 
Littell,  56  N".  Y.  108. 

50Bigelow  Estoppel  (4th  ed.),  403;  Rawle  Covt.  §  267;  Co.  Litt.  390; 
Haynes  v.  Stevens,  11  X.  H.  32;  Randall  v.  Lower,  98  Ind.  256;  Ingalls  v. 
Cook,  21  Iowa  560;  Bro\vn  v.  Staples,  28  Me.  497,  58  Am.  Dec.  504;  Hardy 
T.  Nelson,  27  Me.  528;  Smith  v.  Cannell,  32  Me.  125;  Geyer  v.  Girard,  22 
Mo.  160;  Connor  v.  Eddy,  25  Mo.  72;  Kellogg  v.  Wood,  4  Paige  (N.  Y.), 
77;  Lot  V.  Thomas,  Penn.  (X.  J.)  300,  2  Am,  Dec.  354;  Sumner  v.  Barnard, 
12  Met.  (Mass.)  461;  Hancock  v\.  Carlton,  6  Gray  (Mass.),  61;  Pike  v. 
Goodnow,  12  Allen  (Mass.)  474.  A  contrary  decision  appears  to  have  been 
made  in  Hitchcock  v.  Fortier,  65  111.  239.  Here  the  land  was  conveyed  with- 
out warranty,  and  immediately  reconveyed  in  mortgage,  with  warranty,  to 
secure  the  purchase  money.  This  was  undoubtedly  a  case  of  great  hardship. 
The  original  grantor  had  no  title,  yet  as  mortgagee  he  reaped  the  full  benefit 
of  a  title  afterwards  acquired  by  the  mortgagor.  Such  a  decision  could  not 
have  been  rendered  if  the  original  grantor  had  conveyed  with  warranty.  It 
may  be  doubted  whether  the  fact  that  the  grantor  took  a  mortgage  on  the 
premises  to  secure  the  purchase  money  did  not  show  an  intent  to  convey  an 
estate  of  a  particular  description,  and  not  merely  such  interest  as  the  grantor 
might  have.  This  case  has  been  severely  criticised.  Rawle  Covt.  (5th  ed.) 
p.  425;  Bigelow  Estoppel  (4th  ed.),  404.  One  who  gives  a  purchase-money 


572  MARKETABLE   TITLE  TO   REAL   ESTATE. 

recover  on  the  covenants  in  the  original  conveyance  by  the  mort- 
gagee/1 the  deed  and  purchase-money  mortgage  being  regarded 
as  parts  of  one  and  the  same  transaction.  *'  Equity  does  not 
require  that  a  grantee  should  mortgage  back  a  greater  estate  than 
that  which  his  grantor  professed  to  vest  in  him;  nor  can  it  be 
implied  that  a  grantee,  in  mortgaging  back  the  land  for  the  pur- 
chase money,  intended  to  grant  an  estate  which  the  deed  assumed 
to  grant,  but  which  it  did  not  vest  in  him.52 

If  the  owner  of  land  execute  a  second  mortgage  on  it  with  cove- 
nants of  warranty  and  against  incumbrances,  and  afterwards  pay 
oif  the  first  mortgage,  the  payment  enures  to  the  benefit  of  the 
second  mortgagee,  and  the  grantor  is  estopped  from  claiming  to 
be  subrogated  to  the  benefit  of  the  first  mortgage.53 

A  mortgage  on  government  lands  given  by  the  entryman  is 
valid,  and  the  title  subsequently  perfected  by  issue  of  the  patent 
enures  to  the  benefit  of  the  mortgagee.54 

§  212.  EFFECT  OF  VOID  CONVEYANCE  AS  AN  ESTOPPEL. 
The  rule  that  an  after-acquired  title  passes  to  the  grantee  by  virtue 
of  the  grantor's  covenant  of  warranty  has  been  held  not  to  apply 
where  the  conveyance  is  prohibited  by  law,  e.  g.,  a  conveyance  of 
premises  in  the  possession  of  an  adverse  claimant.34*  In  t! 
States,  however,  in  which  a  champertous  deed  is  held  to  be  valid 
as  between  the  parties  though  void  as  to  strangers,  it  is  apjtr-- 
hended  that  the  after-acquired  title  would  pass  to  the  grant 

mortgage  that  includes  other  lands  not  granted  him  by  the  mortgagee,  will 
not  be  estopped  M  against  the  mortgagee  to  set  up  an  after-acquired  title  to 
thofte  lands.  Brown  v.  Phillips,  40  Mich.  264. 

"Rwwer  v.  Carney   (Minn.),  54  N.  W.  Rep.  89. 

•Randall  v.  Lower,  98  I  ml.  256. 

"Butler  v.  Reward,  10  Allen  (Mass.),  4(56;  Corns  tock  v.  Smith,  13  Pick. 
(Ham.)  119,  23  Am.  Dec.  070;  Trull  v.  EaMman,  3  M.-t.  (Maw.)  124,  37 
Am.  Dec.  !:>•»;  Hooper  v.  Henry,  31  Minn.  -ji.i.  17  X.  \V.  Ilop.  476. 

MAdam  v.  M.  <  lintook,  21  N.  D.  483,  131  N.  W.  304. 

**»  Kennedy  T.  McCartney,  4  Port.   (Ala.)    HI,  158.  (he  court  savin? 
the  covenantor  in  not  extopped  where  ho  is  inhibited  from  selling  by  th««  Ictt.-r. 
npirit  or  policy  of  a  legislative  act.     Kercheval  v.  Triplet  t.   1    A.   K.   M  tr>!i. 
(Ky.)  403;  Altemun  v.  Nichols,  24  Ky.  Law  R,  2401,  74  S.  \\ .  Ki-p.  £il. 

*  Farnum  v.  Peterson,  111  Mans.  148,  the  court  say  in  ir:     "\Vhcn  it  i- 
thnt  the  dned  of  one  who  is  dJMdstd  is  void,  it  is  intended  only  that    , 
inoperative  to  convey  legal  title  and  seisin,  or  a  right  of  entry  upon  which  th  • 
'••i«  may  maintain  an  action  in  his  own  name  again -t  one  \\li<>  has  actual 


ESTOPPEL    OF    THE    GRANTOR.  573 

Upon  the  same  principle  it  has  been  held  that  no  estoppel  arises 
out  of  a  fraudulent  conveyance  with  covenant  of  warranty;  the 
subsequently-acquired  title  cannot  be  thus  made  to  enure  to  the 
benefit  of  the  fraudulent  grantee,  and  the  grantor  be  permitted 
to  accomplish  by  indirection  what  the  law  forbids  to  be  directly 
done.56  But  where  the  rights  of  creditors  are  not  concerned,  the 
fact  that  a  deed  is  fraudulent,  and  the  fraud  known  to  both 
parties,  will  not  prevent  an  after-acquired  title  from  enuring  to 
the  grantee.  In  such  a  case  the  law  will  not  assist  the  grantor 
to  avoid  a  consequence  of  his  own  fraud.57 

It  has  been  held  that  a  conveyance  of  the  homestead  by  the 
husband,  with  warranty,  where  void  under  the  laws  of  the  State 
because  not  executed  by  the  wife  also,  does  not  estop  the  grantor 
from  setting  up  title  in  himself  after  the  death  of  the  wife.58 

If  a  deed,  by  reason  of  imperfect  execution,  be  insufficient  to 
pass  the  estate,  and  the  grantor  having  no  title,  afterwards  acquire 
title,  it  will  not  enure  to  the  benefit  of  the  grantee.59  If  this  were 
not  so,  land  might  be  made  to  pass,  otherwise  than  by  deed,  will 
or  descent.  It  would  be  absurd  to  hold  that  an  instrument,  which 
the  law  declares  to  be  wholly  invalid,  should,  nevertheless,  by 
reason  of  the  covenants  of  the  grantor,  operate  effectually  as  a 

seisin.  It  is  not  void  as  a  contract  between  the  parties  to  it.  The  grantee 
may  avail  himself  of  it  against  the  grantor  by  way  of  estoppel,  or  by  suit 
upon  the  covenants ;  or  he  may  recover  the  land  by  an  .action  in  the  name  of 
the  grantor.  Although  he  has  no  right  of  entry,  yet  if  by  lawful  means  he 
comes  into  possession,  he  may  then  avail  himself  of  the  title  of  his  disseised 
grantor,  and,  by  uniting  that  to  his  own  present  possession,  defeat  recovery 
by  the  intennediate  disseisor.  Wade  v.  Lindsay,  6  Met.  (Mass.)  407,  413; 
Cleveland  v.  Flagg,  4  Cush.  (Mass.)  76.  And  his  title  will  also  be  made  good 
against  any  one  attempting  to  set  up  a  deed  from  his  grantor  subseqmnt 
to  his  own.  White  v.  Patten,  24  Pick.  (Mass.)  324." 

59  Stokes  v.  Jones,  18  Ala.  734;  S.  C.,  21  Ala.  738,  the  court  saying,  in  the 
latter  case,  that  the  grantor  cannot  avoid  the  claims  of  creditors  or  bona  fide 
purchasers,  by  conveying  with  warranty  to  defraud  them,  and  afterwards  ac- 
quiring the  title.  Gilliland  v.  Fenn,  90  Ala.  230,  8  So.  15,  9  L.  LI.  A.  413: 
Donehoo  v.  King,  (W.  Va.)  98  S.  E.  520;  Troxell  v.  Stevens,  57  Xeb.  329, 
77  N.  W.  781i 

"Barton  v.  Morris,  15  Ohio,  408;  Smith  v.  Ingram,  132  N.  C.  959,  44= 
S.  E.  Rep.  643,  61  L.  R.  A.  878. 

"Bolen  v.  Lilly,  85  Miss.  344,  37  So.  Rep.  811. 

"Wallace  v.  Miner,  6  Ohio,  367,  371. 


574  MARKETABLE   TITLE   TO   REAL   ESTATE. 

grant  and  transfer  of  the  estate.60  Accordingly  a  deed  insufficient 
for  want  of  attestation  as  required  by  law,  was  held  not  to  estop 
the  grantor,  even  though  it  contained  a  general  warranty.61  Nor 
is  a  married  woman  estopped  by  a  deed  which,  by  statute,  she 
was  incompetent  to  execute.63  A  distinction  appears  to  have  been 
made  between  deeds,  void  for  want  of  due  execution,  and  such  as 
are  insufficient  for  want  of  proper  words  of  conveyance,  as  respects 
their  operation  by  way  of  estoppel.  Thus  it  has  been  held  that 
an  instrument,  void  as  a  deed  for  want  of  words  of  grant,  but 
containing  a  general  warranty,  was  sufficient  to  estop  the  grantor 
from  setting  up  an  after-acquired  title  to  the  land;63  and  that  a 
deed  inoperative  to  convey  a  fee  by  way  of  grant,  for  want  of 
words  of  inheritance,  will,  if  it  contain  a  general  warranty,  have 
that  effect  by  way  of  estoppel.64 

A  conveyance  of  a  part  of  the  public  lands  by  one  who  has 
made  an  entry  thereon,  but  whose  title  has  not  been  perfected  by 
fulfillment  of  all  the  requirements  of  the  land  laws,  is  void  as 
between  the  grantor  and  the  United  States,  but  has  been  held 
valid  as  between  the  grantor  and  grantee;  so  that  upon  the  issuing 
of  a  patent  after  final  proof  by  the  entryman,  the  title  so  acquired 
enures  immediately  to  the  benefit  of  the  grantee.65 

The  validity  of  the  deed  and  its  effect  by  way  of  estoppel,  are  to 
be  determined  by  the  law  of  the  place  where  the  land  is  located, 
and  not  by  the  law  of  the  place  where  the  deed  was  made.66 

••Connor  v.  McNhirray.  2  Allen    (Maw.  i,  204. 

"Patterson  v.  Pease,  5  Ohio,  101. 

"Kemery  v.  Taylor,  176  Ind.  6f»0,  Ofi  X.  E.  050. 

•Brown  v.  Mantcr,  1  Fcwt.   (X.  H.)   528,  53  Am.  Dec.  223. 

*Terrett  v.  Taylor,  9  Cranch  (U.  S.),  53;  Somes  v.  Skinner,  3  Pick. 
(Mnn«.)  60. 

"Anderson  v.  Wilder,  «3  Miss.  606,  35  So.  Rep.  875;  Gouph  v.  Cutter,  57 
WmOi.  276.  100  Pac.  774;  Orpan  v.  Runnell,  (Mo.)  184  S.  W.  102;  Case  v. 
Stipe*.  (Mo,)  217  S.  W.  30fl:  Ke-tchiim  Coal  Co.  v.  Coal  Co.,  50  Utah  305, 
168  Pac.  86;  Ki'Miutn  v.  Coal  Co.,  257  Fed.  274,  168  C.  C.  A.  358.  Where 
the  grantee  of  an  entryman  assumed  his  obligation  to  the  State  for  the 
piirrhuHe-nmney  and  made  default  therein,  and  the  land1  was  rcttold  by  the 
State  and  re-pun  linncd  liy  iho  entryman,  the  latter  wa»  not  entopped  from 
fM'ttintf  up  the  title  «>  acquired  aptinttt  hi*  grantee.  Houston  Oil  Co.  v. 
Lumber  Co..  (Tex.  Civ.  App.i  HI  S.  W.  745. 

"Smith  v.  Infrram,  132  X.  C.  050,  44  S.  E.  Rep.  043,  61  L.  R.  A.  878. 


ESTOPPEL    OF    THE    GRANTOR. 


575 


§213.  EFFECT  OF  ESTOPPEL  AS  AN  ACTUAL  TRANSFER  OF 
THE  AFTER- ACQUIRED  ESTATE.  It  seems  to  be  established  in 
America  that  the  effect  of  an  estoppel  arising  from  the  covenants 
or  recitals  by  the  grantor  in  his  deed,  is  to  actually  transfer  the 
after-acquired  estate  to  the  grantee,  so  as  to  obviate  the  necessity 
of  a  second  conveyance  of  the  premises,67  or  of  resort  to  the  courts 
to  compel  the  transfer.68  The  learned  commentators  upon  this 

w  This,  while  deprecated,  is  admitted  by  Mr.  Rawle  to  be  the  rule  in  most 
of  the  States.     Covts.  for  Title  (5th  ed.),  §  248.    The  actual  transfer  of  the 
after-acquired  estate  to  the  grantor  by  force  of  the  estoppel  is  recognized  in 
the  following  cases,   though  it  was  unnecessary  in  few,  if  any  of  them,  to 
decide   anything  more  than  that  the   grantor   could  not  set  up  the  after- 
acquired  title  as  against  the  grantee:    Hoyt  v.  Dimon,  5  Day   (Conn.),  479; 
Dudley  v.  Cadwell,  119  Conn.  226;   Rigg  v.  Cook,  4  Gil.    (111.)    336,  46  Am. 
Dec.  462;   Bank  v.  Mersereau,  6  Barb.  Ch.    (1ST.  Y.)    528;  Middlebury  College 
v.  Cheney,  1  Vt.  349;  Moore  v.  Rake,  2  Dutch.  (N.  J.)  574;  Vreeland  v.  Blau- 
velt,  23  N.  J.  Eq.  483;  Bell  v.  Adams,  81  N.  C.  118;  Olds  v.  Richmond  Cedar 
Works,   173  N.   C.   161,  9-1   S.   E.   846;   Gallagher  v.   Stern,   250  Pa.  292,  95 
Atl.  518;    Douglas  v.  Scott,  5  Ohio,   199;    Bailey  v.  Hoppin,   12   R.   I.   560; 
Barr  v.  Gratz,  4  Wh.    (U.  S.)    222;   Harmer  v,  Morris,   1  McL.    (U.  S.)    44. 
In  Kinsman  v.  Loomis,  11  Ohio,  479,  it  was  said  that  the  grantee  might  not 
only  avail   himself   of   the  estoppel   defensively,   but  that   it  would    sustain 
ejectment  by  him,  citing  Hill  Abr.  401.     In  Brown  v.  Manter,  1  Fost.  (N.  H, ) 
528,  53  Am.  Deo.  223,  it  was  held  that  the  operation  of  an  estoppel  was  to 
prevent  circuity  of  action  and  not  to  transfer  the  estate.     In  Burtners  v. 
Keran,  24  Grat.   (Va.)    42,  it  was  held  that  a  deed  of  bargain  and  sale  with 
warranty,  while  it  estopped  the  grantor  from  setting  up  title  to  the  after- 
acquired  estate,  did  not  operate  as  an  actual  transfer  of  that  estate.     Such 
an  effect  could  be  given  only  to  a  fine,  feoffment,  common  recovery,  or  other 
conveyance  of  like  dignity,  at  common  law.     Inasmuch  as  a  deed  of  bargain 
and  sale  has,  in  America,  completely  superseded   these  ancient  common-law 
modes  of  conveyance,  and  accomplishes  all  of  their  purposes,  it  is  difficult 
to  perceive  why  it  should  not  be  given  the  same  effect  by  way  of  estoppel. 
Mr.  Rawle  cites  a  large  number  of  American  cases  to  the  proposition  that 
the  effect  of  a  conveyance  with  covenants  of  warranty  is  to  actually  transfer 
to  the  covenantee  any  title  which  the  covenantor  may  afterwards  acquire. 
Examination  of  these  cases  will  show,  as  observed  by  Mr.  Bigelow   (Estoppel 
[4th  ed.],  420),  that  in  few,  if  any  of  them,  was  it  necessary  to  decide  that 
the  estate  was  actually  transferred  by  the  estoppel,  there  being  no  question 
raised  as  to  the  rights  of  a  purchaser  of  the  after-acquired  title,  nor  as  to 
the  right  of  the  covenantee  to  compel  the  covenantor  to  accept  such  title  in 
Tieu   of   damages   for   a   breach   of   covenant.      Those   cases   may   be   seen   on 
pp.  367,  380,  Rawle  Covt.   (5th  ed.).     Most  of  them  are  mere  reiterations  of 
the  well-established  rule  that  the  grantor  cannot  set  up  the  after-acquired 
title  against  his  grantee. 

^Donohue  v.  Vosper,  189  Mich.  78,  155  N,  W.  407. 


576  MARKETABLE   TITLE   TO   REAL   ESTATE. 

somewhat  abstnise  branch  of  the  law  of  real  property  have  devoted 
much  space  to  the  consideration  of  the  question  whether  the  effect 
of  the  estoppel  is  to  actually  transfer  the  estate,  or  merely  to 
rebut  any  claim,  which  the  grantor  might  make,  to  the  estate  by 
virtue  of  the  after-acquired  title.  Inasmuch  as  the  grantee  would, 
in  either  case,  be  in  the  actual  possession  and  enjoyment  of  the 
estate,  the  question  would  seem  to  have  little  or  no  practical 
value,  but  for  the  bearing  which  it  has  upon  two  other  questions, 
namely:  (1)  Whether  one  who  purchases  the  after-acquired 
ritle  from  the  grantor,  without  notice  of  the  rights  of  the  prior 
purchaser,  who  bought  when  the  grantor  had  no  title,  will  be 
preferred  to  such  purchaser.  (2)  Whether  the  covenantee  can  be 
compelled  to  accept  the  after-acquired  title  in  lieu  of  damages  for 
the  breach  of  the  covenant;  in  other  words,  whether,  after  the 
contract  has  been  executed  by  a  conveyance  with  covenants  of 
warranty,  the  grantor  will  be  permitted  to  perfect  the  title  by 
getting  in  the  rights  of  an  adverse  claimant,  so  that  the  same  may 
enure  to  the  benefit  of  his  grantee,  and  prevent  an  action,  at  law 
for  the  breach  of  his  covenant. 

With  respect  to  the  first  question,  the  doctrine  of  an  actual 
transfer  of  the  after-acquired  title  has  been  considered  to  furnish 
some  ground  for  those  cases  which  hold  that  a  purchaser  of  that 
title,  without  notice,  takes  subject  to  the  rights  of  the  original 
purchaser,  the  covenantee ;  and  as  to  the  second  question,  that  the 
effect  of  that  doctrine  is  to  deprive  the  covenantee  of  his  election 
to  recover  damages  for  a  breach  of  the  covenant,  or  to  take  the 
after-acquired  title.  It  remains  now  briefly  to  consider  both  of 
these  questions. 

§214.  BIGHTS  OF  PURCHASER  OP  AFTER- ACQUIRED  TITLE. 
It  seems  to  be  a  generally  accepted  rule  throughout  the  United 
States  that  a  purchaser  in  searching  the  records  for  any  prior 
conveyance  which  the  vendor  may  have  made,  need  not  extend  his 
March  back  beyond  the  time  at  which  the  instrument  evidencing 
the  vendor's  title*  was  admitted  to  record.  If  the  rule  wereother- 

•2  Pom.  Eq.  Jur.  (13th  ed.)  5  761,  and  rimes  there  cited.  Rubric  Covt. 
(5th  ed.  i  |  250,  where  the  author  HHJTH  that  a  purchaser  who  aearrhe*  the 
reprint  ry  for  prcvtnu*  dwd»  made  l>v  1m  grantor,  is  not  obliped  to  gn  beyond 
what  it  called  "  the  line  of  tHle,"  and  thai  it  would  be  affectation  to  cite 
authority  for  cm-h  familiar  knowledge. 


ESTOPPEL,    OF   THE    GRANTOR.  577 

wise  the  labors  of  the  purchaser  would  be  multiplied  indefinitely, 
for  not  only  would  he  be  compelled  to  cover  in  his  search  a  period 
of  time  in  which  the  grantor  might  have  conveyed  the  premises 
when  he  was  without  title,  but  a  similar  search  would  be  necessary 
at  each  successive  step  backward  in  the  chain  of  title.  In  a  few  of 
the  States,  however,  it  has  been  held  that  not  only  is  the  grantor 
estopped  from  denying  that  he  had  title  at  the  time  of  his  con- 
veyance as  against  his  grantee,  but  that  the  estoppel  extends  to  a 
purchaser  of  the  after-acquired  title  from  the  grantor,  even  though 
he  had  no  notice  of  the  prior  conveyance,  and  prevents  him  from 
setting  up  such  title  against  the  original  grantee ;  and  this  upon 
the  ground  that  the  effect  of  the  estoppel  is  to  actually  transfer  to 
the  grantee  the  after-acquired  title  and  to  override  any  subsequent 
alienation  of  the  premises  by  the  grantor.70  But  this  extension  of 
the  doctrine  of  estoppel  has  been  denied  by  the  courts  of  other 
States,  and  vigorously  combated  by  able  and  discriminating  text- 
writers.71  They  argue  that  the  original  purchaser  having  bought 
without  examining  the  title,  or  with  knowledge  that  the  title  was 

70  3  Washb.  Real  Prop.  (4th  ed.)  p.  118;  Trevivan  v.  Lawrence,  1  Salk. 
276;  S.  C.,  6  Mod.  258;  Ld.  Raym.  1051;  Somes  v.  Skinner,  3  Pick.  (Mass.) 
52;  White  v.  Patten,  24  Pick.  (Mass.)  324;  Russ  v.  Alpaugh,  118  Mass. 
369,  376,  19  Am.  Rep.  464;  Knight  v.  Thayer,  125  Mass.  27,  where  it  was 
said  by  the  court:  "We  are  aware  that  this  rule,  especially  as  applied  to 
subsequent  grantees,  while  followed  in  some  States,  has  been  criticised  in 
others.  *  *  *  But  it  has  been  too  long  established  and  acted  on  in  Massa- 
chusetts to  be  changed,  except  by  legislation."  Jarvis  v.  Aiken,  25  Vt.  635; 
Tefft  v.  Munson,  57  N.  Y.  97.  Compare  Bernardy  v.  Mortgage  Co.  (S.  Dak.), 
98  N.  W.  Rep.  167.  In  McCusker  v.  McEvoy,  9  R.  I.  528,  11  Am.  Rep.  295, 
it  was  said  that  the  rule  should  be  altered  by  statute  in  order  to  give  full 
effect  to  the  registry  laws,  and  prevent  them  from  operating  as  a  snare 
rather  than  a  protection  to  purchasers.  In  Phelps  v.  Kellogg,  15  111.  131, 
a  purchaser  of  the  after-acquired  title  was  charged  with  notice  of  a  prior 
deed  by  his  grantor  which  was  recorded  before  the  latter  acquired  title.  Mr. 
Rawle  comments  upon  the  foregoing  decisions  as  follows :  "  These  cases-  are 
wholly  indefensible,  and  are  opposed  not  only  to  the  registry  acts  at  law, 
but  also  to  elementary  principles  of  equity.  Nor  can  such  cases  be  sustained 
upon  the  ground  that  the  doctrine  has  become  a  rule  of  property,  for  there 
is  no  rule  of  property  involved  in  protecting  a  negligent  purchaser  who  buys 
what  his  vendor  has  not  got  to  sell."  Covts.  (5th  ed.)  p.  424. 

n Judge  HAKE'S  note,  Doe  v.  Oliver,  2  Sm.  L.  Cas.  700;  Calder  v.  Chapman, 
52  Pa.  St.  359,  91  Am.  Dec.  163,  overruling  in  effect  Brown  v.  McCormick, 
73 


578  MARKETABLE  TITLE   TO  REAL   ESTATE. 

bad  if  he  made  such  examination,  is  in  no  position  to  demand 
favors.  It  is  true  that  the  question  is,  where  there  was  a  war- 
ranty of  the  title  in  each  case,  but  little  more  than  which  of  the 
grantees  shall  be  forced  to  an  action  on  the  covenant,  but  to  this 
it  is  replied  that  the  first  purchaser  has  no  right  by  his  negligence 
to  deprive  the  second  purchaser  of  the  estate  and  to  force  him  to 
an  action  on  the  covenant,  which,  from  the  insolvency  of  the  cove- 
nantor or  from  many  other  causes,  may  prove  an  unavailing 
remedy.  Where  one  of  two  innocent  persons  must  suffer  a  loss, 
it  should  be  imposed  upon  him  whose  negligence  made  the  loss 
possible.  Besides,  to  extend  the  estoppel  to  a  purchaser  of  the 
after-acquired  estate,  would  virtually  repeal  the  registry  laws  in 
nearly  every  State  of  the  Union,  or  rather  give  them  an  effect 
which  they  were  not  intended  to  have,  that  is,  to  charge  a  pur- 

6  Watts  (Pa.)  60,  21  Am.  Dec.  450;  Dodd  v.  Williams,  3  Mo.  App.  278; 
Burke  v.  Bevt?ridge,  15  Minn.  131;  May  v.  Arnold,  18  Ga.  181;  Faircloth  v. 
Jordan,  18  Ga.  352.  A  purchaser,  is  not  required  to  search  for  incumbrances 
upon  the  premises  executed  by  his  grantor  prior  to  the  time  when  he  obtained 
title.  Farmers'  Loan  &  Tr.  Co.  v.  Maltby,  8  Paipe  (X.  Y.),  361;  Doswll 
v.  Buchanan,  3  Leigh  (Va.),  365.  23  Am.  Dec.  280.  where  the  same  rule  was 
applied,  though  the  grantor  had  the  equitable  title.  See  Judge  HARE'S  note. 
Doe  v.  Oliver,  2  Smith's  L.  C.  TOO.  where  it  is  said:  "The  strongest  argument 
agaiiirit  permitting  the  covenants  or  recitals  in  a  deed  to  extend  beyond  the 
person  of  the  grantor  to  an  estate  which  he  does  not  hold  at  the  time,  is 
thut  it  necessarily  tends  to  give  a  vendee  who  has  been  careless  enough  to 
buy  what  the  vendor  has  not  got  to  sell  a  preference  over  subsequent  pur- 
chasers who  have  expended  their  money  in  good  faith  and  without  being 
guilty  of  negligence.  Such  a  result  seems  to  be  at  variance  with  the  re- 
cording acts  of  the  country,  which  are  generally  held  not  to  require  an 
examination  of  the  record  prior  to  the  period  at  which  the  title  conveyed 
vented  in  the  vendor.  To  allow  a  title  to  pass  by  a  conveyance  executed  and 
recorded  before  it  is  acquired  may,  therefore,  be  a  surprise  on  subsequent 
purchasers  against  which  it  is  not  in  their  power  to  guard;  and  is  contrary 
to  the  equity  which  is  the  chief  aim  of  the  doctrine  of  estoppel,  as  moulded 
by  the  liberality  of  modern  time*.  It  is,  therefore,  more  consistent  with 
reason,  as  well  a*  with  principle,  to  treat  deeds  made  by  a  grantor  without 
title  an  creating  an  equity  which,  though  binding  an  between  the  original 
particn,  cannot  be  enforced  apainst  purchasers  without  notice.  The  unman- 
ageable character  of  estoppc-lK,  founded  solely  on  common  law  and  technical 
grounds,  is  a  reason  for  not  invoking  their  assistance  in  any  case  where  it 
is  not  absolutely  needed,  and  for  confining  the  operation  of  deeds  on  an 
After-acquired  interest  in  lands,  to  the  creation  of  an  equity  which  will 
bind  »ub«cqucnt  grantee*  with  notice  without  endangering  the  title  of  a 
bona  firlr  purrhaMT.'* 


ESTOPPEL    OF    THE    GRANTOR.  579 

chaser  with  notice  of  a  conveyance  executed  between  parties  who 
were  strangers  to  the  title. 

In  many  of  the  States  there  are  statutes  which  provide  in  sub- 
stance that  an  after-acquired  title  shall  pass  to  the  grantee.72  It 
does  not  appear,  however,  from  their  terms  or  from  judicial  con- 
struction, that  they  amount  to  anything  more  than  affirmation 
of  the  existing  rule  as  it  respects  the  covenantor,  or  that  it  was 
thereby  intended  to  enlarge  the  rights  of  the  original  grantee,  as 
against  a  purchaser  of  the  after-acquired  title  without  notice.73 
It  frequently  happens  that  the  equitable  owner  of  lands,  e.  g.,  one 
who  has  paid  the  purchase  money  in  full  but  has  not  received  a 
conveyance,  sells  and  conveys,  or  mortgages  his  interest  in  the 
premises,  and  afterwards  receives  a  conveyance  of  the  legal  title, 
whether  in  such  a  case,  a  subsequent  grantee  without  notice  of  the 
rights  of  the  purchaser  of  the  equitable  title,  would  be  estopped  to 
set  up  the  after-acquired  legal  title  seems  to  have  been  nowhere 
clearly  decided.74  It  has  been  intimated  in  Georgia  that  in  such  a 

"Arizona  Comp.  L.  1877,  p.  384,  §  33;  Ark.  Mansf.  Dig.  1884,  §  642;  Cal. 
Hitts  Code,  1876,  §  6106;  Colo.  Gen.  Stats.  1883,  §  201;  Dak.  Lev.  Rev.  Code, 
1883),  vol.  2,  p.  883,  subd.  4;  Ga.  Rev.  Code,  1882,  §  2690;  111.  Rev.  St.  p.  279, 
§  7;  Iowa  Rev.  Code,  1884,  §  1931;  Kans.  Comp.  Laws,  1879,  p.  21,1,  §  5; 
Miss.  Code  1880,  §  1195;  Mo.  Rev.  St.  1879,  §  3940;  Mont.  Rev.  St.  1879,  p. 
443,  §  209;  Neb.  Comp.  St.  1885,  p.  482.,  §  51;  Nev.  Comp.  L.  1873,  p.  84, 
§  261 ;  Wash.  Ty.  Code,  1881,  App.  25. 

73  Mr.  Rawle  is  of  the  opinion  that  the  effect  of  these  statutes  is  to  over- 
ride any  equities  that  might  otherwise  avail  the  second  purchaser.  Covts.  for 
Title  (5th  ed.),  p.  3?0n.  The  Kansas  statute  (Comp.  L.  1879,  p.  211,  §  5)  is, 
perhaps,  as  unfavorable  to  the  second  purchaser  as  ftny.  It  provides  that 
"  where  a  grantor,  by  the  terms  of  the  deed,  undertakes  to  convey  to  the 
grantee- an  indefeasible  estate  in  fee  simple  absolute,  and  shall  not  at  the  time 
of  such  conveyance  have  the  legal  title  to  the  estate  sought  to  be  conveyed, 
but  shall  afterwards  acquire  it,  the  legal  estate  subsequently  acquired  by  him 
shall  immediately  pass  to  the  grantee,  and  such  conveyance  shall  be  as* 
effective  as  though  such  legal  estate  had  been  in  the  grantor  at  the  time  of 
the  conveyance."  It  is  to  be  observed  thai  this  statute  does  not  in  terms 
provide  that  the  original  conveyance  shall  be  effective  against  a  purchaser 
of  the  after-acquired  title  without  notice,  and  it  may  well  be  doubted  whether 
the  statute  was  so  intended. 

"Unless  in  Doswell  v.  Buchanan,  3  Leigh  (Va.),  365,  23  Am.  Dec.  280, 
where  H,,  having  only  an  equitable  estate  in  lands,  conveyed  the  same  in 
trust  to  secure  a  debt  which  deed  was  duly  recorded,  and  after  acquiring  the 
legal  title,  conveyed  to  D.  with  warranty.  It  was  held  that  the  recording 


580  MAUKETABLE   TITLK   TO   REAL   ESTATE. 

case,  the  first  grantee  had  a  right  to  establish  an  equitable  title  as 
against  the  second  grantee.75  It  is  difficult  to  distinguish  such  a 
case  from  one  in  which  the  grantor  had  no  title,  legal  or  equitable, 
at  the  time  of  the  tirst  conveyance,  and  it  would  seem  that  in  either 
case  the  second  purchaser  being  without  notice  from  the  registry 
of  the  rights  of  the  first  purchaser,  would  not  be  estopped  to  set  up 
the  after-acquired  legal  title.  Of  course  if  the  second  grantee 
has  actual  notice  of  the  rights  of  the  first  purchaser,76  as  where  he 
sees  him  in  the  possession  of  the  estate,77  he  cannot  hold  the  sub- 
sequently-acquired title  as  against  such  purchaser,  for  he  can  no 
longer  claim  to  be  a  purchaser  of  that  title  without  notice. 

If  the  purchaser  of  the  after-acquired  title  be  not  a  privy  to 
the  conveyance  under  which  the  estoppel  is  claimed  to  arise,  he 
will  of  course  hold  the  estate  as  against  the  grantee.  Thus,  where 
an  heir,  before  the  death  of  his  ancestor,  conveyed  all  of  his 
interest  in  the  ancestor's  estate,  a  purchaser  at  a  sale  made  after 
descent  of  the  property,  under  a  judgment  against  the  heir  entered 
before  the  conveyance,  being  neither  a  party  nor  privy  to  that 
conveyance,  was  held  not  to  be  estopped  thereby,  and  to  be  entitled 
to  the  land.  In  other  words,  an  estoppel  cannot  affect  a  purchaser 
under  a  judgment  against  the  grantor,  entered  prior  to  the  con- 
veyance creating  the  estoppel.78 

Creditors  of  the  grantor  are  not  purchasers,  and,  of  course,  can- 
not subject  the  after-acquired  estate  to  the  payment  of  their  debts 

of  th."»  dvod  conveying  the  rr/uHnbJp  estate  was  not  constructive  notice  of 
tluit  deed  to  I).,  on  the  ground  that  the  statute  requiring  deeds  to  he  recorded, 
makes  them  void  na  to  sttbaequent  purchase™  without  notice  if  not  recorded, 
hut  Divert  them  no  additional  validity  (as  notice)  if  recorded.  The  principle 
of  thi«  decision  wws  afterwards  affirmed  in  Virginia  by  a  statute  which 
provides:  "  A  purchaser  nhnll  not  he  affected  bj  the  record  of  a  deed  or 
contract  mndo  by  a  person  under  whom  hi*  title  is  not  derived,  nor  by  the 
record  of  a  deed  or  contract  made  by  any  person  before  the  date  of  a  deed 
or  contract  made  to  or  with  Biich  person,  which  is  duly  admitted  to  record, 
and  from  whom  the  title  of  Htich  person  is  derived."  Va.  Code,  1887,  8  2473. 

wB«T5iw  v.  Vanrant.  15  Oa.  521. 

"Gnrhrnnur  v.  Mowry,  33  III.  331:  Great  Falls  Ice  Co.  v.  Worster,  15 
N*.  H.  412:  Wark  v.  Willard,  13  N.  H.  380. 

rtl)oe  v.  Dowdall,  3  Houst   (Del.)   309. 

•JarJuon  v.  Bradford,  4  Wend.  (N.  Y.)  619. 


ESTOPPEL    OF    THE    GRANTOR.  581 

as  against  the  grantee.79  A  different  rule  may  prevail  in  those 
States  in  which  lien  creditors  are  given  priority  over  an  unre- 
corded deed,  assuming  that  the  deed  to  the  grantee,  recorded  at  a 
time  when  his  grantor  had  no  title,  is  to  be  treated,  to  all  intents 
and  purposes  of  the  registry  acts,  as  an  unrecorded  deed.80 

§  215.  COMPULSORY  ACCEPTANCE  OF  AFTER-ACQUIRED 
TITLE  IN  LIEU  OF  DAMAGES.  So  long  as  a  contract  for  the  sale 
of  lands  remains  executory,  there  is  no  doubt  as  to  the  right  of  the 
vendor,  in  most  cases  in  which  time  is  not  of  the  essence  of  the 
contract,  to  perfect  the  title  to  the  estate  by  purchasing  the  rights 
of  an  adverse  claimant,  and  to  compel  the  vendee  to  accept  the 
title  when  so  perfected.81  But  if  the  contract  has  been  executed 
by  a  conveyance  with  a  covenant  of  warranty,  or  a  covenant  of 
seisin,  the  grantor  cannot,  after  a  right  to  recover  substantial 
damages  for  a  breach  of  those  covenants  has  accrued  to  the 
grantee,  as  where  he  has  been  evicted  from  the  premises,  buy  in 
the  rights  of  the  adverse  claimant  and  require  the  grantee  to  take 
the  title  so  acquired  in  lieu  of  his  damages.82  Of  course,  as  will 

79Kimball  v.'Blaisdell,  5  N.  H.  533,  22  Am,  Dec.  476;  Watkins  v.  Warsell, 
15  Ark,  73;  Brown  v.  Blake,  35  Okl.  4981,  130  Pac.  155;  Lamprey  v.  Pike,  28 
Fed.  30;  Trudeau  v.  Fischer,  96  Neb.  275,  147  N.  W.  698. 

80  As  in  Virginia,  Guerrant  v.  Anderson,  4  Rand.  (Va.)  208. 

81  Ante,  §  202. 

MWashb.  Real  Prop.  673;  Rawle  Covt,  (2d  ed.  244)  ;  Bigelow  on  Estoppel, 
p.  400;  Burton  v.  Reeds,  20  Ind.  92;  Bethell  v.  Bethell,  92  Ind.  318,  328; 
Jones  v.  Gallagher,  54  Okl.  611,  154  Pac.  552;  So.  Plantation  Co. 
v.  Kennedy,  104  Miss.  131,  61  So.  166;  Nichols  v.  Alexander, 
28  Wis.  118;  Mtelnnis  v.  Lyman,  62  Wis.  191,  22  N.  W.  Rep.  405. 
In  both  of  these  cases  the  eviction  was  constructive,  -fclie  covenantees 
never  having  gotten  possession  of  the  property  conveyed.  Cf.  Nbonan 
v.  Illsey,  21  Wis,  139,  84  Am.  Dec.  742;  Blanchard  v.  Ellis,  1  Gray 
(Mass.),  199;  61  Am.  Dec.  417,  where  the  court  said:  "Supposing  it  to 
be  well  settled  that  if  a  new  title  come  to  the  grantor  before  the  eviction  of 
his  grantee,  it  would  enure  to  the  grantee,  and  not  deciding,  because  the  case 
does  not  require  it,  whether  the  grantee  even  after  eviction  might  elect  to  take 
such  new  title  and  the  grantor  be  estopped  to  deny  it,  we  place  the  decision 
of  this  case  upon  this  precise  ground,  that  where  a  deed  of  land  has  been 
made  with  covenants  of  warranty,  and  the  grantee  has  been  wholly  evicted 
from  the  premises  by  a  title  paramount,  the  grantor  cannot  after  such  entire 
eviction  of  the  grantee  purchase  the  title  paramount  and  compel  the  grantee 
to  take  the  same  against  his  will,  either  in  satisfaction  of  the  covenant 
*  *  *  or  in  mitigation  of  damages  for  the  breach  of  it."  In  Winfrey 


582  MARKETABLE  TITLE   TO   REAL   ESTATE. 

be  readily  perceived,  the  covenantee  could  have  no  object  in  reject- 
ing the  after-acquired  title  and  demanding  his  damages,  unless  the 
property  had  depreciated  in  value,  in  which  case  the  damages, 
being  measured  by  the  consideration  money,  might  be  greater  in 
amount  than  the  value  of  the  after-acquired  title.83  As  respects 
the  covenant  of  warranty,  which  is  only  broken  by  an  eviction 
from  the  premises,  there  would  seem  to  be  no  doubt  that  the 
acquisition  of  title  from  the  real  owner  by  the  covenantor  before 
an  eviction  had  occurred  would  necessarily  deprive  the  covenantee 
of  any  right  to  reject  that  title,  because  in  such  a  case  there  would 
not  be,  and  could  never  be,  a  right  to  damages  against  the  cove- 
nantor. The  covenant  of  seisin,  however,  is  broken  as  soon-  as 
made  if  the  covenantor  has  no  title,  and  a  right  of  action  imme- 
diately accmes  thereupon  to  the  covenantee.84  In  that  action, 
unless  the  covenantee  had  been  evicted,  he  could  recover  no  more 
than  nominal  damages;  consequently,  it  would  seem  immaterial 
to  him  whether  he  were  left  to  his  action  or  forced  to  take  the 
after-acquired  title.  There  can  be  no  right  to  recover  the  con- 
sideration money  as  damages  so  long  as  the  covenantee  remains  in 
the  undisturbed  possession  of  the*  estate.  It  has  been  laid  down 
by  a  learned  writer  upon  this  branch  of  the  law  of  e&toppel  that 
the  effect  of  a  conveyance  with  a  covenant  of  warranty  or  of  seMn 
is  not  to  actually  transfer  to  the  covenantee  the  after-acquired 
estate,  so  as  to  deprive  him  of  the  election  to  take  that  estate,  or 
recover  damage*  for  the  breach  of  covenant,  but  merely  to  rebut 
any  claim  of  the  covenantor  to  the  estate,  leaving  to  the  covenant « -e 
the  option  of  proceeding  in  equity  to  compel  a  conveyance  to  him. 
of  the  after-acquired  estate,  or  of  recovering  damages  on  the  cove- 
nant. And,  in  order  to  give  this  position  effect,  the  same  writer 
declares  that,  upon  a  breach  of  the  covenant  of  seisin  resulting 
from  a  total  failure  of  the  title,  the  covenantee  would  have  the 
option  to  retain  the  land,  or  to  offer  to  reconvey  it  and  recover  its 
consideration."  The  objection  to  this  view  of  the  doctrine  of  the 

r.  Drake,  4  Le»  (Tenn.),  293.  it  SMMMS  to  have  been  conwdpd  that  the  grantor 
might  perfect  the  title  in  a  -suit  for  rescission  on  the  ground  of  mistake. 

"Ante,  |  164. 

••Ante,  |  116. 

-rUwle  Covt.  ||  18C,  258.     Mr.  Rawle  rites  Tucker  v.  Clarke,  2  Samlf.  Ch. 


ESTOPPEL    OF    THE    GRANTOR. 


583 


after-acquired  estate  is  that  it  would,  in  every  case  of  breach  of  the 
covenant  of  seisin  in  which  the  covenantee  had  suffered  no  actual 
damage,  give  to  him  the  right  to  rescind  an  executed  contract  of 
sale  and  have  back  his  purchase  money,  though  the  outstanding 
title  had  not  been,  and  might  never  be,  asserted  against  him.  It  is 
true  that,  in  actions  to  recover  the  unpaid  purchase  money,  there 
are  in  a  number  of  cases  dicta  or  intimations  that  the  purchaser 
may  set  up  by  way  of  recoupment  the  breach  of  the  plaintiff's 
covenant  of  seisin,  as  a  defense  to  the  action,  upon  condition  that 
he  reconvey  the  premises  to  the  grantor,86  but  the  writer  is  not 
aware  of  any  case -in  which  this  has  been  permitted  after  the  out- 
standing title  had  been  acquired  by  the  covenantor.  There  would 

(N.  Y.)  96,  in  support  of  his  views*  on  this  point.  In  that  case,  however,  the 
covenantee  had  been  constructively  evicted  from  the  premises,  having  never 
gotten  possession,  and.  it  is  very  clear  that  in  a  case  of  constructive  as  well  as 
an  actual  eviction  the  oovenantee  cannot  be  compelled  to  take  the  after- 
acquired  title.  Mclnnis  vk  Lyman,  62  Wis.  191.  If  it  is  intended  thereby  to 
decide  that  a  covenantee  in  the  undisputed  possession  of  the  premises  may 
practically  rescind  the  contract  by  delivering  up  the  possession  and  recover- 
ing back  the  purchase  money  paid,  regardless  of  the  after-acquired  title,  the 
decision  is  obiter  dictum.  The  case  was  a  suit,  in  equity  to  enjoin  an  action 
by  the  covenantee  for  breach  of  the  covenant  of  seisin,  and  to  compel  the 
defendant  to  accept  inr  lieu  of  damages  a  title  -subsequently  acquired  by  the 
covenantor.  The  court  said:  "The  executed  contract  was  that  the  com- 
plainants were  seised  of  these4  lots,  and  if  they  were  not  they  should  repay 
the  consideration  money.  This  is  sought  to  be  reconsidered  and  turned'  into 
a  contract  by  which,  if  it  should  ever  turn  out  that  they  were  not  seised, 
they  might  either,  repay  the  consideration  or  procure  a  good  title  to  be  con- 
veyed. It  would?  have  been  a  little1  more  plausible  if  there  had  been  a 
semblance  of  mutuality  about  it,  so  that  the  defendant  might  have  coerced 
them  to  procure  a  good  title  on-  discovering  the  defect.  But  there  is  no  pre- 
tense that  the  defendant  had  any  such  equity.  The  complainants'  ground 
amounts  to  this:  If  the  lots  had  been-  worth  two  or  three  times  the  price 
which  the  defendant  paid  for  them,  then  they  could  set  up  the  outstanding 
title,  deprive  the  defendant  of  his  speculation,  and  throw  him  upon  the  cov- 
enants in  his-  deed,  which  would'  restore  to  him  the  consideration  paid.  If, 
on  the  other  hand,  the  lots  should  depreciate  very  much,  the  complainants 
would  procure  the  outstanding  title  for  'him,  and  retain  the  price  which  he 
paid.  There  is  no.  equity  or  fairness  in  this,  and  the  court  cannot  grant  the 
relief  prayed  by  the  bill  without  first  making  such  a  contract  for  the  parties ; 
a  contract  which  they  never  did  make,  and,  I  presume,  never  would  have 
made  if  any  failure  of  title  had  been  supposed  probable  when  the  conveyance 
was  executed." 
"Post,  §  264. 


584  MARKETABLE   TITLE   TO   REAL   ESTATE. 

seem  to  be  no  equity  in  allowing  the  covenantee  to  rescind  his 
executed  contract,  when  he  is  in  the  possession  and  enjoyment  of 
everything  that  he  could  demand  under  that  contract.  Accord- 
ingly, it  has  been  decided  that,  upon  a  breach  of  the  covenant  of 
seisin,  from  which  the  covenantee  has  suffered  no  actual  damage, 
there  can  be  a  recovery  of  no  more  than  nominal  damages  if  the 
covenantor  has  gotten  in  the  outstanding  title.87 

But  the  defendant  cannot  show  title  acquired  by  himself  after 
action  brought.  The  rights  of  the  parties  must  be  determined 
according  to  their  existence  at  the  time  when  the  action  was  com- 
menced.88 If  the  covenantee  recover  a  judgment  for  damages  for 
a  breach  of  the  covenants  of  warranty  or  of  seisin,  he  cannot 
afterwards1  claim  the  benefit  of  a  title  acquired  by  the  covenanter 
after  the  covenant  was  made.89  If  the  vendor  was  guilty  of  fraud 
in  respect  to  the  title,  the  grantee  cannot  be  reqiiired  to  take  an 
after-acquired  title,  and  this  upon  the  same  principle  that  a  vendor 

"3  Sedg.  Dam.  (8th  ed.)  §  978;  Baxter  v.  Bradbury,  20  Me.  260,  37  Am. 
Dec.  4»:  Reese  v.  Smith,  12  Mo.  344;  Cotton  v.  Ward,  3  T.  B.  Mon.  (Ky.  i 
312;  Burke  v.  Beveridge,  15  Minn.  208;  Blackmore  v.  Shelby,  8  Humph. 
(Tenn.)  439;  Burton  v.  Reeds,  20  Ind.  92;  Farmers'  Bank  v.  Glenn.  68  X.  C. 
39;  Hughes  v.  McNider,  90  N.  C.  248.  In  this  case  the>  vendor  was  allowid. 
alter  conveying  the  property,  to  perfect  the  title  by  paying  off  inc.imibranceB. 
Cornell  v.  Jackson,  3  Cush.  (Mans.)  506;  McCarthy  v.  Leggett,  :!  H'll 
(N.  Y.),  134;  King  v.  Gilson,  32  111.  349,  83  Am.  Dec.  269;  Morrison  v. 
Underwood,  20  N.  H.  360;  Fletcher  v.  Wilson,  1  Sm.  &  Mu  Ch,  (Miss.,  376: 
Hartley  v.  Costa,  40  Rons.  552,  20  Pac,  Rep.  208,  semble.  Building  Co. 
v.  Fray,  96  Va.  559-,  32  S.  P..  Rep.  58;  Middlebury  College  v.  Cheney.  1  Vt. 
336.  In  Cross  v.  Martin,  46  Vt.  14,  it  was  said  that  the  after-arquin-il  titlo 
enured  to  the  prantee  in  discharge  of  the  grantor's  covenants,  hut  tho  que>t  inn 
whether  the  grantor  must  take  such  title  in  lieu  of  damages  was  not  lx>fore 
the  court.  Knmvles  v.  Kennedy,  8*2  Pa.  St.  445;  Mclx>nnan  v.  Prentice,  85 
Wi».  427;  Marsh  v.  Sheriff.  (Md.)  14  Ml.  Rep.  664;  Kimlmll  v.  \\Vst.  15 
Wall  (U.  8.)  377.  Note,  that  in  Cochran  v.  Paseault,  54  Md.  1,  it  was  li.  1  i 
that  under  a  covenant  for  further  assurance  the  grantor  had  the  right  to  get 
in  an  outstanding  title  and  tender  a  new  deed  to  tho  grant  re  removing  the 
objection  to  the  title,  and  that  the  grantee  would  he  compelled  to  accept 
such  deed. 

"Morris  v.  Phelpn,  5  Johns.  (N.  Y.)  49,  4  Am.  Dec.  323;  Fitehuph  v. 
t'roghan.  2  J.  J.  Manh.  (Ky.)  430,  19  Am.  Dec.  139,  But  see  Noonan  v. 
IINley.  21  Win.  147,  where  the  point  was  questioned,  and  King  v.  Gilnon,  32 
ia  348,  8*  Am  Dec.  £60. 

"Bank  v.  Meroereau,  7  Barb.  Ch.  (N.  Y.)  528,  572;  Porter  v.  Hill,  9  Mas*. 
94,  6  Am.  Dec,  22;  Stinson  v.  Sunnier,  9  Mass.  143. 


ESTOPPEL,    OF   THE   GEANTOK.  585 

guilty  of  fraud  will  not,  even  where  the  contract  is  executory,  be 
permitted  to  perfect  the  title.90  The  acceptance  of  a  conveyance 
is  not,  as  a  general  rule,  a  merger  of  the  right  to  rescind  the  con- 
tract on  the  ground  of  fraud.91 

§  216.  WHAT  COVENANTS  WILL  PASS  THE  AFTER- ACQUIRED 
TITLE.  A  covenant  of  warranty  will,  in  every  case  in  which  the 
grantor  undertakes  to  convey  an  indefeasible  estate,  and  not 
merely  such  interest  as  he  may  have,  estop  him  from  afterwards 
holding  an  after-acquired  estate  in  the  premises,  as  against  his 
grantee.  The  reason  is  to  avoid  circuity  of  action;92  the  passing 

90  McWhirter  v.  Swaffer,  6  Baxt.  (Tenn.)  42;  Woods  v.  North,  6  Humph. 
(Tenn.)  310,  44  Am.  Dec.  312;  Blackmore  v.  Shelby,  8  Humph.  (Tenn.)  439. 
The  reasons  for  this  rule  are  clearly  stated  as  follows  in  Alvarez  v.  Brannan, 
7  Cal.  509,  68  Am.  Del.  274:  "  Where  there  is  no  fraud,  and  the  vendor  binds 
himself  to  convey  a  certain  title  and  afterwards  discovers  a  defect  which  he 
can  cure,  and  thus  convey  to  the  purchaser  all  the  latter  bargained  for,  it  is 
obviously  just  that  the  vendor  should  be  allowed  to  do  so.  But  when  a 
party  misrepresents  material  facts,  which  he  knows  to  be  untrue,  the  law 
will  not  permit  him  to  derive  any  benefit  from  the  transaction.  The  injured 
party  has  a  right  to  elect  to  rescind  the  contract  and  recover  the  purchase 
money,  or  he  may  proceed  upon  the  covenants  in  his  deed.  In  case  he  elect 
to  rescind,  he  must  place  the  vendor  in  the  same  position  he  occupied  at  th& 
date  of  the  transaction.  If  the  rule  were  otherwise,  it  would  offer  a  reward 
for  injustice.  A  party  knowing  lie  had  no  title  could  sell,  and,  if  the  property 
declined  in  price,  he  could  purchase  the  outstanding  title  for  less  than  he 
received  and  tender  it  to  the  purchaser;  and,  if  the  property  advanced,  all  he 
would  be  required  to  do  would  be  to  refund  the  purchase  money  with  legal 
interest.  All  the  wrongs  would  be  on  his  side,  and  yet  he  would  enjoy  all 
the  advantage  of  the  market.  The  risk  of  loss  would  be  entirely  thrown  upon 
the  innocent,  while  all  the  chance  of  gain  would  be  on  the  side  of  the  guilty 
party.  If  such  be  the  legitimate  result  of  the  rule,  there  must  be  something 
radically  wrong  in  the  rule  itself.  A  rule  of  law  that  rewards  the  guilty 
and  punishes  the  innocent  would  defeat  the  noble  ends  aimed  at  by  the  gov- 
ernment. But,  as  the  rule  of  law  is  different,  the  innocent  party  had  his 
election  either  to  take  the  title,  if  it  can  be  had  of  the  vendor,  or  to  recover 
the  purchase  money  with  the  interest." 

81  Post,  §§  270,  276. 

02  Baxter  v.  Bradbury,  20  Me.  260,  37  Am.  Dec.  49;  Ruggles  v.  Barton,  lit 
Gray  (Mass.),  506;  Dickinson  v.  Talbot,  14  B.  Mon.  (Ky.)  65,  and  cases 
cited,  p.  493,  note  2;  Breen  v.  Morehead,  (Tex.  Civ.  App.)  126  S.  W.  650. 
A  deed  executed  by  an  attorney  in  fact  with  warranty  passes  an  after- 
acquired  title,  though  the  power  of  attorney  did  not  authorize  the  execution 
of  a  warranty  deed.  Lindsay  v.  Freediman,  83  Tex.  263,  18  S.  W.  727; 
Guffey  Petroleum  Co.  v.  Hooks,  47  Tex.  Civ.  App.  560,  106  S.  W.  690. 
74 


586  MARKETABLE   TITLE  TO  REAL   ESTATE. 

of  the  after-acquired  estate  to  the  grantee  satisfies  the  grantor's 
covenant  and  takes  away  the  covenantee's  right  of  action,  unless  he 
has  been  evicted  from  the  premises.93  A  covenant  of  seisin  will 
also  estop  the  grantor  from  setting  up  the  after-acquired  title;94 
except  in  certain  of  the  !New  England  States,  in  which  it  is  held 
that  this  covenant  is  a  mere  admission  that  the  covenantor  is 
seised  de  facto,  and  that  there  is  no  estoppel  because  there  is  no 
right  of  action  if  the  grantor  was  actually,  though  wrongfully 
seised.*5  The  covenants  for  good  right  to  convey  and  for  quiet 
enjoyment  will  transmit  the  after-acquired  title.96  The  covenant 
of  further  assurance  is  also  as  effectual  for  that  purpose  as  the 
covenant  of  warranty,  since  the  covenantor  thereby  engages  to 
convey  the  after-acquired  title,  and  may  be  in  equity  compelled  so 
to  do.97  The  covenants  of  seisin,  against  immmbrances,  and  for 
quiet  enjoyment  implied  from  the  words  "  grant,  bargain  and  sell," 
have  been  held  to  act  as  an  estoppel  ;98  so,  also,  a  covenant  of  war- 
ranty implied  from  those  words.99  But  in  Missouri,  the  cove- 
nants of  seisin,  against  incumbrances,  and  for  further  assurance 
implied  by  statute  from  like  words,  have  been  held  insufficient  to 
estop  the  grantor,  upon  the  ground  that  they  amount  to  nothing 
more  than  a  quit  claim.1  It  seems  that  the  warranty  implied  from 
a  partition  will  not  pass  an  after-acquired  estate.2  In  Kuirlaiul 
covenants  for  title  are  not  sufficient  to  create  an  estoppel  against 

••Rawle  Covta  for  Title   (.r>lh  e<U,  §  250. 

••Pratt  v.  Pratt,  98  111.  1S4;  Irvine  v.  Irvine,  9  Wall.   (U.  S.)   618. 
*    "Allen   v.   Sayward,   5   Greenl.    (Me.)    227;    Doane   v.    Willrutt,    "•    Cruy 
(Ma*s.).  328;  66  Am.  Dec.  369. 

**Fowt  v.  Strachn,  42  N.  H.  40;  Weightmnn  v.  Reynolds,  24  Miss.  075,  fiSO. 

*T2  Sugd.  Vend.  (8th  Am.  ed.)  294,  3  Weshb.  Real  Prop.  667  (4th  e.1.  »7'i    . 
Fitrh  v.  Fitch,  8  Pick.    (Mass.)    482;   Bennett  v.  Waller,  23  111.   183i   (' 
••  v.   .Milwaukee  R,   Co.,  24  Wis.  551,  553,   1  Am.   Rep.   203;    Hoi 
.  in  Minn.  141   (114). 

"I)<>\V..lf  v.  Haydn,  24  111.  525;  King  v.  Gibson,  32  111.  352,  83  Am.   I 
269;  Pratt  v.  Pratt,  96  111.  184,  197;  Porter  v.  Henderson,    (Ala.)    82   S... 
668. 

"Blakealee  v.  Insurance  Co.,  57  Ala.  205. 

'Bogy  v.  Shoab,  13  Mo.  305;  Chauvin  v.  Wagner,  18  Mo.  53;  Gibson  v. 
Chouteau,  39  Mo.  666;  Butcher  v.  Rogers,  60  Mo.  138. 

•Rawle  CovU.    (5Ui  ed.)    pp.  381,  450;   Walker  v.  Hall,   15  Ohio,  355,  86 
Am.  Dec.  482. 


ESTOPPEL    OF    THE    GRANTOR.  587 

the  grantor.  There  must  be  a  precise  averment  in  the  deed  that 
he  is  seised  of  the  estate  purported  to  be  conveyed.3 

A  consent  decree  having  the  effect  of  a  conveyance  but  expressly 
providing  that  the  title  is  not  warranted,  was  held  not  to  estop 
the  grantor  from  setting  up  an  after-acquired  title  to  the  property.4 

If  the  grantor  undertakes  to  convey  an  estate  of  a  particular 
description,  he  will  'be  estopped  from  setting  up  against  his 
grantee  an  after-acquired  title,  though  his  conveyance  contained 
no  covenants  for  title.* 

§217.  ESTOPPEL  NOT  DEPENDENT  ON  AVOIDANCE  OF  CIB- 
CUITY  OF  ACTION.  The  following  instances  in  which  the  doc- 
trine of  estoppel  has  been  applied  when  there  was  no  right  of 
action  on  the  grantor's  covenants  clearly  show  that  the  doctrine  of 
estoppel  and  transfer  of  the  after-acquired  estate  does  not  depend 
altogether  on  avoidance  of  circuity  of  action.  Those  instances 
are  the  estoppel  of  married  women,  of  the  sovereign  power,  of 
bankrupts,  and  of  covenantors  against  whom  no  action  can  be 
maintained  on  the  covenant  by  reason  of  the  Statute  of  Limita- 
tions,6 to  which  may  be  added  those  cases  in  which  the  grantor, 
undertaking  to  convey  an  estate  of  a  particular  quality  or  descrip- 
tion, is  held  to  be  estopped  from  setting  up  an  after-acquired  title, 
even  though  the  conveyance  contained  no. covenants  for  title.  The 
grantor  is  as  much  bound  by  the  recitals  in  his  deed  as  by  formal 
covenants.7  In  some  of  the  States  it  is  provided  that  a  fee-simple 

8 Heath  v.  Creelock,  L.  R.,  10  Ch.  30;  Gen.  Finance  Co.  v.  Liberator,  etc., 
Society,  L.  R,,  10  Ch.  Div.  15. 

4  Barren  v.  Cooperage  Co.,  185  Mo.  App.  625,  171  S.  W.  683. 

"Post,  §  217. 

•Cole  V.  Raymond,  9  Gray  (Mass.),  217,  the  court  saying  that  while  the 
covenant  is  a  personal  contract  to  be  enforced  by  personal  action,  in  which 
the  usual  incidents  to  a  personal  action  will  be  applied,  the,  covenant  is  not 
thereby  affected  in  its  broader  application  and  effect  as  a  covenant  real.  Care 
must  be  taken  to  distinguish  this  decision  from  those  which  hold  that  the 
title  of  a  dissejsor,  which  has  been  perfected  by  the  statute  limiting  the  time 
within  which  lands  may  be  recovered,  will  not  enure  to  the  benefit  of  the  dis- 
seisee-coVenantee.  Ante,  §  208. 

JPost,  §  218.  Denn  v.  Cornell,  3  Johns.  Gas.  (N.  Y.)  174;  Carver  v.  Jack- 
son, 4  Pet.  (U.  S.)  87;  Flanary  v.  Kane,  102  Va.  547,  46  S.  E.  Rep.  681; 
Summerfield  v.  White,  54  W.  Va.  311,  46i  S.  E.  Rep.  154;  Breen  v.  Morehead, 
(Tex.  Civ.  App.)  126  S.  W.  650. 


~)SS  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

conveyance  shall  operate  to  pass  a  subsequently  acquired  estate 
of  tlir  grantor.8 

Upon  the  question  whether  a  married  woman  is  estopped  by  her 
covenants  or  conveyance  from  setting  up  against  her  grantee  an 
after-acquired  title  to  the  estate  there  is  a  conflict  of  authority. 
The  rule  which  seems  to  prevail  in  most  of  the  States  is  that  she 
is  not  estopped  ;9  principally  for  the  reason  that  she  cannot  bind 
herself  bv  her  covenants,  and  that,  consequently,  there  is  no  room 
for  application  of  the  doctrine  of  estoppel  in  order  to  prevent  a 
circnity  of  action.10  There  are  decisions,  however,  that  it  is 
immaterial  whether  the  deed  was  with  or  without  warranty,  there 

•Ante.  §  214.  Chirk  v.  Baker.  H  Cal.  G12,  76  Am.  Dec.  449;  Bernardy 
v.  Mortgage  Co.,  US.  Dak.)  !KS  X.  \Y.  Rep.  107. 

•Bishop  Married  Women,  §  603:  Hempstead  v.  Kaston,  33  Mo.  142;  Hobbs 
V.  King,  2  Met.  (Ky.)  142;  Prior  v.  Loeb,  119  Ala,  450,  24  So,  Rep.  714: 
Gonzales  v.  Hukil,  49  Ala,  260,  20  Am.  Rep.  282;  Wadleigh  v.  Glines,  6 
X.  H.  17,  23  Am.  Dec.  705;  Goodenough  v.  Fellows,  53  VU  102;  French  v. 
MeMillion,  79  W.  Va,  639,  91  S.  K.  538,  L.  R.  A.  1917  D.  22&  In  Lowell 
v.  Daniels,  2  Gray  (Mass. )  161,  Gl  Am.  Rep.  448,  it  was  held  that  a  married 
woman  could  not  be  estopped  by  her  acts  in  pais,  even  though  fraudulent, 
from  setting  up  an  after-acquired  title  to  the  land.  A  party  who  is  incapable 
of  conveying  by  deed  cannot  l>e  barred  by  an  estoppel  in  pais.  But  where  a 
married  woman,  while  she  had  only  an  equitable  estate  in  certain  lands,  exe- 
cuted a  deed  of  trust  upon  it  jointly  with  her  husband,  and,  after  the  deed  of 
trust  had  l*een  foreclosed,  obtained  a  deed  from  her  vendor  conveying  the 
legal  title,  it  was  held  that  she  could  not  set  up  Ruch  title  against  the  pur- 
i  lia-M-r  under  the  deed  of  trust.  She  would  not  lie  estopped  to  set  up  against 
him  iin  after-acquired  title  paramount  to  the  riyht  conveyed  by  tier  in  trust, 
l>ut  the  legal  title  received  by  her  from  her  vendor  was  in  equity  subordinate 
to  the  right  ^o  conveyed,  and  could  not  avail  her  as  an  after-acquired  title. 
Barker  r.  Circle,  60  Mo.  258. 

"Jackson  v.  Yanricrhcyden.  17  Johns.  (X.  Y.)  167,  8  Am.  Deo.  37S.  a  lead- 
ing rai««;  Carpenter  v.  Schermerhorn,  2  Barb.  Ch.  (X.  Y.)  314;  Martin  v. 
Dwelly,  6  Wend.  (X.  Y.)  14.  21  Am.  Deo.  245;  Orout  v.  TowTioend,  2  Hill 
(X.  Y.»,  5o4;  Edwards  v.  Davenport,  4  McCr.  (U.  S.)  34;  Teal  v.  Wood- 
worth.  3  Paige  (X.  Y).  470.  In  Thompson  v.  Merrill,  58  Iowa,  419,  it  was 
held  that  a  statute  providing  that  a  married  woman  should  not  lie  liable  on 
her  co%-enants  in  a  conveyance  of  the  husband's  lands  relieved  her  a*  well  of 
liability  on  her  covenants  by  way  of  estopjx?!  iu*  for  damages.  When,  by 
utatute,  the  hu»l>aiul  in  not  bound  by  covenants  for  title  in  the  wife's  deed 
in  which  he  joined,  he  is  not  estopped  by  such  deed  from  claiming  an  interest 
in  the  land  subsequently  acquired  by  him.  Iritth  v.  Steeves,  134  Iowa  286, 
134  X.  W.  634. 


ESTOPPEL    OF    THE    GEANTOE. 

being  no  estoppel  in  either  case.11  The  mere  fact  that  she  joined 
in  a  conveyance  for  the  purpose  of  relinquishing  her  dower  will 
not  estop  her  from  setting  up  the  after-acquired  title.12  Nor  will 
a  statute  authorizing  her  to  convey  have  that  effect.13 

In  several  of  the  States  it  has  been  held  that  a  married  woman 
cannot  set  up  a  subsequently-acquired  title  against  her  grantee, 
even  though  she  is  not  answerable  in  damages  for  a  breach  of  her 
covenants.14  Such  decisions  necessarily  proceed  upon  the  prin- 
ciple that  a  grantor  shall  not,  in  equity,  be  permitted  to  repudiate . 
his  own  deed.  Upon  the  same  principle  it  has  been  held  that  a 
married  woman  is  as  effectually  estopped  by  a  deed  without  cove- 
nants as  if  the  deed  contained  them.15  She  is  estopped  from 
setting  np  her  own  title  existing  at  the  time  of  the  conveyance; 
otherwise,  the  statutes  permitting  her  to  convey  would  be  rendered 
nugatory.16  In  those  States  in  which  a  married  woman  is  per- 
mitted to  bind  her  separate  estate  by  her  contracts  to  the  same 
extent  and  in  the  same  manner  that  a  married  man  might,  her 
property  is  bound  by  her  covenant  of  warranty,  and  by  such  cove- 
nant she  is  estopped  from  setting  up  an  after-acquired  title  to  the 

11  Den  v.  Demarest,  1  Zab.  (N.  J.)  541.  See,  also,  the  remarks  of  McCRARY, 
J.,  in  Edwards  v.  Davenport,  4  McCr.  (U.  S.)  34;  Jackson  v.  Vanderheyden, 
17  Johns.  (N.  Y.)  167,  8  Am.  Dec.  378;  Raymond  v.  Holden,  2  Gush.  (Mass.) 
264,  270;  Griffin  v.  Sheffield,  38  Miss.  3.59,  393,  77  Am.  Dec.  646;  Strawn  v. 
Strawn,  50  111.  33;  State  v  Kemmerer,  15  S.  Dak.  504,  90  N.  W.  Rep.  150. 

11  O'Neill  v.  Vanderberg,  25  Iowa,  107.  Whether  she  would  be  estopped  if 
the  conveyance  were  of  her  own  land, 

431.  In  Schaffner  v.  Grutzmachen,  6  Iowa,  137,  it  was  suggested  that  to 
avoid  any  question  as  to  estoppel  the  wife  should  not  join  in  the  body  of  the 
deed,  but  should  appear  only  in  the  "  in  testimonium  "  clause. 

"Dominick  v.  Michael,  4  Sandf.   (N.  Y.  S.  <C.)  423. 

"Fowler  v.  Shearer,  7  Mass.  14;  Colcord  v.  Swan,  7  Mass.  291;  Nash  v. 
Spofford,  10  Met.  (Mass.)  192,  43  Am.  Dec.  425;  Doane  v.  Willcutt,  5  Gray 
(Mass.),  328,  332,  66  Am.  Dec.  364;  Knight  v.  Thayer,  125  M&ss.  25;  Massie 
V.  Sebastian,  4  Bibb  (Ky.),  436.  But  see  Hobbs  v.  King,  supra.  Hill  v.  West, 
8  Ohio,  222,  21  Am.  Dec.  442;  Farley  v.  Eller,  29  Ind.  322;  Beal  v.  Beal,  79 
Ind.  280,  obiter.  Wife,,  tenant  by  entireties.,  conveying  with  warranty,  is 
©stopped  to  set  up  title  to  husband's  interest  under  devise  to  her  by  him. 
Demer.s«  v.  Mitchell,  187  Mich.  688,  154  N.  W.  22,  164  N.  W.  97. 

"Graham  v.  Meek,  1  Oreg.  328;  Keady  v.  Martin,  69  Oreg.  299,  137  Pac, 
856,  Ann.  Cas.  1916  A.  796. 

19  King  v.  Rea,  56  Ind.  1;  Wadleigh  v.  Glines,  61  N.  H.  17,  23  Am.  Dec. 
705;  Sunnnerfield  v.  White,  54  W.  Va.  311,  46  S.  E.  Rep.  154. 


590  MARKETABLE   TITLE   TO   REAL   ESTATE. 

property.17  If  the  deed  does  not  show  on  its  face  her  ownership 
of  the  land  conveyed,  the  fact  may  be  shown  by  parol.18 

A  release  of  a  contingent  right  of  dower  by  a  married  woman 
cannot  operate  as  a  conveyance  of  an  existing  or  after-acquired 
estate  in  the  premises  by  estoppel  or  otherwise.  Such  a  deed, 
being  insufficient  to  pass  an  existing  estate,  cannot  have  that 
operation  by  way  of  estoppel.19 

While  covenants  for  title  cannot  be  required  from  the  State  or 
sovereign  power,  and  while,  if  made,  there  can  be  no  action  for  the 
breach  of  them,  yet,  according  to  the  weight  of  authority  in  the 
United  States,  such  covenants,  if  contained  in  a  grant  by  the 
State,  will  estop  her  from  claiming  the  land  afterwards  as  against 
the  grantee  and  his  assigns.  Therefore,  where  the  State  granted 
lands  to  an  alien  with  warranty,  it  was  held  that  upon  the  death 
of  the  grantee  the  State  was  estopped  to  set  up  the  alienage  of  the 
grantee  or  of  his  heirs,  as  ground  of  escheat.20  The  same  effect 
has  been  given  to  recitals  by  the  government  in  public  grants,  and 
other  solemn  instruments.21  In  several  cases,  however,  it  has 
been  held  that  the  doctrine  of  estoppel  has  no  application  to  acts  of 
the  sovereign  power.22  A  bankrupt  is  estopped  to  set  up  an  after- 
acquired  title  as  against  his  covenants,23  or  as  against  his  deed 

17  Cooper  v.  Burns,  133  Fed.  Rep.  39S.  In  Missouri,  in  consequence  of  a 
statute  limiting  the  power  of  a  wife  to  bind  herself  by  covenants  for  till.. 
a  wife  joining  in  her  husband's  deed  of  trust  with  warranty,  is  not  thereby 
estopped  from  setting  up  title  to  the  property  thereafter  acquired  by  her. 
Conrey  v.  Pratt,  248  Mo.  57«,  154  S.  W.  749. 

'•Cooper  v.  Bums,  133  Fed.  Rep.  398. 

"Burston  v.  Jackson,  9  Oreg.  275. 

"Commth.  v.  Andre,  3  Pick  (Mass.)  224.  The  State  in  estopped  by  the 
deed  of  it«  officer  conveying  it*  lands  in  the  performance  of  his  official  duty. 
State  v.  Cent.  Pora.  Coal  Co.,  (W.  Va.)  98  S.  E.  214.  Compare  Com.  v. 
Bierly.  37  Super.  Ot.  Rep.  (Pa.)  496. 

"People  v.  Society,  2  Paine  (U.  S.),  657;  Meaiard  v.  Mawwy,  8  How. 
(U.  8.)  293,  313;  Magee  v.  Hallett,  22  Ala,  718;  Nieto  v.  Carpenter,  7  0*1. 
827;  Ootnmth.  v.  Pejepscut,  10  Mast*.  155. 

"Taylor  v.  Stafford.  4  Hawk*  (X.  C.),  116,  15  Am.  Dee.  512;  Candler  v. 
l...n-fnr<l.  4  Dev.  4  Bat,  (N.  C.)  407;  Wallace  v.  Maxwell,  10  Ired.  (N.  C.) 
112,  51  Am.  Dec,  380.  Then?  were  no  covenants  in  any  of  these  caaea.  In 
St.  IX>U»M  Refrigerator  Co.  v.  Ijingley,  66  Ark.  48,  51  S.  W.  Rep.  08,  it  wa* 
hrld  that  an  art  providing  that  nti  after-acquired  title  should  pass,  under  the 
prior  conveyance,  immediately  to  the  grantee,  did  not  apply  to  conveyance* 
!>y  the  Stnte.  rhe  State  not  l-*-5ng  expressly  mentioned  in  the  act. 

"Chamberlain  v.  Me*d«r.  16  X.  H.  381;  Gregory  v.  Peoples,  80  Va.  355. 
In  Bii*h  v.  Cooper.  2ft  M5*s.  599,  59  Am.  Dec.  270,  18  How.  (U.  S.)  82,  it 


ESTOPPEL    OF    THE    GRANTOR.  591 

without  covenants,24  notwithstanding  his  discharge.  If  the  deed 
contain  covenants  it  is  apprehended  that  the  same  rule  applies, 
whether  there  had  been,  or  had  not  been,  a  breach  of  the  covenants 
at  the  time  of  the  discharge,  since  the  estoppel  does  not  depend 
upon  the  personal  liability  of  the  covenantor  for  damages.25 

§  218.  MERE  QUIT  CLAIM  DOES  NOT  OPERATE  AN  ESTOPPEL. 
As  a  general  rule  a  mere  quit  claim  of  all  the  grantor's  interest  in 
the  premises,  without  covenants  for  title,  will  not  estop  him  from 
setting  up  an  after-acquired  title  as  against  the  grantee.26  And  if 

appeared  that  the  covenants  in  the  bankrupt's  deed  were  not  broken  until 
after  the  discharge  in  bankruptcy,  and  there  being  no  right  of  action  on 
the  covenant  at  the  time  of  the  discharge,  and  no  claim  for  liability  on  the 
covenant  provable  in  bankruptcy,  it  was  held  that  the  bankrupt  was  estopped 
to  set  up  the  after-acquired  title. 

"Stewart  v.  Anderson,  10  Ala.  504;  Dorsey  v.  Gassaway,  2  Harr.  &  J. 
(Md.)  402;  3  Am.  Dec.  557,  where,  however,  the  question  arose,  in  a  contro- 
versy as  to  the  title  of  personal  property. 

25 Gregory  v.  P'eoples,  80  Va.  356,  where  it  was  said  by  LEWIS,  P.:  "It 
was  claimed  that  by  his  discharge  in  bankruptcy  H.  was  released  from  the 
obligation  of  his  covenant  to  warrant  the  title  to  the  land  conveyed  by  him, 
and  that,  consequently,  the  subsequent  conveyance  of  the  legal  title  to  him 
did  not  enure  to  the  benefit  of  his  grantee.  This  contention  would  be  well 
founded  if  the  case  of  thei  appellant  rested  solely  on  the  personal  liability 
of  H.  growing  out  of  his  covenant.  But  it  does  not.  Such  a  covenant  is  not 
only  one  running  with  the  land,  for  the  breach  of  which  the  covenantor  is 
liable  in  an  action  for  damages,  but  as  something  more.  By  its  operation 
a  paramount  title,  subsequently  acquired  by  him,  enures  to  the  benefit  of  the 
covenantee,  and  in  equity  he  is  estopped  from  asserting  that  any  outstanding 
title  existed  inconsistent  with  what  he  undertook  to  convey.  It  has,  there- 
fore,, been  held  that  a  discharge  in  bankruptcy,  while  effectual  to  release  the 
covenantor  from  liability  in  an  action  for  a  breach  of  the  covenant,  does  not 
at  all  affect  the  estoppel.  This  is  on  the  ground  that,  as  the  release  is  by 
force  of  the  statute,  and  not  by  the  act  of  the  covenantee,,  or  those  claiming 
under  him,  no  greater  effect  will  be  given  to  it  than  is  Warranted  by  the  term 
of  the  statute;  and  for  the  further  reason  that  existing  personal  liability 
is  not  necessary  to  work  an  estoppel,  and,  consequently,  there  is  no  necessary 
connection  between  the  personal  liability  of  the  debtor  on  his  covenant  and 
the  estoppel  which  arises  therefrom."  The  case  does  not  show  whether  the 
breach  of  warranty  took  place  before  or  after  the  discharge  in  bankruptcy, 
and  it  may  be  that  the  foregoing  observations  are,  to  some  extent,  obiter  dicta. 

28  Co.  Litt.  §  446,  p.  265,  a.  b.;  Bigelow  Estoppel,  ch.  11,  §  4;  Rawle  Covt. 
247,  2  Washb.  Real  Prop.  665;  McCracken  v.  Wright,  14  Johns.  (N.  Y.)  194; 
Jackson  v.  Hubble,  1  Cow.  (N.  Y.)  613;  Jackson  v.  Winslow,  9  Cow.  (N.  Y.) 
18;  Jackson  v.  Peek,  4  Wend.  (N.  Y.)  302;  Pelletreau  v.  Jackson,  11  Wend. 
(N.  Y.)  119,  distinguishing  Jackson  v.  Bull,  1  Johns.  Cas.  (X.  Y.)  81,  and 


592  MAKKKTABLE   TITLE   TO   REAL   ESTATE. 

the  grantor  warrant  the  title  specially,  the  subsequently-acquired 
estate  will  not  pa<s  to  the  grantee  if  it  came  to  the  grantor  through 

Jackson  v.  Murray.  12  Johns.    (X.  V.)    201,  in  which  it  did  not  appear  that 
the  deeds  were  without  warranty.     Edwards  v.  Yarick,  5  Den.    (N.  Y.)    664, 
702;  Sparrow  v.  Kingtnan.  1  Coinst   (X.  Y.)   242,  247;  Jackson  v.  Littell,  6ii 
X.  Y.  10*%;  Cramer  v.  Beuton.  64  Barb.   (X.  Y.)   524;  Boswell  v.  Buchanan,  3 
Leigh    (Va.)    3C5,  23  Am.  Deo.  280;  Wynn  v.  Harman,  5  Grat.    (Va.)    157; 
Corastock  v.   Smith.   13  Pick.    (Mass.)    116,  23   Am.  Deo.  670;   Hagensick  v. 
Ca-Uor,  53  Xeb.  495.  73  X.  W.  Rep.  932,  Troxell  v.  Stevens,  57  Xeb.  329,  77 
X.  W.  Rep.  "SI.    The  assignment  of  a  mortgage  by  deed  without  covenants  of 
warranty,  does  not  estop  the  grantor  to  set  up  an  after-acquired  title  to  the 
mortgaged  premises.    Merritt  v.  Harris,  102  Mass.  320;  Weed  Machine  Co.  v. 
Emerson,   115  Mass.   554;   McBrido  v.  Greenwood,   11   Ga.   379;    Morrison  v. 
Whitesides,  116  Ga.  459,  42  S.  E.  Rep.  729;  Taylor  v.  Wainman,  116  Ga.  495; 
43  S.  E.  Rep.  5»;  Kent  v.  Wat*on,  22  W.  Va,  569;   Simpson  v.  Greeley,  S 
Ran*.  5<vf>:  Brw*  v.  Luke,  9  Kans.  201,  12:  Am.  Rep.  491;  Scoffing  v.  Grand- 
BtafT,  12  Kr.nn.  470;  Young  v.  Clippinper,  14  Kans.  148,  where  the  grantor  not 
only  quit-claimed  his  present  interest  but  any  that   he  might   have  in   the 
future,  and  undertook  to  defend  the  property  a-.-jiin.-t  all  claims  if  any  should 
ntterward  be  asserted  against  it.     Ott  v.  Sprague,  27  Kans.  624;  Harden  v. 
Collins,  8  Xev.  49;   Demarest  v.  Hooper.  2  Zab.    (X.  J.  L.)    620;  Howe  v. 
Harrington,  18  X.  J.  Eq.  496;  Smith  v.  De  Russy,  29  X.  J.  Eq.  407;  Dart  v. 
Dart,   7    Conn.   250;    Tillotson  v.   Kennedy,  5  Ala,  413,   39  Am.   Dec.   330; 
Morrison  v.  Wilson,  30  Cal.  344;   Cadiz  v.  Majors,  33  Cal.  288;   Quivey  v. 
J'.aker,  37  CaL  465;  Gibson  v.  Chouteau,  39  Mo.  536;  Bogy  v.  Shoab,  13  Mo. 
3tf~>;    Butcher  v.   Rogers,  60   Mo.    138;    Kimmel  v.   Benna,   70  Mo.   52,   68; 
Kinsman  v.  Loom  is,  11  Ohio,  475;  Frink  v.  Darst,  14  111.  304,  58  Am.  Dec. 
55.  overruling  FrUby  v.  Ballance,  2  Gil.  (111.)   141,  both  cases  being  ejectment 
founded  on  the  same  quit-claim  deed.     In  Bennett  v.  Waller,  23  111.  97    ( 1st 
ed.   182),  it  was  held  that  the  rule  stated  in  the  text  did  not  apply  if  the 
quit  claim  contained  a  covenant  for  further  a~«surance.     It  is  now  declared 
by  utatnte  in  that  State  that  a  quit  claim  shall  not  pass  an  after-acquiretl 
title.     R.  S.  1S8.1.  cth.  30,  $  10,  p.  280;  Awry  v.  Aikins,  74  Ind.  283;  Locke 
v.   White.   89  Ind.   492:    Sweet  SIT  v.   Lowell,   33  Me.   452.      In    Coal   Creek 
Mining  Co.  v.  RIMK,  12  Lea   (Tenn.).  5.  it  was  aaid  that  if  the  »prcial  war- 
ranty was  of  the  title  to  the  land,  and  not  merely  of  an  existing  or  limited 
interest  therein,  the  grantor  would   be  estopped.     In   Mississippi    it   is  pro- 
vided by  statute  that  a  deed  of  quit  claim  and  release  shall  oxtop  the  grantor 
ami    hi*    heir*    from    averting   a   subsequently-acquired    title.      Code.    1S89. 
I   1195.     Before  this  statute  the  rule  was  as  stated  in  the  text.     Mitchell  v. 
Woodaon,   37    Mift*.  578.     The  reasons   for  the   rule  were  thus   explained   in 
Western  Min.  &  Mfg.  Co.  v.  Peytona  Coal  Co.,  8  W.  Va.  449:     "  If  thon,  at 
the  time  the  grantor  executes  the  covenant  of  special  warranty,  the  title  in 
the   land    in   in   a  third   person,  not   because  of  any  act   or  default    of  the 
CO?enan<  or,  arul  nuch  person  aflerwurds  asaerts  and  enforces  the  title  a^minst 
the  onvenantee,  Uie  covenant   it*  not   Uierehy   broken,  ami   the  covenantor   is 
not  in  mny   way  responsible.     The  coveuatrtee  pays  nothing   for   the  actual 


ESTOPPEL    OF    THE   GRANTOR.  O9o 

a  defect  of  title  not  embraced  by  his  covenant.27  Thus,  the 
grantor  may  buy  in  a  title  paramount  to  that  under  which  he  held, 
and  the  title  so  acquired  will  not  enure  to  his  grantee,  but  he 
cannot  acquire  the  very  title  which  he  warranted,  and  hold  it 
against  his  grantee.28  The  reason  why  no  estoppel  arises  under  a 
mere  quit  claim,  pure  and  simple,  is  partly  because  there  is  no 
right  of  action  against  the  grantor,  if  the  estate  be  lost  to  one 
having  a  paramount  title,  and  consequently  no  occasion  for  the 
application  of  the  doctrine  of  estoppel  to  prevent  circuity  of 
action.29  There  is  no  injustice  in  preventing  the  passage  of  the 
after-acquired  estate  to  the  grantee,  where  the  grantor  merely 

title,  but  pays  only  for  the  claim  of  the  covenantor  together  with  the 
covenant.  No  duty  rests  on  the  covenantor  to  procure  the  title  for  the  benefit 
of  the  covemantee,,  or  at  all  to  protect  him  against,  or  indemnify  him  for,  the 
assertion  and  enforcement  of  the  title,  and  his  consequent  eviction.  The  title 
in  the  third  person  may,  without  the  agency  of  the  covenantor,  descend  or 
otherwise  come  <to  him.  Or  it  may  be  important  to  the  interest  of  himself 
or  others,  that  he  should  purchase  the  land,  and  accordingly  he  may  pur- 
chase it.  Suoh  a  purchase  cannot  damage  the  coVenantee.  And  there  is  no 
reason  whatever  at  all  sufficient,  why  the  covenantor  should  not  purchase 
the  land  from  the  owner,  and  assert  his  "title  thereto,  or  dispose  of  the  land 
as  any  other  plerson  may  do."  Another  reason  is  that  a  quit  claim  is  regarded 
as  a  mere  release,  and  "  by  a-  reltease  no  right  .passt'th  but  the  right  which  the 
releasor  hath."  Co.  Litt,  p.  265.  Jackson  v.  Winslow,  9  Cow.  (K  Y.)  18. 
Recent  cases:  East  v.  Davis,  (Mo.)  204  S.  W.  402;  Emery  v.  Barfiield,  (Tex. 
Civ.  App.)  138  S.  W.  386;  Breen  v.  Morehead,  (Tex.  Civ,  App.)  126  S.  W. 
650;  Bunch  v.  Johnson,  (Ark.)  211  S.  W.  551;  Wells  v.  Glos,  277  111.  516, 
115  N.  E.  658;  Corbin  v.  Railway  Co.,  285  111.  439,  120  N.  E.  800;  Vary 
v.  Smith,  162  Ala,.  457,  50  So.  187;  Holm  v.  Bidwell,  27  S.  D.  249,  130 
X.  W.  837;  Manson  v.  Peaks,  103  Me.  430,  69  Atl.  690,  125  Am.  St.  Rep. 
311;  Hill  v.  Coburn,  105  Me.  437,  75  Atl.  67.  A  husband's  quitclaim  deed, 
not  specifically  pointing  out  the  estatte  conveyed,  will  not  estop  him  from 
setting  up  a  title  to  the  property  subsequently  a.cquired  by  him  as1  heir  to 
the  wife.  Bucket  v.  Auer,  (Ind.  App.)  120  N".  E.  437. 

27Comstock  v.  Smith,  13  Pick.  (Mass.)  116,  23  Am.  Dec.  670;  Trull  v.  East- 
man, 3  Met.  (Mass.)  121,  37  Am.  Dec.  126;  Loomis  v.  Pingree,  43  Me.  314; 
Bell  v.  Twilight,  6  Fost.  (N.  H.)  401,  45  Am.  Dec.  357;  Tillotson  v.  Kennedy, 
5  Ala.  407,  30  Am-.  Dec.  330. 

28  So  held  in  Giibbs  v.  Thayer,  6  Gush.  (Mass.)  30,  where  the  grantor  exe- 
cuted a  fraudulent  conveyance,  with  special  warranty,  and  afterwards  went 
into  insolvency,  and  purchased  back  his  own  title  at  the  assignee's  sale. 
Such  a  case,  the  court  said,  is  clearly  distinguishable  from  one  in  which  the 
grantor  purchases  in  the  title  of  a  stranger,  as  in  Comstock  v.  Smith,  supra. 

29Doa,ne  v.  Willcutt,  5  Gray   (Mass.),  334,  66  Am.  Dec.  369. 

75 


594  MARKETABLE  TITLE  TO  KEAL  ESTATE. 

releases  whatever  present  claim  or  interest  he  may  have,  for,  pre- 
sumably, the  consideration  of  the  conveyance  was  commensurate 
only  with  that  interest.80  If  it  should  appear  that  the  considera- 
tion paid  by  the  grantee  was  the  full  value  of  the  estate,  that  fact 
might  be  important  in  determining  whether  the  intent  of  the 
grantor  was  to  convey,  not  merely  such  present  interest  as  he  may 
have  in  the  premises,  but  an  estate  of  a  particular  description, 
which  would,  notwithstanding  the  absence  of  covenants  for  title, 
estop  him  from  claiming  the  after-acquired  estate.31  A  deed  with 
special  or  limited  covenants  for  title,  will  be  regarded  in  the  same 
light  as  a  quit  claim,  or  deed  without  covenants,  so  far  as  its  effect, 
by  way  of  estoppel,  is  concerned.32 

If  the  grantor  covenant  against  certain  designated  claims  only, 
and  afterwards  acquire  the  title  from  a  source  independent  of 
those  having  such  claims,  the  estate  so  acquired  will  not  pass  to 
the  grantee.83 

A  release  or  quit  claim  passes  only  such  interest  as  the  grantor 
then  has,  and  does  not  embrace  a  bare  possibility  of  a  future 
interest.84  If  a  contingent  remainderman  convey  the  rstntc  la- 
deed  with  general  warranty,  the  estate  which  vests  upon  the  hap- 
pening of  the  contingency  will,  of  course,  enure  to  the  benefit  <>f 
the  grantee.85  But  a  conveyance  of  a  contingent  interest  witlumt 

m  Western  Min.  &  Mfg.  Oo.  v.  Peytona  Coal  Co.,  8  W.  Va.  440. 

11  Post,  this  flection. 

"Harrison  v.  Boring,  44  Tex.  256.  In  Keith  Lumber  Co.  v.  Oil  Co.,  %j:.7 
Fed.  1,  holding  the  grantor  extopped,  stress  was  laid  upon  the  fact  that  the 
word*  of  the  conveyance  were  "  grant,  bargain,  and  sell,"  instead  of 
"  quitclaim." 

"Lamb  v.  Wakefield,  1  Sawy.  (U.  S.)  251.  Here  the  covenant  was  ajrainst 
all  person*  except  the  government  of  the  United  States  and  thoM>  di-rivin^ 
title  from  that  government.  The  covenantor  afterwards  acquimi  title  from  a 
donee  of  the  government,  and  it  was  held  that  wich  title  did  not  «>nuiv  to  tho 
covenantee.  See,  also,  Lamb  v.  Kann,  1  Sawy.  (I'.  S.)  33ft;  Quivt-y  v.  Hakrr. 
37  Cal.  471;  Fields  v.  Squires,  Dflhdy  (U.  S.),  3*>0;  B4ake  v.  Tucker,  12 
Vt.  44. 

"Varick  v.  Edwmrdu,  1  Hoff.  Ch.  (N.  Y.)  382:  Krn-t  v.  KnM.  ITS  Mi,-h. 
100,  144  N\  W.  513,  ftl  L.  K.  A.  (N.  S.)  317. 

"4  Kent  Com.  201;  Read  v.  Fopg.  no  M<>.    »7'»:    H;..M-  r.  TaU.r.   U    V   IF. 
521;    Fulton  v.  Teager,  183  Ky.  381,  209  S.   \V.   r,:tf> :    Kn-li-h   v.    M  (  j 
157  Ala.  487,  4S  So.  113;  Cherry  v.  Cherry,   I  X.  0.)    1"!   S.   K.  504. 


ESTOPPEL    OF   THE    GRANTOR.  595 

covenants  of  title  will  not  operate  an  estoppel.36  So,  also,  if  an 
heir  convey  his  estate  in  expectancy  by  quit  claim,  he  will  not, 
after  the  death  of  his  ancestor,  be  estopped  to  hold  the  estate 
flescended  to  him  as  against  his  deed.37  If  the  heir  conveys  not 
merely  his  interest  in  expectancy,  but  the  land,  itself  with  cove- 
nants of  general  warranty,  he  will  be  estopped.38 

Even  though-  a  deed  contains  general  covenants  for  title,  if  it 
appear  that  the  grantor  does  not  intend  to  convey  an  indefeasible 
estate,  but  merely  such  present  right,  title  or  interest  as  he  may 
have  in  the  premises,  that  is,  no  greater  estate  than  he  was  really 

18  Jackson  v.  Bradford,  4  Wend.   (N.  Y.)   619. 

37  3  Washb.  Real  Prop.  94,  95;  Jackson  v.  W  hi  slow,  9  Cow.  (N.  Y.)  1,3. 
Hart  v.  Gregg,  32  Ohio  St.  502;  Spacey  v.  Close,  184  Ky.  523,  212,  S.  W.  127; 
Blackwell  v.  Harelson,  99  S.  C.  264?  84:  S'.  E.  233.  Contra,  Bohon  v.  Bohon, 
78  Ky,  408.  If  a  warranty  deed  purport  to  convey  only  such  interest  as 
the  grantor  may  have  in  the  future  as  an  heir  or  grantee,  it  is  void  as  the 
conveyance  of  a  mere  expectancy  or  naked  possibility  of  an  interest,  and 
will  not  estop  the  grantor,  from  setting  up  a  title  subsequently  acquired  a^ 
such  heir  or  grantee.  Dailey  v.  Springfield,  144  Ga.  395,  87  S.  E.  479, 
Ann.  Cas.  1917  D.  943.  In  Steepler  v.  Silberberg,  220  Mo.  2SS;  119  S.  W. 
418,  it  was  held  that  a  conveyance  with  warranty  of  the  grantor's  "right, 
title,  and'  interest  "  in  a  1'ot,  not  being  a  conveyance  of  the  lot  itself,  did  not 
estop  him  from  setting  up  title  to  the  lot  thereafter  acquired  by  him  as  heir 
to  his  mother.  In  McClure  v.  Raben,  (Ind.)  2">  N.  E.  Rep.  179,  it  was 
held  that  a  conveyance  of  air  expectancy  by  an  heir  apparent  without  war- 
ranty, the  ancestor  being  still  alive  but  not  informed  of  the  transaction, 
would  not  estop  the  heir  from  holding  the  interest  after  the  death  of  the 
ancestor,  though  the  purchase  was  in  good,  faith,  and  full  value  'was  paid 
for  the  expectant  estate.  But  if  the  deed  be  with  warranty,  the  heir  will 
be  estoppejd.  Habig  v.  Dodlge,  (Ind.)  25  N".  E.  Rep.  182.  Johnson  v.  Branch, 
9  S.  Dak.  116;  GS  K  W.  Rep.  173. 

^Ackermann  v.  Smiley,  37  Tex.  211.  Holmes  v.  Carr,  163  N.  C.  122;  79 
S.  E.  413;  Baker  v.  Austin,  174  N.  C.  433;  93  S.  E.  949;  Molina  v.  Ramirez, 
15  Ariz.  249;  138>  Pac.  17.  An  heir  conveying  by  quitclaim  is  estopped  to 
set  up  title  to  the  property  on  the  death  of  the  ancestor,  if  an  intention 
to  convey  an  estate  of  &  particular  description  appears.  Pring  v.  Swarm, 
176  Iowa  153,  157  N.  W.  734.  A  prospective  heir  may  law-fully  sell  and  convey 
kis  interest  in  the  esitate.  Blackwell  v.  Harelson,  99  S.  C.  264 ;  84  S.  E.  232, 
disapproving  McCall  v.  Hampton,  99  Ky.  166;  32  S.  W.  406;  33  L.  R.  A.  266; 
56  Am.  St.  Rep.  336.  If  one  attempts  to  convey,  with  warranty,  land  which 
he  does  not  own,  his  subsequent  acquisition  of  title  to  the  property  as  heir 
enures  to  the  benefit  of  his  grantee.  Zarate  v.  Villareal  (Tex.  Civ.  App.) 
155  S.  W.  328.  One  conveying  his  interest  as  executory  devieee,  is  estopped 
to  claim  such  interest  on  the  happening  of  the  event  on  which  the  interest 
was  to  vest.  Smith  v.  Carroll,  286  111.  137;  121  N.  E.  254. 


59G  MARKETABLE   TITLE   TO   REAL   ESTATE. 

possessed  of,  the  after-acquired  title  will  not  pass.39  Of  course, 
the  grantor  cannot  acquire  by  estoppel  a  greater  estate  than  the 
instrument  creating  the  estoppel  purports  to  convey.  A  warranty 
cannot  enlarge  the  estate ;  it  attaches  only  to  the  estate  granted  or 
purported  to  be  granted.  If  it  be  a  life  estate  the  covenantor 
warrants  nothing  more.  He  cannot  be  estopped-  by  the  deed,  or 
the  covenants  contained  in  it,  from  alleging  that  the  fee  did  not 
pass,  when  the  deed  shows  precisely  what  estate  did  pass,  and  that 
it  was  less  than  the  fee.40 

The  foregoing  rules  show  the  necessity  of  great  care  and  pru- 
dence in  taking  conveyances  of  expectant  or  contingent  interests 
in  real  property.  At  the  first  glance  any  one  who  had  not  given 
the  subject  attention,  would,  very  likely,  conclude  that  a  convey- 
ance of  all  the  grantor's  "  right,  title  and  interest,"  with  general 
covenants  for  title,  would  be  an  ample  assurance  of  the  title  to  the 
property  upon  the  happening  of  the  event  vesting  the  title  in  the 
grantor.  Apparently  the  only  safe  course  is  to  take  an  ordinary, 
unqualified  conveyance  of  the  property  in  fee  simple,  with  general 

"Hannick  v.  Patrick,  1*19  U.  S.  156;  Brown  v.  .lack.M.n.  3  \Vh.   (U.  S.)  4:.± 
Sanford  v.  Senford,  135  Mans.  314;  Hoxie  v.  Finney,  16  Gray   (Ma 
Sweet  v.  Brown,  12  Met,   (Mass.)    175;  45  Am.  Dec.  Jt:: :  Wight  v.  Shaw.  ."> 
Cush.    (Mam.)    56;   Allen  v.  Holton,  20  Pick.    (Mass.)     J  ,      IVix.n- 

Unknown,  43  Me.  436;  Shoemaker  v.  Johnson,  35  Ind.  33:  Locke  v.  White,  89 
Ind.  492;  Adanw  v.  Ross,  1  Vr.   (N.  J.  L.)   509;  82  Am.  Dec.  2:;7 :   \\  I, 
Brocaw,  44  Ohio  St.  33»;    Wyim  v.  Barman,   5   Grat.    (Va.)    Hi:!:    Bell   v. 
Twilight,  6  Fost.  (N.  H.)  411;  45  Aw.  Dtc.  367:  Gee  v.  Moore.  1'4  (  al.  471: 
Kimball  v.  Semple,  25  Cal.  441.452;  HOJH>  v.  Stone.  ID  Minn.  141.  14!>:  (Jil.M.n 
v.  Chouteau,  3»  Mb.  536,  567;   100  Am.  Doc.  ."(ill.   Valle  v.  Clemen-.    Is   M 
486;    Bogy  v.  Shoab,   13  Mo.  365;   Holbrook  v.   Debo,  99  III.   :57±     The   rt.le 
•toted  in  the  text  has  been  extended  so  far  as  to  defeat  tin-  pa --in;,'  of  a  vested 
interest  to  the  covenantee  which,  at  the  time  of  the  conve\ain  e.  was  (  out  indent. 
Thus,  in  Blanrhard  v.  Brook*,  12  Pick.  (Mass.)  47.  a  person  l>einjr  tlie  d. 
of  a  contingent,  and  also  of  u  vested  remainder,  executed  a  dri-d  with  general 
warranty  purporting  to  convey  all  lri»  "undivided   j-hnro  or   jMirtion,   riL'lr 
title  and  interest  of,  in  and  to"  the  lands  etc.     Th<-  court  said  the  «ran; 
of  all  the  frrantor.'a  "right,  title  ami  intcn-t."  and  not  of  tin-  land  it -elf,  or 
•Cany  particular  eatate  in  the  land,    "  Tlie  grant  in  le^iil  effect  ojH-rated  only 
to  p«um  UH>  vmted  interest,  and  not  the  contingent  interest,  and  tin-  warranty 
being  co-exten»ive  with  the  grant,  did  not  extend  to  the  contingent  interest, 
and  of  it>urM',  did  not  operate  upon  it  by  way  of  et»topj>e<l."     A  like  devi-ion 
upon  a  Himilar  «tate  of  facU  was  made  in  Hall  v.  (  Ifaffee.  H  N.  II.  iIlTi.  JJ"> 

*2  Co.  LitU  385,  b.    Adam*  v.  Rosq,  1  Vr.  (X.  J.)  605;  82  Am.  Dec.  -J37. 


ESTOPPEL    OF    THE    GKANTOR.  597 

covenants  for  title,  or  to  require  the  vendor,  conveying  without 
covenants,  to  insert  recitals  showing  that  he  intends  to  part  with 
all  prospective  as  well  as  present  interests  in  the  estate. 

But  while  a  mere  quit  claim  of  the  grantor's  present  interest 
will  not  estop  him  from  claiming  the  after-acquired  interest,  it 
does  not  follow  that  there  will  be  no  estoppel  wherever  there  are 
no  covenants  for  title.  If  the  deed  bears  on  its  face  evidence 
that  the  grantor  intended  to  convey,  and  the  grantee  expected  to 
acquire,  an  estate  of  a  particular  description  or  quality,  as  dis- 
tinguished from  a  quit  claim  or  release,  the  after-acquired  title 
will  pass  to  the  grantee,  though  the  deed  contains  no  formal  cove- 
nants for  title.41  It  has  been  held  that  the  fact  that  an  instru- 

41  Ante,  §  217.  Bigelow  Estoppel  (3d  ed.),  333;  Rawle  Oovt.  (5th.  ed.) 
§  247.  Van  Rensselaer  v.  Kearney,  11  How.  (U.  S.)  298;  French  v.  Spencer, 
21  How.  (U.  S.)  228,  240;  Clark  v.  Baker,  14  Cal.  612,  629;  Taggart  v. 
Risley,  4  Oreg.  235;  Habig  v.  Dodge,  (Ind)  25  X.  E.  Rep.  182;  Hagensick 
v  Castor,  53  Neb.  495 ;  73  N.  W.  Rep.  932 ;  Lindsey  v.  Freeman,  83  Tex.  259 ; 
18  S.  W.  Rep.  727;  Scales  v.  Fohn,  (Tex.  Civ.  App.)  59  S.  W.  Rep.  S37; 
G-arrett  v.  McLain,  18  Tex.  Civ.  App.  245;  44  S.  W.  Rep.  47;  Anderson  v. 
Casey  Co.,  (Tex.  Civ.  App.)  120  S.  W.  918;  Van  Rensselaer  v.  Kearney, 
supra,  is  a  leading  case  upon  this  point.  It  distinguishes  between  a  quite 
claim  or  release,  and  a  deed  without  covenant  for  title,  yet  which  shows 
on  its  face  that  the  grantor  intended  to  convey  an  estate  of  a  particular 
description  or  quality  and  not  merely  whatever  interest  or  estate  the  grantor 
might  happen  to  have.  The  court,  by  NELSON,  J.,  after  discussing  certain 
analogous  authorities,  continued :  "  The  principle  deducible  from  these  au- 
thorities seems  to  bte  that  whatever  may  be  the  form  or  nature  of  the  convey- 
ance used  to  pass  real  property,  if  the  grantor  sets  forth  on  the  face  of  the 
instrument,  by  way  of  recital  or  averment,  that  he  is  seized  or  possessed  of  a 
particular  estate  in  the  premises  and  which  estate  the  deed  purports-  to  con- 
voy; or,  what  is  the  same  thing,  if  the  seizure  or  possession  of  a  particular 
estate  is  affirmed  in  the  deed,  either  in  express  terms  or  by  necessary  implica- 
tion, the  grantor  and  all  persons  in  privity  with  him  shall  be  estopped  from 
ever  afterwards  denying  that  he  was  so  seized  and  possessed  at  the  time  he 
made  the  conveyance.  The  estoppel  works  upon  tihe  estate  and  binds*  an 
after-acquired  title  as  between  parties  and  privies.  The  reason  is,  that  the 
estate  thus  affirmed  to  be  in  the  party  at  the  time  of  the  conveyance  must 
necessarily  have  influenced  the  grantee  in  making  the  purchase,  and  hence 
the  grantor  and  those  in  privity  with,  him,  in  good  faith  and  fair  dealing, 
should  be  forever  thereafter  precluded  from  gainsaying  it.  The  doctrine  is 
founded,  when  properly  applied,  upon  the  highest  principles  of  morality  and 
recommends  itself  to  the  common  sense  and  justice  of  every  one.  And 
although  it  debars  the  truth  in  the  particular  case,  and,  therefore,  is  not 


598  MARKETABLE   TITLE   TO   REAL   ESTATE. 

ment  is  a  quit-claim  deed  in  form  will  not  preclude  the  grantee 
from  showing  that  something  more  than  the  grantor's  interest, 
such  as  it  might  be,  was  intended  to  be  conveyed.41 

The  principle  involved  in  these  cases  is,  that  the  grantor  having 
by  his  conveyance  represented  himself  to  be  the  true  owner  of  the 
particular  estate  therein  dscribed,  should  be  estopped  to  allege  the 
contrary,  if  he  should  afterwards  acquire  title  to  the  estate,  upon 
the  same  ground  that  a  party  to  an  instrument  is  estopped  by  the 
recitals  which  it  contains.  If  the  grantor  in  the  quit  claim  allege 
himself  to  be  the  owner  of  the  premises,  both  he  and  those  claim- 
ing under  him  will  be  estopped  to  deny  that  fact  and  to  hold  the 
after-acquired  title.45  In  Maine  it  has  been  held  that  the  covenant 
of  "non-claim"  will  not  operate  an  estoppel,  for  the  reason  that 

unfrequently  characterized  as  odious  and  not  to  be  favored,  still  it  should  be 
remembered  that  it  debars  it  only  in  the  case  where  its  utterance  would  con- 
vict the  party  of  a  previous  falsehood:  would  be  the  denial  of  a  previous  affir- 
mation, upon  the  faith  of  which  persons  had  dealt  and  pledged  their  credit  or 
expended  their  money."  In  Nixon  v.  Caroo,  28  Miss.  414,  426,  ithe  following 
instrument  was  held  sufficient  to  estop  the  heirs  of  the  grantor  from  setting 
up  the  after -acquired  title: 

"PASS  CHRISTIAN,  October  7,  1815. 

"  I,  the  undersigned,  decVare  that  I,  John  Baptiste  Careo.  have  sold  to 
Messrs.  Francis  Bouquie  and  Anthony  Martin  my  plantation  and  two  cabins 
situate  theneon,  together  with  the  enclosure  and  all  the  rails.  (Here  follows 
a  description  of  the  property  and  recital  of  the  consideration.) 

"  (Signed)  JEROME  BAPTISTE  CARGO." 

In  Thomas  v.  Stickle,  32  Iowa,  72,  it  was  heJd  that  a  quit  claim  of  all  th«> 
grantor's  interest  would  include  a  tax  certificate  held  by  the  grantor  at  the 
time  of  the  conveyance,  but  not  disclosed  by  him,  by  means  of  which  he  after- 
wards obtains  a  tax  deed  of  the  land;  and  that  the  title  so  acquired  enured 
to  the  benefit  of  the  grantee. 

The  recital  "being  part  of  the  land  purchased  by  me  of  the  town  of  Fox- 
croft"  is  not  a  covenant  for  title  operating  a  transfer  of  an  after-acquired 
estate  in  the  fond.  Manson  v.  Peaks,  103  Me.  430,  69  All.  690,  125  Am,  St. 
Rep.  311. 

'Harrison  v.  Boring,  44  Tex.  255.  If  the  consideration  of  thte  quit  claim 
did  not  appear  upon  its  face,  parol  evidence  would  seem  admissible  to  show 
that  the  grantor  received  the  full  value  of  the  estate,  end  that,  therefore,  an 
estate  of  a  particular  description  was  intended  to  be  conveyed;  this  upon  the 
ground  that  parol  evidence  is,  aa  a  general  rule,  admissible  to  show  the  con- 
Bide  rat  ion  of  an  in<*trumcnt  as  between  the  parties. 

-  Jackson  v.  Waldron,  13  Wend.  (N.  Y.)   178. 


ESTOPPEL    OF   THE    GRANTOR.  599 

such,  a  covenant  amounts  to  no  more  than  a  mere  quit  claim.44 
A  contrary  view  has  been  taken  in  Massachusetts.45 

An  exception  to  the  rule  that  a  quit-claim  deed  will  not  pass  an 
after-acquired  title  has  been  held  to  exist  where  one  who,  after 
purchasing  lands  from  the  State  and  paying  for  them,  quit 
claimed  his  interest  to  a  third  person  before  a  patent  issued.  In 
such  a  case  the  title  when  perfected  by  the  patent  passes  to  the 
grantee,  on  the  ground  that  the  inception  of  the  title  by  the  pur- 
chase and  its  consummation  by  patent  are  parts  of  the  same  title, 
the  patent  relating  back  to  the  inception;  and  upon  the  further 
ground  that  the  grantor  intended  to  convey  and  the  grantee 
expected  to  receive,  not  merely  such  inchoate  title  as  the  grantor 
then  had,  but  the  perfected  title  accruing  upon  compliance  with 
all  the  requirements  of  the  laws  regulating  public  grants.46  Upon 
the  same  principle  it  would  seem  that  a  quit  claim  executed  by  one 
who  had  paid  the  purchase  money  in  full  for  the  premises,  but  had 
not  received  a  conveyance,  would  operate  to  pass  the  legal  title  to 
his  grantee  when  afterwards  consummated  by  a  conveyance  from 
the  original  grantor.47  Another  exception  to  the  rule  that  a  quit 
claim  does  not  create  an  estoppel,  exists  in  those  cases  in  which 
the  quit  claim  expressly  provides  that  neither  the  grantor,  nor  his 
assigns,  will  hereafter  claim  any  right,  title  or  interest  in  the 
premises  conveyed.  In  such  cases  the  grantor  and  his  assigns 
are  estopped  to  assert  an  after-acquired  title  to  the  estate.48 

It  seems  that  covenants  for  title  executed  by  a  fiduciary  will 
not  estop  the  beneficiary  from  claiming  an  after-acquired  estate. 
Thus,  if  a  ward  acquires  title  after  a  sale  and  conveyance  by  his 

44  Pike  v.  Galvin,  29  Me.  183,  overruling  Fairbanks  v.  Williamson,  7  Gr. 
(Me.)  97;  Ham  v.  Ham,  14  Me.  355;  Partridge  v.  Patten,  33  Me.  483,  54 
Am.  Dec.  633;  Loomia  v.  Pingree,  43  Me.  314;  Harriman  v.  Gray,  49  Me. 
538;  Read  v.  Fogg,  60  Me.  479. 

45 Trull  v.  Eastman,  3  Met.  (Maes.)  121,  37  Am.  Dec.  126,  distinguishing 
between  a  quit  claim  and  a  covenant  of  non-claim  on  the  ground  that  a  quit 
claim,  being  a  mere  conveyance  of  such  right  as  the  grantor  then  has,  does 
not  include  future  interests,  while  a  covenant  of  non-claim,  i.  e.,  that  neither 
the  grantor  nor  his  heirs  will  thereafter  claim  the  premises,  expressly  con- 
templates the  after-acquired  estate.  Miller  v.  Ewing,  6  Gush.  (Mass.)  34. 

48  Welsh  v.  Dutton,  79  111.  465;  Irvine  v.  Irvin'e,  9  Wall.   (U.  S.)  618. 

« Johnson  v.  Johnson,  173  Ky.  701,  191  S.  W.  672. 

aGarlick  v.  Railway  Co.,  67  Ohio  St.  223,  6<5  N.  E.  Rep.  896. 


600  MARKETABLE   TITLE   TO   REAL   ESTATE. 

guardian,  it  has  boon  held  that  such  title  will  not  enure  to  the 
benefit  of  the  purchaser.49  Xor  will  a  title  acquired  by  an  execu- 
tion debtor  after  sale  by  the  plaintiff  enure  to  the  benefit  of  the 
purchaser  at  such  sale."0 

§  219.  ESTOPPEL  OF  GRANTEE.  By  the  common  law  of  Eng- 
land a  grantee  who  had  accepted  and  taken  possession  of  an  estate 
was  estopped  to  deny  the  title  of  his  grantor  or  of  any  one  claim- 
ing under  him.51  Thus,  if  a  widow  brought  an  action  to  recover 
dower  against  the  grantee  of  her  husband,  the  defendant  was 
estopped  to  show  that  the  husband  had  had  no  title  to  the  land. 
This  rule  was  followed  in  Xew  York  in  several  early  decisions,51 
but  they  were  afterwards  overruled,53  and  it  is  settled  now  in  that 
State,  as  well  as  in  other  States, 'that  the  grantee  is  not  estopped 
to  deny  the  title  of  his  grantor,  or  of  any  one  claiming  under  him.54 
If,  however,  the  real  title  be  already  in  the  grantee,  he  will  be 
estopped  from  suing  on  the  covenants  of  his  grantor  by  his  accept- 
ance of  the  grant.55  But  while  the  grantee  is  not  estopped  to  deny 
the  title  of  the  grantor  by  way  of  defense  to  an  action  for  the  pur- 
chase money,  he  is  estopped  in  another  sense,  namely,  that  he 
cannot  acquire  the  adverse  title  and  set  it  up  adversely  to  the 

*  Young  v.  Lorain,  11  111.  624,  52  Am.  Dec.  463. 

"Henderson  v.  Overton,  2  Yerg.  (Tenn.)  393,  24  Am.  Deo.  492;  MVArtlmr 
v.  Oliver,  60  Mich.  605;  Gentry  v.  Callahan,  98  N.  C.  448;  Westheimer  v. 
Reed,  15  Xeb.  662. 

»  Co.  Utt.  352.  a. 

"Bowne  v.  Potter,  17  Wend.  (X.  Y.)  164;  Sherwood  v.  Yendenlmrgh,  2 
Hill  (X.  Y.I,  307;  Ost«rhout  v.  Shoemaker,  3  Hill  (N.  Y.),  513. 

"AVerill  v.  Wilson,  4  Barb.  (X.  Y.)  180;  Sparrow  v.  Kinsman,,  12  Barb. 
(X.  Y.)  208,  1  Oomst.  (X.  Y.)  245;  Finn  v.  Sleight,  8  .Barb.  (X.  Y.)  406. 

"Gaunt  v.  Wainman,  3  Ring.  X.  Cas.  69;  Small  v.  Proctor,  15  Mas*.  405; 
Porter  v.  Sullivan,  7  Gray  (Mass.),  441;  Craig  v.  Lewis,  110  Mnss.  377; 
Fox  v.  Widgery,  4  Or.  (Me.)  218;  Foster  v.  Dwinel,  49  Me.  44;  McLoery  v. 
Mx-Ixwry,  (55  Me.  173;  Cutter  v.  Waddinpham,  33  Mb.  282;  Patterson  v. 
Dwinel.  113  111.  570;  dec  v.  Seanmn,  21  Mich.  287.  The  holder  under  a  tax 
title  that  has  been  perfected  by  the  wtaitute  of  limitations  is  not  eatnj.pi-d 
to  *rt  up  that  title  again*t  one  from  whom  lie  subsequently  took  a  convey- 
ance of  thfj  premises,  wince  such  conveyance  wa«  without  consideration  and  of 
no  effect.  Stewart  v.  William*,  (Tex.  Civ.  App.)  167  S.  W.  761. 

"Fitch  v.  Baldwin,  17  Johns.  (X.  Y.)  166;  Beebe  v.  Swartwout,  3  Gil. 
(III.)  179;  FumesH  v.  Williams.  11  111.  229;  Smiley  v.  Fri«*,  104  111.  416; 
Davenport  v.  Roberts,  171  111.  App.  196. 


ESTOPPEL    OF    THE    GRANTOR.  601 

grantor,  so  as  to  prevent  the  latter  from  recovering  the  balance  of 
the  purchase  money  over  and  above  that  paid  by  the  grantee  to  get 
in  the  title.06  The  rule  that  the  purchaser  is  estopped  to  deny  his 
vendor's  title  has  been  held  not  to  apply  where  the  vendor  under- 
took to  sell  a  part  of  the  public  domain  to  which  he  had  no  title. 
In  such  a  case  the  purchaser,  on  ascertaining  the  vendor's  want  of 
title,  may  himself  preempt  the  land  and  claim  adversely  there- 
under to  his  vendor.57  Neither  does  the  rule  apply  where  the 
vendee  was  induced  to  purchase  by  reason  of  the  fraudulent  repre- 
sentation of  the  vendor.58  Nor  where  the  purchaser  has  been 
actually  or  constructively  evicted.09  The  spirit  and  intent  of  the 
rule  is  that  the  purchaser  shall  not  repudiate  the  contract  while  he 
remains  in  possession  and  retains  its  benefits.60  And  if  the  pur- 
chaser rejects  title  and  possession  from  the  vendor,  and  takes  pos- 
session under  what  he  supposes  is  the  better  title,  he  may  set  up 
such  title  in  defense  of  an  action  of  ejectment  by  the  vendor.61 

§  220.  RESUME  OF  PRINCIPLES.  Mr.  Rawle,  in  summing  up 
the  results  of  the  American  decisions  as  to  the  transfer  of  the 
after-acquired  estate,  observes  that  the  doctrine  rests  upon  a  prin- 
ciple which  is  or  at  times  may  be  salutary,  being  intended  to  carry 
out  the  real  intention  of  the  parties  that  a  certain  particular  estate 
was  to  be  conveyed  and  received,  and  where  that  intention  appears 
the  law  will  not  suffer  the  grantor  to  defeat  it.  Such  an  intention 

56  Ante,  §  168.     Ellis  v.  Crossley,  119  Fed.  779.     As  to  estoppel  of  the  pur- 
chaser where  the  contract  is  still  .executory,  see  ante,  §  202,  and  post,  §  279. 
Brown  v.  Thompson,  81   S.  C.  3'SO,  62  S.  E.  440;   Eames  v.  Armstrong,   146 
X.  C.  1,  59  S.  E.  165,  125  Am.  St.  Rep.  436. 

57  Spier  V.  Laman,  27  Tex.  205 ;  Wheeler  v.  Styles,  28  Tex.  240.     For  quali- 
fications of  this  doctrine  see  ante,   §§    168,  202,  post,   §   279;    Butterfield  v. 
Copper  Co.,  12  Ariz.  55,  95  Pac.  182. 

58  Patterson  v.  Fisher,  8  Blackf.    (Ind.)    237;   Phenix  v.  Bijejich,  30  Xev. 
257,  95  Pac.  351. 

59  Thus,  in  Beall  v.  Davenport,  48  Ga.  165,  15  Am.  Rep.  606,  it  was  held 
that  the  purchaser,  in  ejectment  by  the  vendor,  might  show  that  the  land 
had  been  sold  to  a  third  person  under  execution  against  the  vendor,  and  that 
he  (itke  purchaser)  had  attorned  to  isuch  third  person  as  tenant.     This,  it  is 
apprehended,  would  amount  to  a  constructive  eviction.     Strong  v.  Waddell, 
56  Ala.  471;  Bigelow  Estoppel    (5th  ed.)',  p.  545. 

<">  Finch  v.  Nobfe,  49  Wash.  578,  96  Pac.  3,  126  Am.  St.  Rep.  880. 
«Nerhooth  v.  Altkouse,  S  Watts  (Pa.),  427-,  34  Am.  Dec.  480. 

76 


602  MARKETABLE   TITLE   TO   REAL   ESTATE. 

may  be  deduced  either  from  averments,  recitals,  or  the  like,  or 
from  the  presence  of  covenants  for  title;  and  it  is  immaterial  what 
particular  covenants  there  may  be,  so  that  they  show  the  intention. 
But  the  intention  is  not  necessarily  deduced  from  the  covenants, 
and  may  appear  by  other  parts  of  the  deed.  In  many  cases,  to 
prevent  circuity  of  action,  it  may  be  held  that  the  estate  actually 
passes;  but  this  should  not  be  suffered  to  work  injustice  by  depriv- 
ing the  first  grantee  of  his  legal  right  of  action,  i.  e.,  his  option 
to  sue  for  breach  of  covenant.  And  the  doctrine  may  often  apply 
when  there  is  no  right  of  action,  but  should  never  be  applied 
against  a  purchaser  without  notice."  These  conclusions  appear  to 
be  sound  in  principle  and  to  be  warranted  by  the  decisions,  except 
in  so  far  as  they  would  permit  the  covenantee,  upon  a  breach  of 
the  covenant  of  seisin  unaccompanied  by  disturbance  of  the  pos- 
session, to  practically  rescind  the  executed  contract  and  recover 
the  purchase  money  as  damages,  though  he  had  not  suffered  and 
could  never,  by  reason  of  the  after-acquired  title,  suffer  actual 
damage  from  the  breach  of  the  covenant.  In  such  a  case  an 
attempt  has  been  made  to  show  that  upon  reason  and  authority 
the  covenantee  must  take  the  after-acquired  title,  not  in  lieu  of 
damages,  for  there,  can  be  no  substantial  damages  when  the  cove- 
nantee has  suffered  no  actual  injury,  but  in  satisfaction  of  the 
grantor's  covenant,  and  as  denial  of  the  demand  for  rescission 
when  the  grantee  is  in  the  enjoyment  and  possession  of  everything 
that  the  covenant  was  intended  to  secure  to  him.63 

•Covenants  for  Title  (5th  ed.),  §  264. 
"Ante,  $  215. 


CHAPTER  XXII. 

REFORMATION  OF  THE  CONVEYANCE. 

WHEN  GRANTED  AND  WHEJT  DENIED. 

General  principles.     §  221. 

Mistake  of  fact.     §   222. 

Mistake  of  law.     §  223. 

Mutuality  of  mistake.     Fraud.     §  224. 

Mistakes  resulting  from  negligence.     §  225. 

Nature  and  degree  of  evidence  required.     §   226. 

Laches  in  application  for  relief.     §   227. 

Defective  execution  of  statutory  power.     §   228. 
IN  FAVOR  OF  AND  AGAINST  WHOM  RELIEF  MAY  BE.  HAD. 

In  general.     §   229. 

In  favor  of  grantor.     §   230. 

Purchasers  and  creditors.      §  231. 

Volunteers.     §   232. 

Married  women.     §   233. 

§  221.  WHEN  GRANTED  AND  WHEN  DENIED.  General  prin- 
ciples. The  reformation  or  correction  of  written  contracts  or  con- 
veyances which,  for  some  reason,  fair  to  express  the  true  intention 
of  the  parties,  is  one  of  the  most  familiar  grounds  of  equitable 
jurisdiction.1  We  shall  see,  hereafter,  that  in  certain  cases  of 
mistake  when  the  contract  has  been  executed*  by  the  delivery  and 
acceptance  of  a  conveyance,  the  grantee  is  entitled  to  a  rescission 
or  abrogation  of  the  contract,  and  to  have  back  from  the  grantor 
whatever  may  have  been  paid  or  delivered  to  him  in  furtherance 
of  the  agreement.2  But  in  such  cases  the  remedy  of  the  grantee  in 
equity  is  not  limited  to  a  rescission  of  the  contract.  As  a  general 
rule  he  may  elect  to  affirm  the  contract,  and  insist  that  a  new  con- 
veyance shall  be  executed,  either  by  the  defendant,  or  by  an  officer 
of  the  court  acting  on  behalf  of  the  defendant  by  decree  of  the 
court,  which  shall  operate  as  a  reformation  or  correction  of  the 
original  deed,  and  effectuate  the  true  intent  of  the  original  par- 

*1  Story  Eq.  Jur.  p.  108,  et  seq.;  2  Pomeroy's  Eq.  Jur.  §  845;  2  Beach 
Mod.  Eq.  Jur.  p.  609.  An  instructive  summary  of  the  conditions  under 
which  equity  will  reform  a  written  contract,  will  be  found  in  Humphreys  v. 
Hurtt,  20  Hun  (N,  Y.),  398. 

3  Post,  ch.  35,  Fraud  and  Mistake. 

[603] 


60i  MARKETABLE   TITLE   TO  KEAL   ESTATE. 

ties.3  This,  after  all,  is  no  more  than  specific  performance  of 
the  contract ;  the  court  goes  back  of  the  conveyance  and  ascertain- 
ing the  real  terms  and  subject-matter  of  the  executory  agreement 
between  the  vendor  and  the  vendee,  directs  that  a  new  deed  be 
executed  in  conformity  therewith.4  The  reformation  is  not  to 
make  a  new  agreement  between  the  parties,  but  to  establish  and 
perpetuate  the  old  one.5 

The  deed  may,  of  course,  be  reformed  *by  the  original  parties 
thereto  or  by  their  privies  if  sui  juris  and  in  no  way  incompetent 
to  execute  a  new  conveyance.6  And  it  has  been  laid  down  as  a 
general  rule  that  a  bill  will  not  lie-to  reform  a  deed  unless  a  new 
deed,  correcting  the  error  or  mistake  complained  of,  has  been  pre- 
pared and  tendered  by  the  grantee  to  the  grantor  or  other  person 
who  should  execute  the  same  and  execution  thereof  has  been 
refused,  and  that  the  bill  should  aver  such  tender  and  refusal.7 
But  these  cases  have  been  disapproved  and  the  better  rule  declared 
to  be  that  the  court  shall  retain  the  bill  until  the  correction  is 
made,  taxing  the  costs  against  the  complainant,  if  the  bill  was  filed 
unnecessarily  and  without  previoiis  request  in  pais  to  correct  the 
error.8  Xo  tender  of  an  amended  or  corrected  deed  is  necessary 
where  the  party  from  whom  reformation  is  sought  has  refused  to 
execute  a  new  deed  or  denies  the  plaintiff's  equity,  or  is  incom- 
petent to  execute  the  deed,  nor,  generally,  wherever  a  tender  of  a 
corrected  deed  would  be  vain  and  useless.9  Xeither  does  the  rule 
apply  in  a  suit  to  foreclose  a  mortage  in  which  the  reformation 
of  the  mortgage  was  merely  incidental  to  the  main  object  of  the 
suit,  that  is,  to  compel  the  payment  of  the  purchase  money  l>y 
foreclosure.10  If,  upon  request,  a  party  or  privy  to  the  deed 

'See,  generally,  the  cases  and  authorities  cited  throughout  this   chapter. 

4 Dickinson  v.  Gfcnnoj?  27  Conn.  104;  Adams  v.  Reed,  (Utah)  40  Pac.  Rep, 
720,  diet.  Hoffman  v.  Kiri>y,  196  Cal.  26,  68  Pac.  Rep.  .T_M. 

•\Vel*hbillig  v.  Drenhurt,  65  Ind.  94. 

•  Lavender  v.  Lee,  14  Ahu  688. 

v.  Brown,  4  Ala.  622;  Beck  v.  Simmons,  7  Ala.  71  -.  Lamkin  v.  Reeae, 
7  Ala.  170;  Blade  r.  Stone,  33  Ala.  327;  Heck  v.  Remka,  47  Md.  68;  Jennings 
v.  Krixtndine,  44  Mo 

'  Kuhhin*  v.  Battle  I!..!!-*  Co.,  74  Ala.  499. 

•R«.l>hin»  v.  Battl,-  H,.,,-*  Co.,  74  Ala.  499. 

"AxtW  v.  Ch««^  83  Ind.  546. 


605 

refuses  to  correct  a  mistake  therein  by  the  execution  of  a  new  deed 
or  release  or  quit  claim,  costs  should  be  awarded  against  him.11 
So,  also,  if  he  pertinaciously  and  contrary  to  good  faith  resists  an 
application  to  equity  for  reformation  of  the  deed.12 

The  court,  it  seems,  will  not  reform  a  deed  unless  the  pleadings 
contain  a  prayer  for  such  relief.13  It  has  been  held,  however,  that 
the  general  prayer  for  "  other  and  further  relief  "  is  sufficient  for 
this  purpose.11 

The  reformation  of  a  conveyance,  so  as  to  conform  to  the  terms 
of  a  parol  agreement  for  the  sale  of  the  premises  conveyed,  is  not 
within  the  Statute  of  Frauds,  and  the  reason  is  that  a  contrary 
rule  would,  in  such  a  case,  prevent  any  relief  whatever.15  Nor  is 
it  necessary  to  show  such  part  performance  of  the  parol  contract 
as  would  take  the  case  out  of  the  Statute  of  Frauds.16 

The  court  will  not  reform  a  deed  in  favor  of  one  party,  without 
enforcing  equities  arising  out  of  the  transaction  in  favor  of  the 
other  party.  Therefore,  where  the  grantee  sought  to  reform  a 
deed,  for  error  in  the  description  of  the  premises,  and  it  appeared 
that  the  grantor  had  verbally  reserved  the  right  to  occupy  the 

11  Hutson  v.  Furnas,  31  Iowa,  154. 

12  Dod  v.  Paul,  43  K  J.  Eq.  302. 
"Gamble  v.  Daugherty,  71  Mo.  599. 

14  Coe  v.  N.  J.  Mid.  R.  Co.,  31  X.  J.  Eq.  105. 

15  Adams  Eq.    (5th  Am.  ed.)    345    (171);   Pom.  Eq.  Jur.  §  867;   Noell  v. 
Gill,  84  Ky.  241,   1  S.  W.  Rep.  423;   Conaway  v.  Gore,  24  Kana.  389,  the 
court,  by  BREWER,  J.,  saying:    "  The  'argument  is  that  the  contract  for  the 
sale  of  the  land  was  in  parol ;  that  there  is  no  allegation  or  proof  of  the  de- 
livery  of   possession,    the  making  of  improvements,    or   any   other   matters 
which  take  a  parol  contract  out  of  the   Statute  of  Frauds;   that  the  deed 
which  was  executed  was  a  conveyance  of  other  land,  and,  therefore,  neither 
a   conveyance  nor  a  contract  for  the  land   in   question.      The   argument   is 
elaborated  by  counsel,  and  many  authorities  are  cited.     But  thes'e  authori- 
ties xun  along  the  line  of  the  doctrine,  of  specific  performance,  while  the  case 
at  bar   comes  under   the  head   of  reformation  of   contracts.     The  difference 
between  the  two  is  marked  and  'substantial.     One  aims  to  enforce  a   parol 
contract  as  though  it  were  in  writing,  the  other  seeks  simply  to  conform  the 
written  to  the  real  contract.     One  would  avoid  the  necessity  of  any  writing, 
the  'other  would  simply  correct  the  writing.    The  principles  which  control  the 
one  are  essentially  different  from  those  which  control  the)  other.  *     *     It 
(reformation)    is  not  the  substitution  of  acts  in  pais  for  the  written  con- 
tract, but  it  is  the  making  of  the  writing  the  expression  of  the  real  contract." 

"Morrison  v.  Collier,  79  Ind.  417. 


GOG  MAKKKTABLE   TITLE   TO   REAL   ESTATE. 

premises,  anil  to  be  supported  from  the  rents  and  profits  thereof 
during  the  remainder  of  his  life,  the  court,  as  a  condition  upon 
which  the  deed  should  be  reformed,  required  the  grantee  to  convey 
the  premises  to  a  tnistee  for  the  use  and  benefit  of  the  grantor  for 
life.17  The  fact  that  the  premises  were,  at  the  time  of  the  execu» 
tion  of  the  deed,  in  the  adverse  possession  of  a  stranger,  does  not 
affect  the  grantee's  right  to  reformation.18  If,  by  mistake,  a  deed 
do  not  convey  the  whole  of  the  premises  purchased,  the  remedy 
of  the  purchaser  is  by  suit  for  reformation  of  the  deed,  and  not 
an  action  on  the  grantor's  covenant  of  warranty.19  In  Indiana 
it  has  been  held  that  where,  by  reason  of  a  misdescription  of  lands 
in  a  deed,  a  grantee  does  not  obtain  the  legal  title,  and  before  dis- 
covery of  the  mistake,  the  lands  are  sold  under  execution  against 
the  grantee,  the  purchaser  in  possession  acquires  no  title,  either  at 
law  or  in  equity,  and  cannot  maintain  a  suit  to  reform  the  deed. 
The  reason  given  for  this  decision  was  that  the  grantee  under 
the  defective  deed  had  only  an  equitable  title  or  interest,  and  that 
such  an  interest  being  incapable  of  sale  under  execution,  the  pur- 
chaser acquired  no  title  of  any  kind.20 

Mistakes  which  occur  in  the  registration  of  deeds  are  to  be 
corrected,  not  by  changing  the  record,  but  by  compelling  the 
execution  of  a  quit  claim  or  release  on  the  part  of  him  who  might 
take  advantage  of  the  mistake.21 

§  222.  Mistakes  of  fact.  The  greater  number  of  suits  for  the 
reformation  of  deeds  are  founded  upon  some  mistake  of  fact, 
either  in  respect  to  the  contents  or  to  the  consideration  of  the 
instrument  to  be  reformed.  A  mistake  of  fact  in  an  executed 
contract  occurs:  (1)  Where  the  conveyance  contains  or  omits 
some  matter  or  thing  which  it  was  intended  by  the  parties  should 
not  be  so  contained  therein  or  omitted  therefrom;*2  as  where  the 

11  Coil-man  v.  Colenmn,  IMiil.  Kq.   (X.  C.)  43. 

"  Thompson  v.  Marital],  3fi  Ala.  504,  76  Am.  Deo.  328. 

"Connor  T.  Wells,  91  Ind.  107. 

"Hiatt  v.  Callaway,  7  B.  M»n.   (Ky.)    178. 

"Broadway  v.  Buxtnn,  43  C<>nn.  2S2. 

"I'arham  v.  Parham.  (J  Humph.  (Tenn.)  2^7:  Perkins  v.  Dickinson.  3 
CSrnt.  (Vti.t  33f>.  In  Kirk  v.  Xrtl.  1  M<-Arth.  (I).  C.)  116,  a  mistake  of  the 
ilr.ii: -m:iii  in  tirtiveying  the  whole  rotate  to  the  prairtee  instead  of  one  moiety, 
and  tlio  other  moiety  to  another,  wan  corrected.  So,  wliere  the  draftsman 


REFORMATION    OF    THE    CONVEYANCE.  607 

scrivener  omits  from  the  deed  some  provision  upon  which  the 
parties  have  agreed,23  or  employs  language  insufficient  to  effectuate 
the  intent  of  the  parties,24  and  they  have  executed  the  deed  in 
ignorance  of  the  omission.  (2)  Where  the  contents  of  the  deed 
are  as  they  were  intended  by  the  parties,  but  those  contents  them- 
selves are  founded  in  ignorance  and  mistake  of  fact ;  as  where  the 
parties,  upon  misinformation,  insert  a  wrong  description  of  the 
premises  to  be  conveyed;  or  where  a  part  of  the  premises  was 
already  the  property  of  the  grantee,  both  parties  being  ignorant 
of  his  title  thereto.  In  all  such  cases  the  equity  of  the  grantee  to 
have  the  deed  reformed  so  that  it  may  speak  the  true  intention 
of  the  parties  is  clear  and  undeniable.25  In  this  respect  convey- 

inserted  the  name  of  the  wrong  person  as  grantee.  Bolianan  v.  Bohana-n,  3 
111.  App.  502.  This  class  of  cases  will  include  those  in  which  there  are  mere 
clerical  errors  in  the  description  of  the  premises,  such  as  the  insertion  of  one 
number  instead  of  another,  as  where  a  deed  read  "  seven  degrees  and  thirty- 
nine  minutes  "  instead  of  "  seventy  degrees  and  thirty-nine  minutes."  Clay- 
pcole  v.  Houston,  12  Kans.  324. 

23Athey  v.  McHenry,  6  B.  Mon.  (Ky.)  50;  Bouldin  v.  Wood,  96  Md.  332, 
53  Atl.  Rep.  911;  Hebler  v.  Brown,  41  N.  Y.  Supp.  441. 

24  Adams  Eq.   (5th  Am.  ed.)    343   (169). 

25 Adams  Eq.  (5th  Am.  ed.)  339  (168);  Moore  v.  Munn,  69  111.  591; 
Briegel  v.  Mull'er,  82  111.  257;  Fullen  v.  Savings  Bank,  14  R.  I.  363;  Fields 
v.  Clayton,  117  Ala.  538,  23  So.  Rep.  530;  Winnipisseogee  Lake  Cotton  Mfg. 
Co.  v.  Perley,  46  N".  H.  S3.  Here  a  deed  founded  upon  the  erroneous  com- 
putations of  a  surveyor  was  reformed.  In  First  Nat.  Bank  v.  Grough,  61 
Ind.  147,  it  was  isaid  that  the  neglect  of  the  parties  to  insert  a  proper  de- 
scription of  the  premises  in  a  mortgage  was  a  mistake  of  law  —  a  statement 
deserving  much  consideration.  Whether  the  want  of  a  sufficient  description 
is  a  mistake  of  law  or  a  mistake  of  fact  can  be  determined  only,  it  would 
Seem,  by  the  circumstances  of  each  case  and  the  nature  of  the  mistake.  If 
they  are  mutually  mistaken  in  inserting  wrong  boundaries,  that  is  clearly  a 
mistake  of  fact.  Tooley  v.  Chase,,  (Oreg.)  37  Pac.  Rep.  9'08.  If  they  ad- 
visedly insert  an  insufficient  description  believing  it  to  be  sufficient,  that 
would  be  a  mistake  of  fact.  And  it  is  apprehended  that  if  the  deed  were 
prepared  by  a  third  person  and  the  parties  executed  it  without  adverting  to 
the  erroneous  or  insufficient  description,  so  that  the  deed  does  not  effectuate 
their  purposes,  that  would  lie  a  mistake  of  fact,  and  equity  would  reform  the 
instrument.  Instances  in  which  equity  has  reformed  a  deed  containing  an 
erroneous  description  of  the  premises  will  be  found  in  Dane  v.  Derber,  38 
Wis.  216;  Berry  v.  Wejbb,  77  Ala.  507;  Bush  v.  Bush,  33  Kans.  556,  6  Pac. 
Rep.  794;  Critchfield  v.  Kline,  39  Kans.  721,  18  Pac.  Rep.  898;  Skerrett  v. 
Presbyterian  Society,  41  Ohio  St.  606;  Christman  v.  Colbert,  33  Minn.  509, 
24  N.  W.  Rep.  301 ;  Kellogg  v.  Chapman,  30  Fed.  Rep.  882 ;  Sowler  v.  Day, 


608  MAKKKTABLE  TITLE  TO  REAL  ESTATE. 

ances  stand  upon  different  grounds  from  wills,  for  while  a  latent 
ambiguity  in  a  will  is  open  to  explanation  by  parol  proof,  nothing 
can  be  supplied  to  a  will  or  expunged  therefrom  on  the  ground 
of  mistake;  for,  as  has  been  said,  there  can  be  no  will  without  the 
statutory  forms,  and  the  disappointed  intention  of  the  testator  has 
not  these  forms.2*  But  a  patent  ambiguity  in  a  deed  may  be  cor- 
rected or  removed  by  a  suit  to  reform  the  deed ; 27  and  the  author- 
ities to  the  effect  that  mistakes  or  ambiguities  in  a  will  cannot 
be  corrected  or  explained,  have  no  application  whatever  to  the 
reformation  of  deeds.28 

The  grantor  cannot  maintain  a  bill  to  reform  his  deed  by  insert- 
ing a  reservation  of  certain  rights  in  the  premises,  if  it  appears 
that  such  reservation  was  not  omitted  from  the  deed  through 
fraud,  accident  or  mistake,  but  merely  in  consequence  of  his 
reliance  upon  the  agreement  of  the  purchaser  to  carry  out  the 
original  contract,"  as  where  there  was  an  easement  in  the  granted 
premises  unknown  to  the  parties,  and  the  grantor  had  covenanted 
against  the  incumbrances  created  by  himself  only.30  If  by  mis- 
take covenants  of  warranty  to  which  a  purchaser  is  entitled,  be 
omitted  from  his  deed,  equity  will  cause  them  to  be  insert eil. 
Hut  the  mere  fact  that  the  title  turns  out  to  be  bad  will  not  justify 
a  court  of  equity  in  reforming  a  conveyance  without  warranty, 
so  as  to  include  a  covenant  of  general  warranty,  when  the  pur- 
chaser was  fully  aware  of  the  character  of  the  instrument  he 
accepted,  and  there  was  no  mistake  on  the  part  of  any  one  as  to 
its  contents.  If  the  instrument  perfectly  represents  the  under- 
standing of  the  parties,  it  will  not  be  reformed  merely  becausr 
one  of  the  parties  might  have  exacted  a  different  instrument,  if 
he  had  known  of  facts  making  it  desirable  for  him  t->  do  so.sl 

58   Iowa,   252.    12   X.    \V.    Rep.    2»7;    Roberts  v.    Taliaferrn,    7    Iowa,    110; 
Hileman  v.  NYrivht.  !>  Tnd.  126. 

"Adam-   K.|.   (.'.tli  Am.  e<l.)   345   (172). 

"CaniplH-ll  v.  .ToluiHon,  44  Mt>.  247;  Jennings  v.  Urm-mlinc.    11   >!<• 

•Rid.l.in  r,  76  Ind.  3S1. 

"Andrew  v.  Spurr,  8  Allen  (Minus.),  412.  In  this  (*«o  tin-  original  <-<>ii- 
trarl.  which  wa»  oral,  reserved  to  the  jrrantor  the  rijrht  i<>  nit  and  n>iin>v  • 
certain  timlxr  from  the  prrminrti.  After  the  deed  was  executed  tin- 
repudiated  this  reservation. 

"Lewenberf;  v.  Johnson.  224  Mans.  207.  112  N.  E.  870. 

"Whittemore  v.  Farrinvton,  76  X.  Y.  »">_'. 


REFORMATION    OF    THE    CONVEYANCE.  609 

§  223.  Mistake  of  law.  A  mistake  of  law  occurs  where  the 
contents  of  the  deed  are  such  as  they  were  intended  to  be,  but 
through  misconstruction  or  ignorance  of  the  law  those  contents  do 
not  embody  the  real  intention  of  the  parties,  nor  amount  to  such 
a  conveyance  as  the  grantee  might  have  insisted  upon  in  the  first 
instance,32  for  example,  where  the  purchaser  ignorantly  accepts  a 
deed  executed  by  an  attorney  in  fact  in  his  own  name  instead  of 
that  of  the  principal.33  An  erroneous  opinion  as  to  the  legal  effect 
and  operation  of  a  conveyance,  developed  by  events  subsequent  to 
its  execution,  is  a  mistake  of  law,  and,  it  has  been  held,  furnishes 
no  ground  for  reformation  of  the  deed.34  A  number  of  cases  may 
be  found  in  which  it  is  declared  that  a  mistake  of  law  is  no  ground 
upon  which  a  deed  may  be  reformed  in  equity.35  They  hold  that 
no  equity  arises  when  the  court  is  not  asked  to  make  the  deed 
what  the  parties  intended,  but  to  make  it  that  which  they  did  not 
intend,  but  would  have  intended  if  they  had  been  better  advised. 
This,  however,  is  a  disputed  question,  and  many  cases,  perhaps  a 
preponderance  of  authority,  adopt  the  contrary  view.36  Where  it 

MBurt  v.  Wilson,  28  Cal.  632,  87  Am.  Dec.  142;  Bradford  v.  Bradford,  54 
N.  H.  463. 

M  Personneau  v.  Blakely,  14  111.  15. 

**  Kelly  v.  Turner,  74  Ala.  513>.  This  was  a  case  in  which  a  married  woman 
sought  to  have  a  conveyance  >to  herself  reformed  so  as1  to  show  that  the  con- 
sideration thereof  was  her  separate  statutory  estate,  consisting  of  money 
inherited  from  her  fatlher,  and  tihereby  protect  the  property  conveyed  from 
the  creditors  of  her  husband.  The  application  was  refused. 

"Allen  v.  Anderson,  44  Ind.  395;  Baldwin  v.  Kerlin,  46  Ind.  42:6;  Barnes 
v.  Bartlett,  47  Indl  98;  Nicholson  v.  Caress,  59  Ind.  39;  Easter  v.  Severin, 
78  Ind.  540. 

"Gale  v.  Morris,  29  N.  J.  Eq.  222;  Warner  v.  Siseon,  29  N.  J.  Eq.  141; 
Dupre  v.  Thompson,  4  Barb.  (N.  Y.)  279;  Alexander  v.  Newton,  2  Grat. 
(Va.)  266;  Allen  v.  Elder,  76  Ga.  674;  Wy«he  v.  Greene,  16  Ga.  49;  Brew- 
ton  v.  Smith,  28  Ga.  442;  Brock  v.  O'Dell,  (S.  C.)  21  S.  E.  Rep.  976;  Canedy 
v.  Marcy,  131  Gray  (Mass.),  373;  Crum  v.  Loud,  23  Iowa,  219';  Nowlin  v. 
Pyne,  47  Iowa,  293;  Baker  v.  Massey,  50  Iowa,  399;  Reed  v.  Root,  59 
Iowa,  359;  Stone  v.  Hale,  17  Ala.  557,  52  Am.  Dec.  185.  In  McDonnell  v. 
Milholland,  48  Md.  540,  it  seems  to  have  'been  admitted  that  upon  satisfactory 
evidence  of  mistake  in-  conveying  premises  to  the  grantees  as  joint  tenants 
instead  of  tenants  in  common,  the  error  would  be  relieved  against.  Such  a 
mistake  would  appear  to  be  necessarily  a  mistake  of  law,  as  it  must  be  pre- 
sumed that  the  parties  were  aware  of  the  way  in  which  the  deed  was  drawn, 
but  misconstrued  its  effect.  In  Whitehead  v.  Brown,  18  Ala.  682,  a  deed  was 

77 


610  MARKETABLE   TITLE   TO   REAL    ESTATE. 

is  admitted  that  an  instrument  executed  in  pursuance  of  a  prior 
agreement  by  which  both  parties  meant  to  abide,  is  inconsistent 
with  the  purpose  for  which  it  was  designed,  or  that  by  reason  of 
some  mistake  of  both  parties,  it  fails  to  express  their  intention, 
a  court  of  equity  will  correct  it,  although  the  mistake  be  one  of 
law.87  These  cases,  it  is  believed,  establish  the  better  doctrine. 
Most  of  the  decisions  which  declare  that  a  deed  may  not  be  re- 
formed where  the  mistake  is  one  of  law,  are  founded  upon  author- 
ities which  maintain  that  such  a  mistake  is  no  ground  upon  which 
to  rescind  an  executed  contract.  It  may  be  doubted  whether  these 
authorities  are  in  point.  Rescission  is  the  annulment  or  abro- 
gation of  the  contract,  involving  the  risk  of  inability  to  place 
the  parties  in  statu  quo,  in  itself  a  most  serious  consequence,  while 
reformation  of  the  conveyance  does  not  touch  the  contract  nor 
displace  either  party,  but  simply  makes  effectual  that  which  their 
ignorance  or  mistake  rendered  abortive.  If  a  purchaser  buys  a 
fee  simple,  a  fact  easily  shown  by  the  purchase  price  and  other 
surrounding  circumstances,  and  accepts  a  conveyance  which  the 
parties  deem  sufficient  to  convey  the  fee,  but  which  is  in  fact 
insufficient  for  that  purpose,  an  unconscionable  wrong  would  be 
inflicted  upon  the  purchaser  by  refusing  to  reform  the  deed  and 
by  permitting  the  vendor  to  reap  the  benefits  of  the  mistake.  The 
court  merely  enforces  the  original  agreement  between  the  parties 
when  it  reforms  a  deed,  and  it  would  seem  inequitable  to  deprive 
either  party  of  that  right,  merely  because  their  own  efforts  to  com- 
plete the  contract  had,  from  mistake  or  ignorance  of  law  in  the 
selection  and  preparation  of  the  means,  proven  ineffectual. 

It  is  not  always  easy  to  determine  whether  the  insufficiency  of 
the  conveyance  complained  of  is  due  to  a  mistake  of  fact  or  to  a 
mistake  of  law.  If  the  parties  agree  upon  the  contents  and 
instruct  a  draftsman  to  draw  a  conveyance  in  accordance  with 
such  agreement,  that  is,  give  specific  directions  as  to  the  contents 
of  the  deed,  and  the  draftsman  should  omit  any  matter  upon 

reformed  on  the  ffroimd  of  a  mistake  of  I  ho  partie8  in  tuipposinp  that  it  was 
auftVient  lo  create  in  the  jjranUv  Mich  an  i  .-talc  an  would  he  free  from  lia- 
bility for  the  debt*  of  her  husband. 

"Kornetfay  v.  Everett.  99  K.  C.  30,  5  S.  E.  Rep.  418;  Beiuon  v.  Markol. 
(Minn.)  36  Alb.  L.  J.  44. 


REFORMATION    OF    THE    CONVEYANCE.  611 

which  they  had  agreed  or  insert  any  matter  upon  which  they  had 
not  agreed,  and  they  should  execute  the  deed  in  ignorance  of  such 
omission  on  insertion,  that,  it  is  clear,  would  be  a  mistake  of  fact.38 
On  the  other  hand,  if  the  parties  should  debate  as  to  whether 
certain  matter  should  be  inserted  in  or  omitted  from  the  deed, 
and  should  err  in  their  conclusions,  that  would  plainly  be  a  mis- 
take of  law.39  Lastly,  if  the  parties  should  neither  give  directions 
as  to  the  contents  of  the  deed  nor  discuss  its  provisions  before 
execution  and  acceptance,  and  the  deed  should  be  not  such  as  the 
purchaser  had  a  right  to  require  —  as  if  it  should  lack  a  seal,  or 
proper  words  of  conveyance,  or  should  omit  the  name  of  the 
grantee  —  this,  too,  it  seems,  would  be  treated  as  a  mistake  of 
fact,  that  is,  the  omission  of  these  requisites  would  be  attributed 
to  accident  and  oversight  and  not  to  an  impression  of  the  parties 
that  the  deed  was  sufficient  without  them.40  There  is,  therefore, 

"Adams  Eq.  (5th  Am.  ed.)  342  (169).  A  mistake  in  the  description  of 
land  intended  to  be  conveyed  ia  a  mistake  of  fact  and  not  of  law.  McOasland 
v.  Life  Ins.  Co.,  108  Ind.  130,  9  N.  E.  Rep.  119. 

39 Adams  Eq.  (5th  Am.  ed.)  344  (170).  In  other  words,  if  it  appear  that 
the  instrument  contained  the  precise  language  the  parties  intended  it  should 
contain,  the  mistake,  if  any,  is  a  mistake  of  law.  Easter  v.  Severirr,  78  Ind. 
540. 

49  See  Canedy  v.  Marcy,  13  Gray  (Mass.),  373,  where  it  was  said  that  if  a 
deed  has  been  imperfectly  drawn,  and  the  parties  have  been  misled  by  a  mis- 
placed confidence  in  the  skill  of  the  draftsman,  it  can  hardly  be  said  to  be  a 
mistake  of  law,  but  is  rather  a  mistake  of  fact.  To  this  class  may  be  re- 
ferred those  cases  which  hold  that  a  deed  may  be  reformed  by  inserting  the 
word  "  heirs  "  omitted  from  the  granting  clause.  Springs  v.  Harven,  3  Jones 
Eq.  (N".  C.)  96;  Rutledge  v.  Smitih,  1  Busb.  Eq.  (X.  C.)  283;  Wright  v. 
Delafield,  23>  Barb.  (N.  Y.)  498;  Wanner  v.  Sisson,  29  N.  J.  Eq.  141;  Coe  v. 
X.  J.  Midland  R.  Co.,  31  N.  J.  Eq.  28.  But  stee  Nicholson  v.  Caress,  59  Ind. 
39,  where  it  was  said  that  if  the  parties  execute  a  deed  in  ignorance  that  it 
does  not  contain  the  word  "heirs"  that  is  a  mistake  of  fact;  <but  if  they 
are  not  ignorant  of  the  omission,  and  look  upon  the  deed  as  sufficient  to  carry 
an  estate  of  inheritance,  that  is  a  mistake  of  law.  In  such  a  case,  if  the 
pleadings  do  not  aver  the  ignorance  of  the  parties  of  the  omission  from  the 
deed,  the  complainant  will  not  be  entitled  to  relief.  If  a  deed  be  imperfectly 
executed,  it  will  be  reformed  at  the  suit  of  the  grantee.  Sumner  v.  Rhodes, 
14  Conn.  135;  Smrith  v.  Chapman,  4  Conn.  344.  As  where  it  lacks  a  seal: 
Michel  v.  Tinsley,  69  Mo.  442;  Mastin  v.  Holley,  61  Mo.  196;  Galbraith  v. 
Dilday,  152  111.  207,  38  N.  E.  Rep.  572.  Or  omits  the  name  of  the  grantee: 
Parlin  v.  Stone,  1  McCrary  (C.  C.),  443;  Courtright  v.  Courtright,  63  Iowa, 
356,  19  X.  W.  Rep.  255;  Nowlin  v.  Pyne,  47  Iowa,  293;  Stowell  v.  Haslett, 


612  MARKETABLE   TITLE   TO   REAL    ESTATE. 

it  would  appear,  a  disposition  to  bring  within  the  rule  prohibiting 
the  reformation  of  deeds  in  cases  of  mistake  of  law  only  cases  in 
which  the  error  is  of  an  affirmative  kind,  that  is,  those  in  which 
the  attention  of  the  parties  must  necessarily  have  been  drawn  to 
the  question  of  the  sufficiency  of  the  instrument  or  some  of  its 
provisions,  and  they  have  erred  in  their  conclusions.41 

§  224.  Mutuality  of  mistake.  Fraud.  As  a  general  rule,  there 
can  be  no  reformation  of  a  deed  on  the  ground  of  mistake  imless 
the  complainant  shows  that  the  mistake  was  mutual.42  And  one 
who  seeks  to  rectify  an  instniment  on  the  ground  of  mistake  must 
be  able  to  prove  not  only  that  there  has  been  a  mistake,  but  must 
be  able  to  show  exactly  the  form  to  which  the  deed  ought  to  be 
brought  in  order  that  it  can  be  set  right  according  to  what  was 
really  intended  by  the  parties;48  and  must  be  able  to  establish  in 
the  most  clear  and  satisfactory  manner,  that  the  alleged  intention 
of  the  parties  to  which  he  desires  to  make  the  instniment  con- 
formable continued  concurrently  in  the  minds  of  all  parties  down 

5  Lane.  (N.  Y.)  380.  So,  also,  where  the  signature  of  the  grantor  is  lacking; 
Martin  v.  Nixon,  92  Mo.  26.  Mere  clerical  error*,  such  AS  inconsistent  dates, 
may  always,  be  corrected.  Moore  v.  Wingate,  53  Mo.  398.  If  a  conveyance 
be  defectively  executed  by  one  acting  under  a  power,  aa  where  it 
purports  to  be  the  act  of  the  attorney  and  not  of  the  principal,  it  will  be 
reformed  so  as  to  operate  as  the  deed  of  the  principal.  VVillard  Kq.  Jur.  83; 
Gerdes  v.  Moody,  41  Cal.  335. 

41  An  illustration  of  this  class  of  cases  may  be  found  in  the  case  of  Oswald 
v.  Sproehule,  16  111.  App.  368.  The  difficulty  here  was  that  a  clause,  by 
which  the  purchaser  wa«  exempted  from  liability  from  certain  immature  taxes 
and  as**»sHm«'nts  on  the  granted  premises,  was  not  broad  enough  to  include 
•  certain  other  assessment.  This  was  held  a  mistake  in  the  purchaser's  con- 
struction of  the  deed,  and  one  against  which  the  court  could"  not  relieve. 

"Adam*  Eq.  (5th  Am.  ed.)  344  (171).  Grubb's  Appeal,  90  Pa.  St.  228; 
Rrmillard  v.  Prescott,  8  Oreg.  37;  McCoy  v.  Bayley,  8  Oreg.  196.  T^ing 
delay  of  a  party  in  taking  advantage  of  the  mi«take  is  a  strong  circumstance 
to  establish  the  mutuality  of  the  mistake;  as  where  the  grantee  delayed 
action  for  ten  years  to  recover  for  a  breach  of  the  covenant  agaiirst  incum- 
brance*.  the  defense  being  that  it  was  mutually  understood  between  the 
parti«-M  that  the  rxiftten<«  of  a  railroad  right  of  way  across  the  premises 
should  U-  excluded  from  the  operation  of  the  covenant.  Fierce  v.  Houghton, 
( Iowa )  98  N.  W.  Rep.  306. 

"Kerr  Fraud  &  Mistake  (Am.  ed.),  421;  Ouilmartin  v.  Urquehart.  .82 
Ala,  570,  1  So.  Rep.  807;  Silbar  v.  Ryder,  63  Wis.  106,  23  N.  W.  Rep.  106. 


REFORMATION    OF    THE    CONVEYANCE.  613 

to  the  time  of  its  execution.44  Of  course  a  court  of  equity  has  no 
jurisdiction  to  reform  a  deed  simply  on  the  ground  that  one  of  the 
parties  thereto  has  erred  in  its  construction;  there  being  no  aver- 
ment of  proof  of  fraud,  accident  or  mistake.45  "  The  proposition 
which  lies  at  the  foundation  of  all  suits  to  reform  is,  that  the  court 
cannot  make  such  a  contract  as  it  thinks  the  parties  ought  to  have 
made,  or  would  have  made  if  better  informed,  but  merely  makes 
it  what  the  parties  intended  it  should  be.  Every  reformation  of 
a  contract  by  the  court  necessarily  presupposes  that  there  has  been 
a  meeting  of  the  minds  of  the  parties — an  agreement  actually 
entered  into  —  but  for  some  cause  they  have  failed  fully  or  accu- 
rately to  express  it  in  the  writing."  46  A  mistake  of  one  party  only 
may  be  ground  for  rescinding  or  refusing  specific  performance  of 
the  contract,  but  cannot  justify  an  alteration  of  the  terms  of  the 
agreement,  which,  in  such  a  case,  would  necessarily  result  from 
a  reformation  of  the  conveyance.47  The  mistake  must  not  only 
have  been  mutual,  but  the  pleadings  must  allege  it  to  have  been 
so.  Therefore,  if  neither  the  bill  nor  the  accompanying  affidavits 
contain  such  an  allegation,  the  complainant  will  not  be  entitled 
to  relief.48 

The  rule  that  a  mistake  must  be  mutual  to  entitle  the  grantee 
to  relief  does  not  mean  that  the  mistake  must  be  mutual  in  all 
cases  between  the  grantor  and  the  grantee;  it  suffices  if  the  mis- 
take is  mutual  between  the  grantee  and  other  persons  having  in- 
terests under  the  deed,  the  grantor  being  a  mere  nominal  party.49 

"Language  of  the  court  in  Ranney  v.  Smith,  32  N.  J.  Eq.  28,  citing  Kerr 
F.  &  51.  (Am.  ed.)  421. 

43  Grubb's  Appeal,  90  Pa.  St.  229. 

48  St.  Anthony's  Falls  W.  P.  Co.  v.  Men-imam,  35  Minn.  42,  27  X.  W.  Rep. 
199.  Here  the  deed  conveyed  a  water  power  of  "  fifty  cubic  feet  per  second," 
and  the  plaintiff  contended  that  both  parties  being  mistaken  in  the  belief 
that  the  amount  specified  was  sufficient  to  operate  the  machinery  of  a  cer- 
tain mill,  he  was  entitled  to  have  the  deed  reformed  so  as  to  convey  a  water 
power  adequate  for  that  purpose.  This  contention  was  denied  upon  the 
grounds  stated,  in  the  text. 

47  Adams  Eq.   (5th  Am.  ed.)   344   (171). 

48  Sehoom>ver  v.  Dougherty,  65  Ind.  463;  Ramsey  v.  Smith,  32  N.  J.  Eq.  28. 

49  Murray  v.  Sells,  53  Ga.  257.     In  this  case  Sells  sold  his  homestead  and 
purchased   a  property  from  Rondeau,  who  had   only  an  equitable   title,  the 
legal  title  being  in  Orme.     Sells   agreed  with  Rondeau  that  he    (Rondeau) 


614  MARKETABLE   TITLE   TO   REAL   ESTATE. 

Xor  docs  the  rule  apply  where  the  party  against  whom  relief  is 
sought  fraudulently  permitted  the  other  party  to  act  in  ignorance 
of  the  mistake.50  If  it  appear  that  the  mistake  was  known  to  one 
of  the  parties,  who,  with  knowledge  of  the  ignorance  of  the  other, 
nevertheless  kept  silent  when  he  should  have  spoken,  the  party 
having  knowledge  will  be  estopped  to  defeat  a  reformation  by 
alleging  that  he  knew  that  the  instrument  was  different  from  the 
agreement  and  that  the  mistake  was  not  mutual.51  Xor  in  such 
case  will  the  rights  of  the  complainant  be  affected  by  the  fact  that 
the  fraud  of  the  other  party  might  have  been  discovered  by  the 
exercise  of  ordinary  care.02  Therefore,  where  the  grantor  inserts 
in  his  deed  a  provision  by  which  the  purchaser  is  made  to  assume 
the  payment  of  an  incumbrance  on  the  premises,  and  then  induces 
the  purchaser  to  accept  the  deed  without  disclosing  to  him  the 
existence  of  such  provision,  equity  will  reform  the  deed.53  But 
mere  ignorance  of  the  contents  of  a  deed  from  failure  to  read  it, 
there  being  no  pretense  of  mutual  mistake,  is  no  ground  upon 
which  to  reform  the  deed,  unless  it  appear  that  fraud  was  practiced 
upon  the  complainant  by  one  occupying  a  relation  of  confidence 
toward  him.54 

§  225.  Mistakes  resulting  from  negligence.  It  has  been  held 
that  a  court  of  equity  will  not  reform  a  description  in  a  deed,  if 
the  misdescription  was  the  result,  not  of  mistake  of  the  parties, 


procure  a  conveyance  of  the  property  to  Sells'  wife  and  child,  hut 
i.  through  ignorance,  inadvertence  or  mistake,  procured  a  conveyance 
from  Orme  to  Sells'  wife  alone  omitting  the  child.  Here  there  was  no  mi*- 
take  on  the  part  of  the  grantor,  Orme,  for  the  d<>ed  was  executed  by  him  in 
Htrict  punnianee  of  the  directions*  he  had  received;  but  there  being  a  mistake 
an  Wtween  Rondeau  and  the  otht-r  parties  in  interest,  the  deed  was  reformed 
m>  a*  to  express  their  true  intent. 

"Dane  v.  Derber,  28  Wis.  216;  James  v.  Cutler,  54  W».  172,  10  N'.  W. 
Rpp.  147:  I)e  Jarnatt  v.  Cooper,  59  CaK  703;  Without*  v.  Schaack.  57  How. 
Pr.  (N.  Y.)  310;  Winana  v.  Huyck,  71  Iowa,  459,  32  N.  W.  Rep.  422;  B*r- 
g«-n  v.  Kbey.  8fl  III.  269.  Here,  after  instructions  had  been  given  the  drafts- 
man by  the  parties,  the  grantor  went  to  him  and  gave  him  other  instructions. 

MR»»/ell  v.  Row.ell,  109  Ind.  354,  10  X.  E.  Rep.  114. 

"HitchiiiH  v.  Pettingill,  58  N.  H.  3;  Monroe  v.  Skelton.  3<J  Ind.  302. 

••Savings  In*t.  v.  Burdick,  20  Hun  (X.  Y.),  104.  See,  also,  \\Vlls  v.  Yate*. 
44  N.  Y.  525;  Botiifanl  v.  McLean,  45  Barb.  (N.  Y.)  478;  Rider  v.  Powell, 
28  N.  Y.  310. 

"Michael  v.  Miriuwl,  4  Ired.  Kq.   (N.  C.)  349. 


REFORMATION    OF    THE    CONVEYANCE.  615 

but  of  their  carelessness  and  negligence  in  not  procuring  a  correct 
description  before  executing  the  deed,  the  policy  of  the  law  being 
to  administer  relief  to  the  vigilant,  and  to  put  all  the  parties  upon 
the  exercise  of  a  reasonable  degree  of  diligence.05  But  the  same 
court  has  held  that  this  rule  does  not  apply  in  its  fullest  sense  to 
the  correction  of  mistakes  merely  in  the  description  of  the  prem- 
ises.56 It  is  plain  that  a  rigid  enforcement  of  such  a  rule  would 
result  in  a  denial  of  relief  in  a  great  many  cases  of  mistake,  for 
most  mistakes  in  deeds  are  traceable  to  the  negligence  of  the 
parties,  certainly  those  that  are  visible  upon  the  face  of  the  instru- 
ment, such  as  the  omission  of  the  name  of  the  grantee  and  the  like. 
A  court  might  well  hesitate  to  rescind  an  executed  contract  where 
the  mistake  complained  of  was  the  consequence  of  the  complain- 
ant's negligence,  but  there  seems  to  be  no  very  strong  reason  why 
reformation  of  a  deed  should  be  denied  under  those  circumstances, 
since  that  is  doing  only  what  the  parties  themselves  intended  to 
do.  Therefore,  it  has  been  held  that  a  person  who  accepts  a  deed, 
ignorant  that  it  contains  a  provision  which  obliges  him  to  assume 
the  payment  of  a  mortgage  on  the  premises,  is  not  guilty  of  such 
negligence  as  will  preclude  him  from  relief.57 

§  226.  Nature  and  degree  of  evidence  required.  In  many  in- 
stances mistakes  in  conveyances  will  be  admitted  by  the  parties, 
or  will  appear  upon  the  face  of  the  instrument  itself.  No  diffi- 
culty arises  in  such  cases.38  But  if  the  defendant  deny  the 

55 1  Story  Eq.  Jur.  §  146;  First  Nat.  Bank  v.  Gough,  61  Ind.  147;  Toops 
v.  Snyder,  70  Ind.  534,  Unless  confidence  is  reposed,  a  party,  before  signing 
a  deed,  is  put  upon  inquiry,  and  must  'exercise  proper  and  reasonable  dili- 
gence; Wkhouse  v.  Schaack,  57  How.  Pr.  (N".  Y.)  310.  Where  the  parties 
failed  to  insert  the  number  of  the  square  in  which  the  premises  were  situated, 
not  from  accident  or  mistake,  but  from  mere  want  of  recollection,  it  was 
held  that  the  deed  would  not  be  reformed,  though  the  grantee  might  compel 
specific  performance.  Leonard  v.  Mills,  24  Kans.  231.  But  inasmuch  as  the 
result  would  be  the  same  in  either  case,  it  is  not  easy  to  perceive  why 
the  deed  should  not  have  been  reformed  to  prevent  circuity  of  action. 

54  Elliott  v.  Sackett,  108  U.  S.  132;  Morrison  v.  Collier,  79  Ind.  417. 

"Schaatz  v.  Keener,  87  Ind.  258;  Silbar  v.  Ryder,  G3  Wis.  106,  23  N.  W. 
Rep.  106. 

™  If  the  truth  of  the  bill  be  admitted  by  demurrer,  and  the  allegations 
showing  a  mistake  be  clear  and  positive,  the  complainant  will  be  entitled  to 
a  decree.  Moore  v.  Munn,  69  111.  591. 


616  MARKETABLE   TITLE   TO   REAL   ESTATE. 

existence  of  any  mistake,  and  the  alleged  mistake  does  not  appear 
upon  the  face  of  the  conveyance  itself  or  of  the  documents  con- 
nected therewith,  much  difficulty  may  arise  in  the  proof,  in  view 
of  the  presumption  of  law  that  the  conveyance  is  the  last  expres- 
sion of  the  intention  of  the  parties,  and  of  the  rule  which  forbids 
the  introduction  of  parol  testimony  of  any  contemporaneous  agree- 
ment or  understanding  inconsistent  with  the  conveyance.  Parol 
testimony,  however,  is  always  admissible  to  show  a  mistake;59  the 
difficulty  lies  in  distinguishing  between  mistake  proper  and  such 
matters  as  are  the  result  of  mistake  or  afterthought  on  one  side 
only.  If  the  mistake  appear  on  the  face  of  the  deed  it  may,  of 
course,  be  corrected  without  the  aid  of  extrinsic  evidence.60  Thus, 
in  one  case,  the  court  went  so  far  as  to  insert  a  granting  clause 
in  an  instrument  alleged  to  have  been  intended  as  a  deed,  but 
which,  except  for  the  presence  of  words  of  warranty,  would  have 
been  clearly  no  more  than  an  executory  contract  for  the  sale  of 
lands.'1  But  if  evidence  aliunde  is  relied  upon  to  show  a  mistake 
it  must  be  in  the  highest  degree  clear,  positive  and  satisfactory." 
The  burden  devolves  upon  the  complainant  to  show,  beyond  a 
reasonable  doubt,  the  existence  of  a  mistake.83 

The  mere  fact  that  a  deed  made  in  pursuance  of  an  executory 
contract  for  the  sale  of  lands,  conveys  a  lesser  or  a  greater  estate 

"Bush  v.  Hicks,  2  Thorn  pi  &  C.  (N.  Y.)  356;  Farley  v.  Bryant.  32  Me. 
474;  Wapenhlast  v.  Washburn,  12  Cal.  208;  Heard  v.  Nanrolea,  (Iowa)  175 
N.  \V.  13.  In  a  »uit  to  reform  a  deed,  evidence  of  declarations  of  the  grantor 
contemporaneous  with  the  execution  of  the  deed,  is  admissible  to  show  what 
he  intended  to  convey.  Cake  v.  Peet,  49  Conn.  501. 

••  WapcnblRAt  v.  Washburn,  12  Cal.  208;  Creighton  v.  Pringle,  3  S.  C.  77. 
Here  the  deed  was  reformed  by  sul>.-*t  ii  ut  inp  the  word  "  hereinbefore "  for 
"  hereafter,"  the  context  showing  that  the  former  word  was  intended. 

w  Michael  v.  Tinsley,  89  Mo.  442. 

"Story  Eq.  Jur.  ft  152;  Adams  Eq.  (5th  Am,  ed.)  345  (171).  Sawyer  v. 
Hovcy,  3  Alh-n  (Mass.),  331,  81  Am.  Dec.  «59;  Nicoll  v.  Mason,  49  111.  358; 
Hamlnn  v.  Sullivant,  11  HI.  A  pp.  423:  Wells  v.  Ogden,  30  Win.  637;  Bates 
v.  Bate*,  56  Mich.  405,  23  X.  W.  Rep.  63;  Jarrett  v.  Jonrett,  27  W.  Va.  743; 
Strayn  v.  Stone.  47  Iowa,  333.  The  evidence  of  mistake  rmmt  be  mich  «M  will 
oven-nine  the  Mnmg  preimmption  in  favor  of  written  instruments.  Rpnrillard 
r.  Prencott,  8  Orrg.  37. 

•Miller  v.  Rhuman,  62  Ga.  332;  Willis  v.  Sanders,  51  N.  Y.  Super.  Ct. 
384;  McTuckcr  v.  Taggart,  2f)  Iowa,  478;  St.  Anthony's  Falls  Water  Power 
Co.  v.  Merriman,  35  Minn.  42,  27  N.  W.  Rep.  199. 


REFORMATION    OF    THE    CONVEYANCE.  617 

than  that  provided  for  in  the  contract,  does  not,  of  course,  neces- 
sarily establish  a  case  for  reformation  of  the  deed,  for  in  such  a 
case  the  deed  is  looked  upon  as  the  last  expression  of  the  intent 
of  the  parties,  and  the  presumption  is  that  the  change  was  made 
by  mutual  agreement.  There  must  be  clear  and  positive  evidence 
to  show  that  the  change  was  the  result  of  fraud  and  mistake,  to 
justify  a  reformation  of  the  deed.64 

§  227.  Laches  in  application  for  relief.  The  general  rule  is  that 
a  party  seeking  relief  in  equity  on  the  ground  of  mistake  must 
act  promptly.65  The  reason  is  that  delay  in  such  cases  increases 
the  difficulty  of  placing  the  parties  in  statu  quo,  or  may  affect  the 
rights  of  third  parties.  There  has  been  a  disposition  in  some  cases 
to  extend  this  rule  to  suits  for  the  reformation  of  deeds,66  but  the 
better  opinion  seems  to  be  that  mere  lapse  of  time  is  no  bar  to 
such  a  suit  where  possession  has  all  the  while  been  held  according 
to  the  real  intention  of  the  parties,  and  the  condition  of  the  defend- 
ant has  not  been  made  worse  by  the  delay,  and  the  rights  of  no 
third  party  have  intervened.67  Nor  in  any  event  will  laches  be  im- 
puted to  the  complainant  until  after  discovery  of  the  mistake.68 
Nor  where  it  appears  that  the  complainant  has  made  repeated 
efforts  to  have  the  mistake  corrected  without  a  law  suit.69  A  mis- 
take occurred  in  a  deed  in  1816.  The  grantee  took  possession 
and  remained  in  possession  until  1848,  when  one  who  had  suc- 
ceeded to  the  rights  of  the  grantor  in  some  way  obtained  pos- 
session. The  grantee  filed  a  bill  in  1851  to  correct  the  mistake, 

64  Whitney  v.  Smith,  33  Minn.  124,  22  N.  W.  Rep.  181;  Dunham  v.  New 
Britain,  55  Conn.  378. 

65  Willard  Eq.  Jur.  69 ;  Story  Eq.  Jur.  §  152(X 

66  Sable  v.  Maloney,  48  Wis.  331,  4  N.  W.  Rep.  479.    Here  fifteen  years  had 
elapsed  after  discovery  of  the  mistake  before  an  application  for  reformation 
was  made.     Farley  v.  Bryant,  32  Me.  474,  where  it  was  said  that  lapse  of 
time  tended  to  show  either  that  there  was  no  mistake,  or  that  the  mistake, 
if  any,  had  been  waived. 

67Canedy  v.  Marcy,  13  Gray  (Mlass.),  373;  Mills  v.  Lockwood,  42  111.  Ill; 
First  Nat.  Bank  v.  Wentworth,  28  Kans.  183;  Kirk  v.  Zell,  1  McArthur 
(D.  C.),  116.  In  Farley  v.  Bryant,  32i  Me.  474,,  it  was  said  that  lapse  of 
time  would  be  immaterial  to  the  right  of  reformation,  if  the  premises  were 
unimproved  lands. 

48  Stone  v.  Hale,  17  Ala.  557,  52  Am.  Dec.  185. 

80  Thompson  v.  Marshall,  30  Ala.  504,  76  Am.  Dec.  328. 

78 


618  MARKETABLE   TITLE   TO   REAL   ESTATE. 

and  it  was  held  that  he  was  not  precluded  from  relief  by  the 
delav.70  The  case  tends  to  establish  the  principle  that  laches  is 
not  imputable  to  the  grantee  until  after  some  adverse  claim  to 
the  premises  has  been  made. 

§  228.  Defective  execution  of  statutory  power.  It  seems  that 
equity  will  not,  as  a  general  rule,  aid  a  defective  execution  of  a 
power,  that  is,  will  not  supply  any  matter  for  the  want  of  which 
the  legislature  declares  a  deed  void,  since  the  effect  would  be  to 
make  nugatory  the  legislative  enactment.71  But  this  rule  has  no 
application  where  an  officer,  selling  and  conveying  under  a  statute, 
complies  with  all  the  provisions  of  the  statute,  and  merely  misde- 
scribes  the  land  in  the  conveyance  which  he  executes  in  pursuance 
of  the  sale.  In  such  a  case  equity  has  jurisdiction  to  decree  the 
execution  of  a  new  deed  correcting  the  mistake.7* 

§  2 2 9.  IN  FAVOR  OF  AND  AGAINST  WHOM  BELIEF  MAY  BE 

HAD.  IN  GENERAL.  The  right  to  reformation  of  a  deed  on  the 
ground  of  mistake  is  not  confined  to  the  immediate  parties  to  the 
instrument,  but  extends  to  all  persons  who  stand  in  the  place  of 
such  parties  and  who  are  injured  by  the  mistake.73  To  maintain 
the  action  the  complainant  must  be  either  a  party  or  a  privy  to  the 
deed.7*  Suits  for  the  reformation  of  conveyances  on  the  ground  of 
mistake  have  been  frequently  brought  by  remote  assignees  of  the 

"Farmers  &  Mech.  Bank  v.  Detroit,  12  Mich.  445. 

"1  Story  Eq.  Jur.  §  117.  See  infra,  this  chapter,  5  233,  "Married 
Women." 

"Houx  v.  Bates  County,  81  Mo,  391. 

"See,  generally,  cases  cited  below.  Pomeroy  Eq.  Juris.  5§  845,  870,  1376; 
Mills  v.  Lockwood,  42  III  112. 

"Story  Eq.  Jur.  8  165.  Willis  v.  Sanders,  51  X.  Y.  Sup.  CU  380,  where 
it  was  also  held  that  the  mere  fact  that  a  person  is  a  grantee  of  one  to  whom 
a  d«-ed  was  made  does  not  necessarily  f»o  connect  him  with  the  contract  as  to 
entitle  him  to  maintain  a  suit  to  reform  the  deed. 

The  complainant  should  not  neglect  to  aver  and  prove  that  he  holds  under 
the  doe«l  which  he  seeks  to  rvform.  In  Ballentine  v.  Clark,  38  Mich.  305,  the 
court  said:  "The  testimony  entirely  fails  to  trace  title  into  complainant; 
and,  an  thin  in  e*wntinl  to  hie  recovery,  he  must  fail  on  this  record.  Xone 
of  the  drill,  in  iin-  chain  of  title  appear.  It  seems  to  have  been  taken  for 
granted  that  the  only  proof  required  was  the  identification  of  the  premises 
dwcrilxvl  in  the  Mil.  Hut  unle»H  complainant  shows  that  he  holds  under  the 
deed  sought  to  be  reformed  lie  makes  no  showing  of  equities." 


REFORMATION    OF    THE    CONVEYANCE.  619 

original  grantee.73  But  where  a  judicial  sale  intervened  between 
the  original  grantee  and  the  remote  grantee  it  was  held  that  the 
deed  in  which  there  was  an  erroneous  description  could  not  be 
reformed,  since  the  effect  would1  be  to  give  to  the  plaintiff  land 
which  the  court  had  not  directed  to  be  sold.76  Nor  can  a  grantee, 
immediate  or  remote,  compel  a  reformation  of  the  deed  so  long  as 
he  is  in  default  in  the  payment  of  any  part  of  the  purchase 
money.77  He  who  asks  equity  must  do  equity.  Reformation  of 
the  conveyance  is  a  species  of  specific  performance,  and  specific 
performance  by  the  grantor  could  not  be  compelled  so  long  as  any 
part  of  the  purchase  money  remained  unpaid. 

§  230.  Reformation  in  favor  of  grantor.    Reformation  of  deeds 

75  Instances  may  be  found  in  Taber  v.  Shattuck,  55  Mich.  370,  21  N.  W. 
Rep.  371;  Bradshaw  v.  Atkins.,  110  111.  323;  Crippen  v.  Baumes,  15  Hun 
(N.  Y.),  136;  Gerdes  v.  Moody,  41  Oal.  335;  Blackburn  v.  Randolph,  33 
Ark.  119.  In  May  v.  Adams,  58  Vt.  74,  3  Atl.  Rep.  187,  the  suit  was  be- 
tween grantees  of  the  original  grantor  and1  grantee  respectively. 

"Rogers  v.  Abbott,  37  Ind.  138.  No  authorities  were  cited  to  this  propo- 
sition, and  the  grounds  upon  which  it  rests  are  by  no  means  clear.  Land  had 
been  erroneously  described  by  Conley  in  his  deed  to  Abbott  as  the  S.  E. 
instead  of  the  X.  E.  quarter.  This  error  was  perpetrated  through  several 
mesne  conveyances,  including  a  sheriff's  deed,  until  the  land  came  to  the 
plaintiff,  possession  of  the  N.  E.  quarter  passing  with  all  the  deeds.  Mean- 
while Abbott,  discovering  the  error,  procured  Conley  to  execute  a  deed  of  the 
N.  E.  quarter  to  his  (Abbott's)  son,  who  thereupon  claimed  the  land  in 
plaintiff's  possession.  Plaintiff  then  brought  an  action  to  reform  the  orig- 
inal deed  from  Conley,  and  the  court  held  as  stated  in  the  text,  intimating, 
however,  that  the  plaintiff  was  not  without  a  remedy  of  some  kind.  See, 
also,  Rice  V.  Poynton,  15  Kans.  263,  and  Keepfer  v.  Force,  86  Ind.  81,  Where 
a  mistake  in  the  description  of  mortgaged1  lands  is  carried  into  the  decree  of 
foreclosure  it  may  be  corrected  by  reforming  'and  reforeclosing  the  mortgage. 
McCasland  v.  Life  Ins.  Co.,  108  Ind.  130.  In  Thomas  v.  Dockins,  75  Ga. 
347,  a  mistake  in  a  sheriff's  deed  was  corrected  in  favor  of  a  subsequent 
grantee  as  against  the  execution  defendant.  And  in  Parker  v.  Starr,  21  Neb. 
680;  33'  N.  W.  R!ep.  424,  a  deed  under  a  judicial  sale  was  reformed  at  the 
instance  of  a  remote  grantee.  In  Mlartin  v.  Dollar,  32  Ala,  422,  it  was  hold 
that  a  sheriff's  deed  will  not  be  reformed  for  error  in  the  description  of  the 
premises,  if  the  sale  itself  is  a  nullity,  as  having  been  made  under  a  void 
judgment.  A  mistake^  in  the  description  of  mortgaged  premises  may  be  re- 
formed, even  after  foreclosure  of  the  mortgage.  Congers  v.  Mericles,  75  Ind. 
443.  Davenport  v.  Scovil,  ft  Ohio  St.  459.  A  court  of  equity  has  power  to 
correct  errors  in  a  sheriff 's  deed.  Bradshaw  v.  Atkins,  110  111.  323;  Gil- 
breath  v.  Dilday,  152  111.  207;  38  N.  E,  Rep.  572. 

T7McFadden  v.  Rogers,  70  Mo.  421;   Conaway  v.  Gore,  21  Kans.  725. 


G20  MARKETABLE   TITLE   TO   REAL   ESTATE. 

on  the  ground  of  mistake  will  of  course  be  decreed  in  favor  of 
the  grantor  as  well  as  the  grantee  if  the  mistake  be  clearly  estab- 
lished, as  where  the  deed  includes  lands  not  purchased  by  the 
grantee  and  not  intended  to  be  conveyed.78  But  if  the  existence  of 
the  mistake  is  denied,  the  position  of  the  grantor  becomes  different 
in  view  of  the  maxim  verba  chartarum  fortius  accipiuntur  contra 
proferentem;  the  words  of  a  deed  shall  be  taken  most  stroiurly 
against  him  who  employs  them.  It  has  also  been  held  that  the 
grantor  will  not  be  entitled  to  relief  if  a  wrong  description  inserted 
in  his  deed  was  the  result  of  his  own  gross  negligence.79  Nor  will 
the  court  reform  a  deed,  absolute  on  its  face,  by  inserting  a  con- 
dition therein,  at  the  suit  of  the  grantor.80  Xor  can  a  mistake  as 
to  the  quantity  of  land  conveyed  be  corrected,  on  his  behalf,  if, 
after  discovery  of  the  mistake,  he  receives  payment  of  the  purchase 
money  for  the  whole  land  and  surrenders  possession  to  the 
grantee.81  Nor  where  he  insists  upon  the  payment  of  the  purchase 
money  while  seeking  relief  on  the  ground  of  the  mistake.82  And 
it  has  been  intimated  that  a  grantor  conveying  all  of  his  interest 
is  not  entitled  to  relief  on  the  ground  that  such  interest  was 
greater  than  both  parties  supposed  it  to  be.88 

Against  whom  reformation  will  be  decreed.  A  deed  will  be  re- 
formed in  a  case  of  mistake,  not  only  as  against  the  original 
irnuitee,  but  as  against  all  who  claim  under,  or  are  in  privity  with 
him,  such  ns  heirs,  devisees,  voluntary  grantees,  judgment  crrd- 

"Bush  v.  Hicks.  60  X.  Y.  208;  Furfis  v.  Treat,  41  Wig.  404;  Damm  v. 
Moors.  4«  Mich.  510;  Wiloox  v.  Lucae,  121  Mass.  21;  Hutson  v.  Pumas,  31 
Iowa,  l.r>4:  Burr  v.  HnMiinson.  fil  Mr.  .r»14;  Pugh  v.  Brittain,  2  Dev.  Eq. 
(N.  C.)  34;  Cooke  V.  Hushnnd,  11  M<1.  402.  When-  lands  not  sold  under  a 
decree  are  l<y  mistake  reported  as  sold,  and  a-  deed  of  the  same  is  made  by 
tlio  court.  Mid»  diM-d  will  IK>  reformwl,  as  against  the  grantor  or  his  heirs. 
Stile-  v.  Winder.  35  Ohio  St.  555. 

wlx'\\i-  v.  Ixwifl,  5  Orejj.  160. 

-dark  v.  Drake.  ,7  Pinn.-y  (Win.),  22»;  Law  v.  Hydo,  .Ifl  Wi-.  M*j  MilN 
r.  Seminary.  47  Wi*.  35-1 ;  i  N.  \V.  R<«p.  550,  Hero  tin-  grantor  d«-sir«l  t-. 
reform  tin  deo<l  l>y  inserting  in  it  a  provision  that  the  d«vd  should  lie  void 
if  the  prejnine*  ohould  ceaae  to  he  u*ed  as  a  site  for  a  seminary. 

"Witll-i-ker  v.  Watt«>r-<.  «!»  T.-\    470;   (i  S.  W.  Hep.  788. 

"  U  rr  v.   St-.i^u-n.   IS  Minn.  -><\. 

"Fly  v.  nrookH.  (54  Ind.  ."•().  Hut  ^M-  Baker  v.  Ma**ey.  30  Iowa.  31>!».  win n- 
it  WR-  hpH  tluit  if  the  dii-d  cinl»ra«i'  an  inti-ivst  of  which  llu1  grantor  was 
ignorant,  he  will  be  entith-d'  t..  reformation. 


REFORMATION    OF    THE    CONVEYANCE.  621 

itors  and  purchasers  with  notice  of  the  mistake.84  The  person  or 
persons  whose  duty  it  is  to  reform  the  deed,  or  who  will  be  affected 
by  the  reformation,  should  always  be  made  parties  defendant  to 
the  suit.85  But  it  does  not  follow  that  it  is  necessary  in  all  cases 
to  make  the  grantor  a  defendant;  it  frequently  happens  that  he 
stands  indifferent,  for  example,  where  the  deed  is  made  in  pur- 
suance of  directions  given  by  one  who  had  the  equitable  title  only, 
and  who  sold  his  bargain  to  the  person  who  became  the  grantee. 
In  such  a  case  it  is  not  necessary  to  make  the  grantor  a  party,  for 
his  interests  are  in  no  way  affected,  and  the  court  may  appoint 
a  commissioner  to  execute  the  reformed  deed.86  A  remote  grantee 
who  holds  under  a  deed  without  warranty,  need  not  make  his 
immediate  grantor  a  party  to  his  suit  for  reformation.87  If,  how- 
ever, the  plaintiff  holds  under  mesne  conveyances  with  warranty, 
it  has  been  held  that  he  must  make  the  grantees  parties.88  Where 
the  grantor  conveys  to  two  purchasers,  but  makes  a  mistake  as  to 
the  interest  which  each  is  to  receive,  he  is  not  a  necessary  party 
to  a  bill  to  correct  the  mistake.89 

§  231.  Purchasers  and  creditors.  If  the  vendor  should  sell  lot 
A,  but  by  mistake  should  convey  to  the  purchaser  lot  B,  and  after- 
wards a  third  person  should  purchase  lot  A  from  the  vendor  and 
take  a  conveyance  thereof  without  notice  of  the  mistake,  the  deed 
to  the  first  purchaser  could  not  be  reformed  as  against  the  second 
purchaser.90  Neither  could  such  a  deed  be  reformed  as  against 

84  Adams  Eq.  (5th  Am.  ed.)   340  (169),  n.    Grayson  v.  Weddle,  80  Mo.  39. 

65  Goodman  v.  Randall,  44  Conn.  321;  Bullock  v.  Whipp,  15  R.  I.  195;  2 
Atl.  Rep.  309,  obiter. 

88  Baker  v.  Pyatt,  108  Ind.  61;  9  N".  E.  Rep.  112,  a  case  in  which  a  father, 
desiring  to  convey  his  whole  estate  to  his  sons,  executed  a  deed  to  each,  but 
one  of  the  deeds  failed  to  take  effect  because  of  a  mistake  in  the  description. 
The  grantee  in  this  deed  was  held  entitled  to  maintain  an  action  to  reform 
his  deed  against  one  of  the  other  sons  who  was  in  possession  of  the  land  in- 
tended to  be  conveyed  to  the  plaintiff.  See,  also,  Roszell  v.  Roszell,  105  Ind. 
77;  4  N.  E.  Rep.  423. 

87  Farmers  &  Mech.  Bank  v.  Detroit,  12  Mich.  445. 

6S  Davis  v.  Rogers,  33  Me.  222. 
-""Briegel  v.  MIoehler,  82  111.  257. 

90  Story  Eq.  Jur.  §  165;  Adams  Eq.  (5th  Am.  ed.)  340  (169),  n.  Berry  v. 
Lowell.  72  Ala.  14;  Ruppert  v.  Haske,  5  Mackey  (D.  C.),  262;  Boardman  v. 
Taylor,  66  Ga.  638;  Kilpatrick  v.  Stozier,  67  Ga.  247;  First  Nat.  Bank  v. 
Gough,  61  Ind.  147;  Hewitt  v.  Powers,  84  Ind.  295;  Farley  v.  Bryant,  32 


622  MARKETABLE  TITLE  TO  REAL  ESTATE. 

judgment  creditors  of  the  vendor,  in  those  States  in  which 
judgment  creditors  are  protected  by  the  registry  acts.91  But  as 
against  a  subsequent  purchaser,  and,  it  is  apprehended,  a  creditor 
of  the  grantor,  with  notice  of  the  mistake,  such  deed  might  always 
be  reformed  in  equity,  upon  the  same  principle  that  one  pur- 
chasing with  notice  of  an  equitable  estate  in  the  premises  in  favor 
of  a  third  person,  may,  himself,  be  compelled  to  perform  the  con- 
tract of  the  vendor.92  Possession  of  the  premisjes  in  respect  to 

Me.  474;  Whitman  v.  Westman,  30  Me.  285;  Dart  v.  Barbbur.  32  Mich.  267; 
Wilson  v.  King,  27  N.  J.  Eq.  374;  Willis  v.  Saunders,  51  X.  Y.  Super.  Ct. 
38-1;  Lally  v.  Holland,  1  Swan  (Tenn.),  396.  Whether  an  execution  creditor 
who  buys  in  4he  realty  of  the  debtor  at  a  sale  under  the  execution  is  a  pur- 
chaser for  value  without  notice,  and  entitled  to  object  to  the  reformation  of  a 
prior  deed,  which,  when  reformed,  will  embrace  the  purchased  premises, 
qiKrref  Bailey  v.  Timberlnke,  74  lAlo.  221.  In  Carver  v.  Lasahrtte,  57  Wi«. 
232;  15  X.  W.  Rep.  162,  a  deed  was  reformed  as  against  a  purchaser  under 
an  execution  against  the  grantor. 

"Freeman  on  Judgments,  §§  357,  3-90.  Goodbar  v.  Dunn,  61  Miss.  618; 
Martin  v.  Nixon,  92  Ma  26;  4  S.  W.  Rep.  503;  Galway  v.  M<elehow.  7  Xeb. 
2*<6;  Bush  v.  Bush,  33  Kans.  556;  Ruppert  v.  Haske,  5  Maekey  (D.  C.). 
262.  In  Alnbama  a  judgment  is  not  a  lien  on  equitable  estate^  and.  therefore, 
a  judgment  creditor  of  one  who  mortgages  an  equity  of  redemption  cannot 
object  to  the  reformation  of  the  mortgage.  Bailey  v.  Timberlake.  74  Ala. 
221.  In  Mississippi,  under  a  statute  declaring  unreeortled  deeds  void  as  to 
subsequent  creditors  as  well  as  purchasers-,  it  lias  been  held  that  a  court  of 
equity  will  not  correct  a  mistake  in  the  dewription  of  land  in  a  deed  against 
one  who,  having  actual  notice  of  the  mistake  at  the  time  of  the  purchase, 
taught  the  land  «t  execution  sale  under  a  judgment  rendered  in  favor  of  a 
party  who  had  no  notice  of  the  mistake  at  the  time  he  recovered  judgment. 
Xugent  v.  Priebatseh,  61  Miss.  402,  disapproving  Simmons  v.  Xorth,  3  Sm. 
&  M.  (Miss.)  67.  A  judgment  creditor  whose  debt  wan  made  before  the  exe- 
cution of  a  deed  to  certain  premises,  but  whose  judgment  was  obtained  after- 
ward*,  does  not  «tand  on  the  footing  of  a  bona  fide  purchaser  without  notice, 
within  the  rule  protecting  such  purchasers'  against  the  reformation  of  deeds 
on  the  ground  of  mistake.  Lowe  v.  Allen,  68  da.  22,5. 

"  Adams  v.  Steven*.  49  Me.  362;  Freeman's  Bank  v.  Voae.  23  Me.  98;  Gale 
v.  Morris.  211  X.  J.  Eq.  22C;  Preston  v.  Williams,  81  111.  176;  De  .larnatt  v. 
Cooper,  59  Cal.  703;  Holabird  v.  Burr,  17  Conn.  556;  Haynes  v.  Seachri«tt, 
13  Iowa.  445.  In  Fenwick  v.  Buff,  1  McArth.  (D.  C.)  107.  an  erroneous 
description  in  a  deed  wan  corrected,  not  only  a«  against  the  grantor,  but  as 
again**  one  holding  tinder  n  prior  deed,  who  had  railed  to  record  such  deed 
before  the  record  of  the  deed  containing  the  erroneous  description.  Such  a 
perron  doe«  not  stand*  on  the  footing  of  a  subsequent  purchaser  without 
notice.  It  ha*  been  held  that  a  court  of  equity  will  not,  tm  against  a 
mbtcqtierrt  purchaser,  set  up  or  reform  a  deed  absolutely  void  for  want  of  (hie 


REFORMATION    OF    THE    CONVEYANCE.  623 

which  the  mistake  was  made  will,  of  course,  be  deemed  sufficient 
to  put  the  purchaser  on  inquiry  and  charge  him  with  constructive 
notice  of  the  mistake.  As  respects  notice  from  the  deed  itself,  it 
is  equally  clear  that  the  record  of  a  deed  which,  by  mistake;  con- 
tains a  totally  erroneous  description-  of  the  land  intended  to  be 
conveyed,  would  not  be  sufficient  to  put  a.  subsequent  purchaser 
on  inquiry.93  But  if  the  mistake  be  of  a  kind  that  appears  upon 
the  face  of  the  deed,  or  if  the  deed  contain  enough  to  show  what 
land  was  really  intended  to  be  conveyed,  no  reason  is  perceived 
why  such  a  deed  would  not  be  sufficient  to  charge  the  purchaser 
with  notice  by  putting  him  on  inquiry.94  A  bill  to-  reform,  a  deed 
as  against  a  subsequent  purchaser  will  be  demurraWe  unless  it 
avers  that  the  defendant  purchased  with  notice  of  the  mistake.95 
And  such  a  purchaser  will  not  be  protected  unless  he  paid  a  valu- 
able consideration ;  a  deed  will  be  reformed  against  one  who  took 
a  mortgage  on  the  premises  to  secure  a  past  due  and  antecedent 
debt,  without  regard  to  the  question  of  notice.96 

execution  toy  the  grantor,  even  though,  such  purchaser  took  with  notice  of  the 
void  conveyance.  Goodman  v.  Randall,  44  Conn.  321.  This  was  a  case  of 
much  hardship.  Hubhard  executed-  to  Allen  a  paper  purporting  to  be  a  mort- 
gage, but  invalid  as  such  because  not  signed  by  the  grantor.  At  the  same 
time  Hubbard)  conveyed  the  premises  to  Parker,  subject  to  this  mortgage,  the 
deed  reciting  that  Parker  assumed  the  payment  of  the  mortgage.  The  court 
refused  to  reform  the  mortgage  and  enforce  it  against  Parker  and  his  as- 
signees, who  had)  also  accepted  conveyances  containing  an  assumption  of  the 
mortgage.  It  was  intimated,  however,  that  Allen  had  his  remedy  on  the 
promise  to  pay  contained  in  the  several  conveyances*  It  is  'believed  that  this 
decision  is  open  to  much  doubt.  In  Bullock  v.  Whipp,  15  R.  I.  195;  2  Atl. 
Rep.  309,  a  mortgage  void  for  want  of  a  seal  was  reformed  as  against  a 
subsequent  attaching  creditor  of  the  mortgagor.  See,  also,  Lebanon  Sav. 
Bank  v.  Hollenbeck,  29  Minn.  322;  13  N.  W.  Rep.  145, 

"Pena  v.  Armstrong,  95  Ind.  191,  the  court  saying:  "If  this  mortgage 
contained  no  description  of  these  premises  it  could  not  be  reformed  and  fore- 
closed against  an'  innocent  purchaser;  but  it  does  contain  a  description,  and 
this  description,  though  defective,  was  sufficient  to  put  the  purchaser  on 
inquiry,  and  thus  to  charge  him  with  notice  of  the  extent  of  the  premises 
intended  to  be  embra-ced  in  the  mortgage,"  citing  Wade  Notice,  §  319.  Mc- 
Aleer  v.  McMullen,  2  Pa.  St.  32;  Parker  v.  Teas,  72  Ind.  235.  See,  also, 
Cass  County  v.  OUdham,  75  Mk>.  50. 

"Dayton  v.  Citizens'  Nat.  Bank,  11  111.  App.  501. 

9S  Davis  v.  Rogers,  33  Me,  522. 

99   First  Nat.  Bank  v.  Wentworth,  28  Kans.  183. 


624  MARKETABLE  TITLE  TO  REAL  ESTATE. 

§  232.  Volunteers.  A  court  of  equity  will  not  decree  specific 
performance  of  a  voluntary  contract  to  convey  lands.  For  the 
same  reasxm,  it  will  not  interfere  to  correct  a  mistake  in  a  volun- 
tary conveyance  of  lands.  Where  such  a  deed  fails  to  take  effect, 
the  title  remains  in  the  grantor,  and  he  may  make  what  disposi- 
tion, of  the  premises  he  chooses.97  Therefore,  the  court  has  refused 
to  insert  in  a  voluntary  deed  the  word  "  heirs,"  necessary  to  create 
an  estate  of  inheritance,  and  omitted  by  mistake  of  the  drafts* 
man.98  But  this  rule  does  not  apply  where  the  controversy  is 
between  those  claiming  under  the  deed,  the  grantor  standing  in- 
different.99 Nor  where  the  grantee  has  taken  possession-,  made 
valuable  improvements  and  executed  a  mortgage  on*  the  premises, 
and  the  application  for  correction  of  the  deed  is  made  by  the 
mortgagee.1  Deeds  made  in  consideration  of  "  services  rendered 
and  love  and  affection  "  8  and  "  in  consideration  of  one  dollar  and 
natural  love  and  affection  " s  have  been  held  not  voluntary  within 
the  rule  denying  the  reformation  of  voluntary  conveyances.  A 
voluntary  deed  may,  of  course,  be  reformed  at  the  suit  of  the 
grantor  in  a  case  of  mistake.4 

§  233.  Married  women.  A  court  of  equity  will  not  reform  the 
deed-  of  a  married  woman  when  the  mistake  complained  of  con- 
sists in  the  omission  of  some  statutory  requisite,5  for  that  were  in 
effect  to  decree  specific  performance  against  a  married  woman, 
and  to  make  valid  that  which  the  statute  declares  shall  be  invalid. 
This  is  one  of  the  principal  applications  of  the  rule  that  equity 

"  2  Story  Eq.  Jur.  ft  793;  Adams  Eq.  (5th  Am.  ed.)  342  (169-),  note. 
Preston  v.  Williams,  81"  111.  176;  Else  v.  Kennedy,  67  Iowa,  376;  25  N.  W. 
Rep.  290;  Dickinson  v.  Glenney,  27  Conn.  104;  Froman  v.  Froman,  13  Ind. 
317;  Eaton  v.  Eaton,  15  Win.  259;  Smith  v.  Wood,  12  Wia.  382;  Dupre  v. 
Thompson,  4  Barb.  (N1.  Y.)  279. 

•Powell  v.  Morrissey,  98  N.  C.  420;  4  S.  E.  Rep.  185. 

"  Adah-  v.  McDonald,  42  Ga.  506. 

•Cumminga  v.  Freer,  26  Mich.  12ft. 

•Baker  v.  Pyatt,  108  Ind.  61;  9  N.  E.  Rep.  112. 

•Mason  v.  Moulder,  58  Ind.  1.  But  see  Powell  v.  Morrisuey,  96  N.  C.  426; 
4  S.  E.  Rep.  185, 

•Mit.-hpii  v.  Mitchell,  40  Ga.  11;  Crockett  v.  Crockett,  73  Ga.  647. 

•Martin  v.  Dwelly,  6  Wend.  (N.  Y.)  »;  21  Am.  Dec.  245;  Dickinson  v. 
Glenney,  27  Conn.  104;  Holland  v.  Moon,  39  Ark.  120;  Grapengether  v. 
Ferjerwy,  9  Iowa,  163;  74  Am.  Dec.  336;  Hamar  v.  Madskar,  60  Ind.  413. 


REFORMATION    OF    THE    CONVEYANCE.  625 

will  not  aid  the  defective  execution  of  a  statutory  power.6  But  a 
mistake  in  a  mere  matter  of  description  in  a  married  woman's 
deed  may  always  be  reformed,7  and  confessed  clerical  errors 
therein  will  be  corrected.8  And  mistakes  of  every  kind  in  her  deed 
will  be  corrected  in  those  States  in  which  statutes  exist,  placing 
the  contracts  of  married  women- upon  the  same  footing  as  contracts 
of  femmes  sole.9  In  California,  under  a  statute  allowing  the 
amendment  of  defective  certificates  of  acknowledgment,  the  court 
permitted  a  defective  certificate  of  acknowledgment  by  a  married 
woman  to  be  reformed.10 

•Williams  v.  Cudd,  26  So.  Car.  213;  2  S.  E.  Rep.  14. 

7  Gardner  v.  Moore,  75  Ala.  394;  51  Am.  Rep.  454;   Carper  v.  Munger,  62 
Ind.  481;   Wilson  v.  Stewart,  63  Ind.  294;    Styles  v.  Robbing,  76  Ind.  547; 
Jones  v.  Sweet,  77  Ind.  187;  Hewitt  v.  Powers,  84  Ind.  295. 

8  Savings  &  Loan  Assn.  v.  Meeks:,  66  Gal.  371;  5  Pac.  Rep.  624. 

9  Bradshaw  v.  Atkins,  110  111.  323;  Christman  v.  Colbert,  33  Minn.  509;  24 
N.  W.  Rep.  301. 

10  Hutchinson  v.  Ainsworth,  631  Cal.  286.     Without  the  aid  of  a  statute, 
defects  in  a  certificate  of  acknowledgment,  whether  of  a  married  woman  or 
any  other  person,  cannot  be  supplied.     Ante,  §  41. 

79 


BOOK  II. 

OF~  REMEDIES   IN  IHSAFFIRMANCE  OR  RESCISSION  OF  THE   CON- 
TRACT OF  SALE. 

CHAPTER  XXIII. 

OF  RESCISSION  BY  ACT  OF  THE  PARTIES. 

GENERAL  PRINCIPLES.     §   234. 
RESCISSION  BY  ONE  PARTY  ONLY.     §   235. 
STATUTE  OF  FRAUDS.     §  236. 

§  234.  GENERAL  PRINCIPLES.  We  have  already  seen  that 
upon  the  discovery  of  a  defect  in  the  title  to  real  estate  the  steps  to 
be  taken  by  the  purchaser  depend  upon  the  stage  that  the  transac- 
tion has  reached,  upon  the  express  agreements,  if  any,  which  the 
parties  have  entered  into  respecting  the  property,  upon  those  which 
the  law  implies  from  their  acts  and  conduct,  and  from  the  transac- 
tion itself,  and  upon  the  nature  of  the  defect  in  respect  of  which 
relief  is  claimed.  In  some  instances  the  purchaser,  because  of  the 
defect,  may  rescind  and  abandon  the  contract,  or  affirm  it  and 
demand  to  be  compensated  in  damages  for  the  breach ;  in  some  he 
may  seek  his  remedy  in  a  court  of  law,  or  in  a  court  of  equity,  at 
his  election,  while  in  others  no  such  right  of  election  exists,  and  he 
must  proceed  in  the  one  court  or  the  other,  according  to  the  nature 
of  his  case.  But  whatever  course  he  may  take  amounts  of  neces- 
sity either  to  a  rescission  or  an  affirmance  of  the  contract ;  and,  as 
these  diametrically  opposite  attitudes  of  the  purchaser  in  respect 
to  the  contract  constitute  the  most  natural  and  convenient  sub- 
division under  which  the  rights  of  purchasers  of  defective  titles  to 
real  estate  may  be  considered,  they  have  been  adopted  as  main 
features  in  the  analysis  and  classification  of  this  work.  The  t 
going  pages  having  been  devoted  to  the  examination  of  remedies  in 
affirmance  of  the  contract,  and  their  incidents,  we  pass  now  to  tin 
consideration  of  those  in  which  the  purchaser  elects  to  disaffirm, 
abandon  or  rescind  the  contract. 


OF    RESCISSION    BY    ACT    OF    THE    PARTIES.  627 

Rescission  is  the  abrogation  or  annulment  of  a  contract.1  The 
most  common  legal  use  of  the  term  is  to  designate  the  jurisdiction 
which  equity  assumes  in  the  cancellation  of  contracts;  but  rescis- 
sion may,  of  course,  be  accomplished  by  act  of  the  parties  without 
resort  to  judicial  proceedings.  The  parties  may,  at  any  time 
before  conveyance,  rescind  the  contract  by  consent,2  which  consent 
may  be  express  or  implied  from  the  acquiescence  of  the  one  party 
in  the  acts  of  the  other.3  But,  in  order  to  bind  the  one  party 
by  his  presumed  acquiescence  in  the  acts  of  the  other,  it  must 
clearly  appear  that  he  had  notice  of  the  intent  of  the  other  to 
rescind,4  or  knowledge  of  such  acts  on  the  part  of  the  latter  as 
constituted  in  themselves  a  rescission.5  The  proper  course  to  be 

1  The  several  ways  jn  which  the  rescission  of  an  executory  contract  may 
occur  have  been  thus  summarized  by  Mr.  Fry  in  (his  treatise  on  Specific  Per- 
formance, §  998:     "(1)   A  simple  agreement  between  the  parties  to  rescind 
the  contract.      (2)   An  agreement  between  the  parties  to  new  terms,  which 
put  an  end  to  the  terms  of  the  old  contract.      (3)    An  agreement  between  the 
original  parties  and  a  third  person  by  which  the  third  person  takes  the  place 
of  one  of  the  original  contractors.      (4)    An  exercise  of  a  power  to  rescind 
reserved  by  the  contract  to  one  or  both  of  the  contractors.     (5)   An  exerci.se 
of  the   right  to  rescind  which  results  to  the  injured  party  from   fraud  or 
mistake  in  relation  to  the  contract.     (6)   An  exercise  of  the  right  to  rescind 
which  results  to  one  party  from  the  other  party's  absolute  refusal  to  perform 
the  contract  or  unreasonable  delay  in  its  performance.      (7)   An  exercise  of 
the  right  to  rescind  which  results  to  one  party  from  the  other  party's  having 
made  performance  impossible." 

Surrender  of  possession  by  the  purchaser  and  acceptance  thereof  by  the 
vendor  do  not  necessarily  amount  to  a  rescission  of  the  contract  by  the 
parties,  so  as  to  preclude  the  vendor  from  asserting  rights  under  the  contract 
against  the  purchaser.  Pioneer  Min.  Co.  v.  Price,  189  Mo.  App.  30;  176 
S.  W.  474. 

2  Fry  Specific  Perf.   §  998;   2  Warvelle  Vend.  834,  947;   Boyce  v.  McCul- 
lough,  3  Watts  &  S.   (Pa.)   420;  Lauer  v.  Lee,  42  Pa.  St.  165. 

"Carter  v.  Fox,  11  Cal.  App.  67;  103  Pac.  910;  Tague  v.  McColm,  145 
Iowa,  179;  123  N.  W.  960.  Demand  of  possession  by  the  vendor  and  sur- 
render of  possession  by  the  vendee,  when  the  latter  refuses  to  pay  the  pur- 
chase-money because  of  want  of  title  in  the  vendor,  amount  to  a  mutual 
rescission  of  the  contract.  Prentice  v.  Erskine,  164  Cal.  446;  129  Pac.  585. 

4  A  parol  agreement  discharging  the  vendee  from  his  contract  as  to  part 
of  the  land  on  account  of  defective  title  is  a  good  defense  to  an  action  for  the 
purchase  money,  pro  tanto.     Hussey  v.  Roquemore,  27  Ala.  281 ;   Caxney  v. 
Newberry,  24  111.  203;  Alexander  v.  Utley,  7  Ired.  Eq.  (N".  C.)  242. 

5  2  Warvelle  Vend.  8«3. 


628  MARKETABLE   TITLE  TO   REAL   ESTATE. 

pursued  by  the  party  intending  to  rescind  is  to  notify  the  other 
party  of  that  intent.6  This  form  of  relief  is  one  to  which  the 
parties,  acting  in  good  faith,  not  infrequently  resort,  the  pur- 
chaser agreeing  to  give  up  the  premises  and  the  vendor  returning 
the  purchase  money.  If,  upon  a  rescission  of  the  contract  by 
consent,  the  vendor  fail  to  return  the  purchase  money,  the  vendee 
may  recover  it  back ;  the  law  implies  an  agreement  on  the  part  of 
the  vendor  to  repay.7  And  where  the  contract  is  rescinded  by  the 
acts  of  both  parties,  the  purchaser  may  recover  back  what  he  has 
paid,  though  the  contract  provides  that  upon  default  in  the  pay- 
ment of  the  purchase  money  the  purchaser  shall  forfeit  such 
payments  as  he  may  have  made.8  He  is  not  in  default  in  failing 
to  pay  on  the  day  named  if  he  then  points  out  a  reasonable  objec- 
tion to  the  title.' 

The  contract  of  sale  frequently  provides  that  the  purchaser  shall 
pay  the  purchase  money  within  a  certain  time,  and  receive  a  clear 
title,  and  in  default  of  payment  in  full  at  that  time,  shall  forfeit 
so  much  of  the  purchase  money  as  may  have  been  paid.  Where 
stich  a  provision  exists,  the  forfeiture  cannot  occur  so  long  as  the 
vendor  has  not  a  good  title.10 

If  the  purchaser  be  entitled  to  rescind  because  of  the  inability 
of  the  vendor  to  give  a  marketable  title,  the  court  cannot  inquire 
into  his  motive  for  rescission.  It  is,  therefore,  immaterial  that 
the  value  of  the  property  had  greatly  declined  at  the  time  fixed 
for  performance  of  the  contract." 

§  2:5."..  RESCISSION  BY  THE  ACT  OF  ONE  PARTY  ONLY.  Any 
act  by  which  either  party  clearly  manifests  that  he  has  abandoned 

•1  Supd.  Vend.  (14th  Am.  ed.)  370  (243).  Reynolds  v.  Nelson,  6  Madd. 
18;  Alexander  v.  Utley,  7  Ired.  Eq.  (N.  C.)  242:  MoDmvi-11  v.  M<Kesson.  0 
Ired.  Kq.  (X.  C.)  278.  Where  vendor  and  vendee  are  both  endeavoring  to 
clear  up  a  defeat  in  the  title,  neither  has  a  ripht  to  rex-ind  «u  consider  his 
obligation  to  the  other  determined  without  reasonable  notice.  Lyons  v. 
I'\ntt.  (X.  J.  Kq.)  26  AtL  Rep.  33. 

:  Beaman  v.  Simmons,  76  X.  Y.  43. 

•Shively  v.  I^nd  Co.,  (Cal.)  33  Par.  Rep.  848,  citing  several  California 
decisions. 

•Brown  v.  Reichlinjf,  86  Kaiw.  640;   121  Par.  1127. 

••Getty  v.  Petera,  SJ  Mi,h.  r.r.l  .  in  X.  \V.  Rep.  103«:  <«.nver-«»  v.  Blumrich, 
14  Mieh.  10ft;  00  iAm.  Deo.  23O. 

"Criin  v.  rmWn.  1",  C.il.  007;  103  Pac.  178;   132  Am.  St.  Rep.  127. 


OF    RESCISSION    BY    ACT    OF    THE    PARTIES.  629' 

the  contract,  is  as  to  him  a  rescission;  as  where  the  purchaser 
seeks,  by  judicial  proceedings,  to  recover  back  the  purchase  money 
which  he  has  paid,12  or  where  the  vendor,  in  default  of  payment  of 
the  purchase  money,  resells  the  premises  to  a  stranger,13  or  where 
he  declares  the  contract  rescinded  on  account  of  his  inability  to 
furnish  a  good  title,  or  a  good  merchantable  abstract.14  Of  course 
one  party  to  a  contract  cannot,  of  his  own  motion,  deprive  the 
other  of  his  right  to  enforce  the  contract  by  declaring  that  he  will 
proceed  no  further  in  the  matter.  But  if  the  act  of  one  party  be 
such  as  must  of  necessity  prevent  the  other  party  from  fulfilling 
the  contract,  as  where  the  vendor  disables  himself  from  perform- 
ance on  his  part  by  conveying  away  the  premises,  the  other  party 
may  treat  the  contract  as  rescinded.15 

A  contract  can  be  rescinded  in  pais  of  course  only  by  consent  of 
all  the  contracting  parties.  But  such  consent  need  not  be  expressed 
in  words;  it  may  be  implied  from  the  acts  and  conduct  of  the 
other  party.  If  one  party  announces  his  intention  to  rescind  and 
the  other  does  not  object;  or  if  one  party  fails  to  perform  or 
disables  himself  from  performing  on  his  part,  the  other  party  may 
treat  the  contract  as  rescinded.16  A  subsequent  conveyance  of  the 

12 1  Sugd.  Vend".  (8th  Am.  ed.)  537  (368).  Refusal  to  execute  a  conveyance 
is  a  rescission  by  the  vendor.  2  Sugd.  Vend.  (8th  Am.  ed.)  212  (562). 

iaKelchum  v.  Everson,  13  Johns.  (N.  Y.)   359;  7  Am,  Dec.  384. 

"Elder  v.  Chapman;  176  111.   143;   52  N.  E.  Rep.  10. 

"Chitty  Conk   (10th  Am.  ed.)   812;  et  seq. 

ie  Parsons  Con-t.  677.  Lewis  v.  White,  16  Ohio  St.  444.  In  Trevino  v. 
Cantu,  61  Tex.  88,  it  appeared  that  upon  the  execution  of  a  deed  with  general 
warranty,  the  parties  executed  at  the  same  time  another  instrument  providing 
that  if  tihe  title  should  fail,  the  purchaser,  who  had  taken  possession  under 
the  deed,  should  not  recover  more  than  $2,000  which  was-  the  price  paid.  It 
wag  held  that  the  vendor  could  not  by  afterwards  confessing  that  the  title 
was  defective  compel  the  purchaser  in  a  suit  for  rescission  to  accept  the 
$2,000;  that  the  purchaser  had  a  right  to  retain  possession  and  resist  an 
adverse  claim;  and  in  case  of  eviction,  recover  according  to  tihe  terms  of  his 
contract;  and  that  he  had  a  right  to  buy  out  the  adverse  claimant  if  he 
desired  to  do  so,  and  to  every  other  advantage  resulting  from  possession,  the 
court  -saying  that  to  allow  a  rescission  in  opposition  to  the  wishes  of  the 
vendee  on  a  mere  confession  of  the  invalidity  of  the  title  would  be  to  place 
the  purchaser  at  the  miercy  of  the  seller,  since  in  all  instances  in  which  the 
land  had  appreciated  in  value,  the  seller  could  confess  invalidity  of  the  title, 
recover  the  land  and  speculate  upon  the  advance  in  the  value  of  the  property. 


630  MARKETABLE   TITLE   TO   REAL   ESTATE. 

premises  by  the  vendor,  after  the  purchaser  has  defaulted  in  the 
payment  of  the  purchase  money,  is  not  necessarily  a  rescission  of 
the  contract.  The  vendor  may  assign  his  contract  to  a  third  per- 
son, and  the  conveyance  to  the  assignee  may  be  made  for  the 
purpose  of  enabling  him  to  tender  performance  to  the  purchaser.17 
A  rescission  of  the  contract  by  act  of  the  parties,  mmst  be  concurred 
in  by  both  parties,  and  must  affect  all  parties  previously  bound. 

When  it  is  said  that  one  party  cannot  rescind  the  contract,  with- 
out the  consent  of  the  other,  it  is  not  meant  that  he  cannot  himself 
abandon  the  contract  if  he  conceives  that  he  has  a  right  so  to  <1<>. 
but  that  he  cannot  by  so  doing  deprive  the  other  party  of  his  rijrlit 
to  enforce  the  contract.  Thus,  if  the  vendor  attempt  to  rescind  by 
conveying  the  premises  to  a  stranger,  he  cannot  thereby  affect  tin- 
right  of  the  other  party  to  affirm  the  contract  by  action  for  dam- 
ages, and  though  the  vendee  may  elect  to  rescind  by  abandoning 
the  possession  and  refusing  to  pay  the  purchase  money,  the  right 
of  the  vendor  to  affirm  the  contract  by  demanding  specific  perform- 
ance in  equity,  or  damages  at  law,  remains  unimpaired.  If  the 
purchaser  elect  to  treat  the  contract  as  rescinded,  his  election  must 
be  evidenced  by  acts  as  well  as  words,  that  is  to  say,  that  he  must 
give  up  whatever  he  has  received  under  the  contract,  and  cannot 
avoid  its  obligation  by  merely  declaring  that  he  will  proceed  no 
further  in  the  business." 

§  L'.'Ji;.  STATUTE  OF  FRAUDS.  It  has  been  decided  that  a 
rescission  of  a  contract  of  sale  of  lands  by  mutual  agreement,  being 
a  contract  relating  to  real  estate,  is  within  the  Statute  of  Frauds,1' 
and  must  be  in  writing,  but  the  weight  of  authority  is  that  a 
rescission  by  parol  is  valid.20  The  rescission,  however,  must  be 

"Davidson  v.  Keep,  61  Iowa,  218;  16  N.  W.  Rep.  101.  Compare  Dotaon  v. 
Bailey,  76  Ind.  434. 

••Li-win  v  Mi-Milieu,  41  Barb.  (X.  Y.)  420;  Boyce  v.  McCulloch,  3  Watte 
&  FWjr.  (Pa.)  429. 

"Dial  v.  Grain,  10  Tex.  444. 

W2  Warvelle  Vend.  834;  Fry  Specific  Perf.  8  1000.  Boyce  v.  McCulloch.  » 
Watt*  A  Serg.  (Pa,)  420;  Goucher  v.  Martin,  9  Watta  (Pa.),  106.  In  Gimby 
r.  Sluter,  44  Md.  237,  the  question  whether  a  parol  agreement  to  rescind  a 
contract  for  the  aale  of  land*  in  within  the  Statute  of  Frauds,  was  rained 
but  not  <!«'. -iili-d.  The  court  referred  to  Burkhouae  v.  Crofwhy,  2  Eq.  Cas.  Ab. 
34,  pi.  44;  GOBS  v.  Ld.  Nugent,  5  B.  &  Ad.  6S;  Sugden  V.  &,  P.  167,  168; 


OF    RESCISSION    BY    ACT    OF    THE    PARTJES.  031 

accompaiaied  by  acts  leaving  no  doubt  of  the  intent.  Such  as 
cancelling  the  agreement  or  removing  from  the  premises.21  A 
learned  writer  observes  in  this  connection :  "  It  has  been  urged 
that  the  Statute  of  Frauds  precludes  parol  evidence  of  rescission 
of  contracts  relating  to  land ;  for  a  contract  to  waive  a  purchase  of 
land  as  much  relates  to  land  as  the  original  contract.  But  it  is 
replied  that  the  rescinded  contract  is  not  the  contract  on  which  the 
action  is  brought,  and  that  while  the  statute  provides  that  no 
action  shall  be  brought  on  any  contract  of  the  description  there 
specified,  except  it  be  in  writing,  it  does  not  provide  that  every 
such  written  contract  shall  support  an  action.  In  the  result  it  is 
perfectly  well  ascertained  that  a  contract  in  writing,  and  by  law 
required  to  be  in  writing,  may  in  equity  be  rescinded  by  parol, 
and  waiver  by  mutual  parol  agreement,  therefore,  furnishes  a 
sufficient  defense  to  an  action  for  specific  performance." 22 

Addison  Cont.  97;  2  Taylor  Ev.  §  1905;  Benjamin  Sales,  159;  Browne  Stat. 
Frauds,  §§  429-436. 

^Lauer  v.  Lee,  42  Pa.  St.  165.  See,  also,  Fry  Spec.  Perf.  (3d  Am.  ed.) 
§  1004,  and  Id.  note  1,  p.  604, 

22  Fry  Spec.  Serf.  ( 3d  Am.  ed'. )  §  1002 ;  citing  Gorman  v.  Salisbury,  1  V«rn. 
240;  Inge  v.  Lippingwell,  2  Dick.  469;  Davis  v.  Symonds,  1  Cox,  402 j  Robin- 
son v.  Page,  3  Russ.  114. 


OF  VIRTUAL  RESCISSION  OF  THE  CONTRACT  BY  PROCEEDINGS  AT 
LAW. 

OF  PROCEEDINGS  AT  LAW  WHERE  THE  CONTRACT  is  EXECUTORY. 
CHAPTER  XXIV. 

OF  THE   RIGHT  TO   RECOVER  BACK   OR   DETAIN   THE   PURCHASE 
MONEY  ON  FAILURE  OF  THE  TITLE. 

GENERAL  PRINCIPLES.      §   237. 

RESTITUTION  OF  THE  PURCHASE  MONEY.     §   238. 

WHAT  ACTION  PURCHASER  SHOULD  BRING.     §   239. 

DETENTION  OF  THE  PURCHASE  MONEY.     §   240. 

EXCEPTIONS  AND   QUALIFICATIONS.     §   241. 

WHAT   OBJECTIONS   TO  TITLE  MAY  BE  MADE.     §   242. 

EXPENSES   OF  EXAMINING   THE   TITLE.     §   243. 

BURDEN  OF  PROOF.     MISCELLANEOUS  RULES.     §    244 

RIGHT   TO    RESCIND    WHERE    THE    ESTATE    IS    INCUMBERED. 

§   245. 
BUYING   WITH   KNOWLEDGE   OF    DEFECT    OR    INCUMBRANCE. 

§   246. 

CHANCING  BARGAINS.     §   247. 
EFFECT  OF  ACCEPTING  TITLE  BOND.     §   248. 
INQUIRY    INTO     CONSIDERATION     OF    SEALED    INSTRUMENT. 

S   249. 

RIGHT  TO  ENJOIN  COLLECTION  OF  PURCHASE  MONEY.     §   250. 
RIGHTS   AGAINST   TRANSFEREE   OF   PURCHASE-MONEY   NOTE. 

§   251. 

REFUSAL  OF  VENDOR  TO  CONVEY  FOR  WANT  OF  TITLE.     $   252. 
TENDER  OF  PURCHASE  MONEY  AND  DEMAND  OF  DEED,     f   253. 
OFFER  TO  RESCIND.     §   254, 
PLEADINGS.     $   255. 

§  2.'*7.  GENERAL  PRINCIPLES.  Strictly  speaking  there  is  at 
law  no  such  tiling  as  a  technical  rescission  of  a  contract  for  the  sale 
of  lands,  for  a  court  of  law  has  no  power  to  decree  the  surrender 
and  cancellation  of  the  contract,  and  the  restitution  of  whatever 
cither  party  has  received  in  partial  performance  thereof.  These 
are  matters  particularly  within  the  province  of  a  court  of  equity. 
Hut  a  virtual  rescission  of  the  contract  is  accomplished  at  law  by 
allowing  the  purchaser,  in  case  the  title  fails,  to  recover  back  so 

[632] 


RECOVER  OR  DETAIN  PURCHASE  MONEY  ON  FAILURE  OF  TITLE       633 

much  of  the  purchase  money  as  he  may  have  paid,1  or  to  detain 
that  which  remains  unpaid,  upon  condition  in  either  case  that  he 
restore  the  premises  to  the  vendor,  and  place  him  substantially  in 
the  same  condition  in  which  he  was  before  the  contract  was  made. 

The  right  to  rescind  an  executory  contract  for  the  sale  of  land 
is  perhaps  more  frequently  exercised  by  proceedings  of  this  kind, 
than  in  any  other  mode.  Of  this  nature  is  4;he  common  action  to 
recover  back  the  deposit  made  at  the  time  of  the  purchase,  subject 
to  the  right  of  the  purchaser  to  examine  the  title.  It  is  to  be 
borne  in  mind,  however,  that  the  right  of  the  purchaser  to  recover 
back  or  to  detain  the  purchase  money  where  the  title  is  found  to 
be  defective,  is  subject  to  the  vendor's  right  to  perfect  the  title  in 
all  cases  in  which  time  is  not  material.2 

The  right  of  the  purchaser  to  detain  or  to  recover  back  the  pur- 
chase money  depends  mainly  upon  the  following  considerations, 
namely:  Whether  the  contract  has  been  executed  by  a  conveyance 
to  the  purchaser;  whether  that  conveyance  contains  covenants  for 
title;  and  whether  the  purchaser  or  grantee  is  in  the  undisturbed 
possession  and  enjoyment  of  the  premises.  The  right  to  relief 
in  case  of  fraud  by.  the  vendor  in  respect  to  the  title  is  usually 
enforced  in  equity,  though  an  action  at  law  may  be  maintained 
to  recover  damages  for  the  deceit.  There  have  been  few  more 
fruitful  sources  of  litigation  in  the  United  States  than  disputes 
between  vendors  and  purchasers  of  lands  in  respect  to  the  suffi- 
ciency of  title.  The  vast  number  of  cases  to  be  found  in  this  field 

1  Brown  v.  Witter,  10  Ohio,  144.    No  argument  is  needed  to  show  that  an 
executory  contract  for  the  eale  of  lands  is  practically  rescinded  by  proceed- 
ings at  law  when  the  purchaser  recovers  back  his  purchase  money.    "A  court 
of  equity,"  says  a  learned  writer,  "entertains  a  suit  for  the  express  purpose 
of  procuring  a  contract  or  a  conveyance  to  be  canceled,  and  renders  a  decree 
conferring  in  terms  that  exact  relief.    A  court  of  law  entertains  an  action  for 
the  recovery  of  the  possession  of  chattels,  or  under  some  circumstances  for 
the  recovery  of  land,  or  for  the  recovery  of  damages,  and  although  nothing 
is  said  concerning  it,  either  in  the  pleadings  or  in  the  judgment,  a  contract 
or  a  conveyance,  as  the  case  may  be,  is  virtually  rescinded;  the  recovery  is 
based  upon  the  fact  of  such  rescission,  and  could  not  have  been  granted  unless 
the  rescission  had  taken  place.     The  remedy  of  cancellation  is  not  expressly 
asked-  for,  nor  granted  by  the  court  of  law,  but  all  its  effects  are  indirectly 
obtained  in  the  legal  action."     1  Pomeroy  E<j.  Jur.  §  110. 

2  Post,  ch.  32. 


634  MAKKETABLE   TITLE   TO   REAL   ESTATE. 

are  to  be  attributed  principally  to  the  carelessness  and  indifference 
of  purchasers  in  omitting  an  examination  of  the  title  before  com- 
pleting the  contract ;  to  their  desire  to  escape  from  injudicious 
and  unprofitable  bargains ;  and  to  the  fraud  of  the  vendor  in  palm- 
ing off  a  bad  title  upon  a  credulous,  inexperienced  or  ignorant 
purchaser.  The  circumstances  under  which  the  purchaser  may 
maintain  an  action  to  recover  back  his*  purchase  money  while  the 
contract  is  executory  have  been  thus  classified  in  an  American 
case:3  (1)  Where  the  rescission  is  voluntary,  and  with  mutual 
consent  of  the  parties,  and  without  default  on  either  side; 
(2)  Where  the  vendor  cannot  or  will  not  perform  the  contract  on 
his  part ;  (3)  Where  the  vendor  has  been  guilty  of  fraud  in  making 
the  contract  ;*  (4)  Where  by  the  terms  of  the  contract,  it  is  left  in 
the  purchaser's  power  to  rescind  it  by  any  act  on  his  part,  and  he 
does  it;5  (5)  Where  neither  party  is  ready  to  complete  the  con- 
tract at  the  stipulated  time,  but  each  is  in  default.6  Of  these  cases 
the  last  two  appear  to  be  included  in  the  first  three ;  of  those  three 
rescission  by  consent  of  both  parties,  and  rescission  in  cases  of 
fraud,  are  elsewhere  considered  in  this  work.7  We  have,  there- 
fore, to  do  now  only  with  cases  in  which  the  vendor  cannot,  for 
want  of  title,  perform  the  contract  on  his  part.  The  state  of 
American  law  respecting  the  right  of  the  purchaser  to  detain  or  to 
recover  back  the  purchase  money  on  failure  of  the  title,  can  best 
be  presented,  it  is  believed,  in  a  series  of  general  propositions. 
S..IMO  of  these  are  necessarily  qiialifications  or  restrictions  of  the 
others;  consequently  the  reader,  before  quitting  the  subject,  should 
glance  over  the  entire  series.  Those  propositions  may  be  thus 
stated : 

T.     A  purchaser  of  land  mav,  so  lonjr  as  the  emit  raft  remains 

•Baston  v.  Clifford,  68  111.  67;  18  Am.  Hop.  547;  Bryson  v.  Crawford,  68 
111.  362. 

4  Haston  v.  Clifford.  6»  111.  07.  Citing  Smith  v.  Lamb.  2fl  111.  306:  79  Am. 
.VI;  Bannistor  v.  Read,  1  Oilm.  (IH.)  90;  Battle  v.  Rochester  City 
Bank,  5  Bar!..  (X.  Y.)  414.  1  Chit.  PI.  355. 

•Baston  v.  Clifford,  Oft  111.  67.  Citing  Towns  v.  Barrett.  1  Term  R.  133; 
Oillett  v.  Maynant.  5  Johns.  (N".  Y.)  85:  4  Am.  Deo.  320:  1  Chit.  PI.  356. 

•Ba«t«n  v.  Cliff.ir.l.  08  111.  67.  Citing  1  Chit.  PI.  355;  Chit,  on  Contract 
(5th  Am.  ed.),  632. 

1  Ante,  ch.  23 ;  post,  chs.  29  and  36. 


KECOVEK  OK  DETAIN  PURCHASE  MONEY  ON  FAILUBE  OF  TITLE       635 

unexecuted  by  a  conveyance,  as  a  general  rule,  recover  back  or 
detain  the  purchase  money,  if  the  title  of  the  vendor  be  not  such 
as  the  purchaser  is,  under  the  contract,  entitled  to  require.8 

II.  A  purchaser  of  lands  in  undisturbed  possession  cannot,  as 
a  general  rule,  while  the  contract  is  executory,  recover  back  the 
purchase  money  on  failure  of  the  title,  or  resist  the  payment 
thereof,  without  restoring  the  premises  to  the  vendor  and  placing 
him  in  statu  quo.9 

III.  If  the  contract  has  been  executed  by  a  conveyance  of  the 
land  to  the  purchaser  without  general  covenants  for  title,  he  can, 
if  the  title  fails,  neither  recover  back  the  purchase  money  nor 
detain  that  which  remains  unpaid,  either  at  law  or  in  equity, 
unless  the  vendor  was  guilty  of  fraud,  or  the  contract  was  founded 
in  mistake  of  the  parties  as  to  some  fact  upon  which  the  title 
depended.10 

IV.  If  the  contract  has  been  executed  by  the  delivery  and 
acceptance  of  a  conveyance  containing  a  covenant  of  warranty,  or 
for  quiet  enjoyment,  or  against  incumbrances,  and  there  has  been 
such  a  breach  of  those  covenants  as  would  give  the  grantee  a 
present  right  to  recover  substantial  damages  against  the  grantor, 
the  former  will,  in  an  action  against  him  for  the  purchase  money, 
be  allowed  to  set  up  such  a  breach  as  a  defense  by  way  of  recoup- 
ment of  the  plaintiff's  demand.     If  there  has  been  no  such  breach 
the  grantee  cannot  detain  or  recover  back  the  purchase  money.11 

V.  If  the  contract  has  been  executed  by  a  conveyance  with  a 
covenant  of  seisin  or  of  good  right  to  convey,  and  it  clearly  appears 
that  the  covenantor  had  no  title,  the  covenantee,  though  he  has 
not  been  disturbed  in  the  possession,  will,  it  seems,  in  some  of  the 
American  States,  be  permitted  to  set  up  the  breach  of  covenant 
of  seisin  as  a  defense  to  an  action  for  the  purchase  money,  upon 
condition  that  he  convey  the  premises  to  the  covenantor,  and  do 
all  that  may  be  necessary  to  put  him  in  statu  qiu>.12 

*  This  chapter. 
'  °  Post,  oh.  25. 

10  Post,  ch.  27. 

11  Ante,  oh.  16. 

12  Post,  ch.  26. 


636  MARKETABLE   TITLE   TO   REAL   ESTATE. 

VI.  After  a  contract  for  the  sale  of  lands  has  been  executed  by 
a  conveyance  with  covenants  for  title,  the  purchaser  cannot,  though 
he  has  been  evicted  by  one  claiming  under  a  paramount  title,  or 
though  he  has  discharged  an  incumbrance  upon  the  estate,  recover 
back  the  purchase  money  eo  nomine,  either  by  suit  in  equity,  or 
by  action  against  the  vendor  for  money  had  and  received  to  the 
plaintiff's  use.      His  remedy  is  upon  the  covenants  for  title.13 

VII.  If  the  vendor  fraudulently  induced  the  purchaser  to 
accept  a  bad  title  the  latter  may  at  law  recover  back  or  detain  the 
purchase  money  as  damages,  whether  the  contract  is  executory,  or 
has  been  executed;  and  if  executed,  whether  the  conveyance  was 
with  or  without  covenants  for  title;  and  if  with  covenants  for  title, 
whether  those  covenants  have  or  have  not  been  broken.14 

PROPOSITION   I. 

A  purchaser  of  lands  may,  so  long  as  the  contract  remains 
unexecuted  by  a  conveyance,  as  a  general  rule,  recover  back  or 
detain  the  purchase  money,  if  the  title  of  the  vendor  be  not  such 
as  the  purchaser  is,  under  the  contract,  entitled  to  require. 

§238.  BIGHT  TO  RECOVER  BACK  THE  PURCHASE  MONEY. 
As  to  the  right  to  recover  back  the  purchase  money,  the  rule  is 
thus  stated  by  an  eminent  authority:  "When  a  person  sells  an 
interest  and  it  appears  that  the  interest  which  he  pretends  to  sell 
was  not  the  true  one,  as,  for  example,  if  it  was  for  a  less  number 
of  years  than  he  had  contracted  to  sell,  the  purchaser  may  con- 
sider the  contract  at  an  end  and  bring  an  action  for  money  had 
and  received  to  recover  any  sum  of  money  which  he  may  have  paid 
in  part  performance  of  the  agreement  for  sale."  The  rule  thus 
stated  has  been  frequently  recognized  in  America.15  The  pur- 

wPo«t,  ch.  28. 

14  Po*t,  oh.  20.  Tn  a  case  in  which  the  purchaser  deposited  the  cash  pay- 
ment with  a  Htakejjolder,  to  !M»  forfeited  on  failure  to  comply  with  the  con- 
tract, and  the  vendor  made  no  effort  to  cure  defeets  pointed  out  1>y  the  pur- 
chaser'* counsel  on  examination  of  the  title,  the  vendor  could  not  claim  a 
forfeiture  of  the  deposit.  Greenville  Nat.  Bank  v.  Parkinson,  (Tex.  Civ. 
App.)  52  R.  W.  Rep.  648. 

"  1  Sujfd.  Vend.  (14th  ed.)  2fl^.  Wherever  the  purchaser  has  a  right  to 
reiwind  the  contract,  he  may  bring  an  action  for  money  had  and  received  to 
In-,  u*e.  Id.  2 ll».  Turner  v.  Nightingale,  2  Knp.  63ft;  Hearn  v.  Tomlin, 


RECOVER  OR  DETAIN  PURCHASE  MONEY  ON  FAILURE  OF  TITLE       637 

cha&er  may,  of  course,  rescind  the  contract  and  recover  back  or 
detain  the  purchase  money  at  law,  in  any  case  in  which  the  vendor 
fraudulently  misrepresented  or  concealed  the  state  of  his  title.16 
If  while  the  contract  is  executory  the  purchaser  is  forced  to  buy 
in  an  outstanding  adverse  claim  to  the  property  in  order  to  protect 
his  title,  he  may  recover  back  from  the  vendor  or  his  estate  the 
amount  expended  for  that  purpose." 

Where  the  contract  provided  for  the  forfeiture  of  cash  pay- 
ments made  by  the  purchaser  in  case  of  his  failure  to  pay  the 
deferred  payments  promptly,  it  was  held  competent  for  the  pur- 
chaser to  show  an  oral  agreement  that  such  payments  were  to  be 
further  postponed  until  the  right  of  the  vendor  to  receive  and 
convey  title  to  the  land  should  be  determined.  Such  agreement 
estops  the  vendor  from  claiming  a  forfeiture  of  the  purchaser's 
deposit  while  the  question  of  his  title  is  unsettled.18 

Peake  Cas.  192;  Thompson  v.  Miles,  1  Esp.  184;  Hibbert  v.  Shee,  1  Camp. 
Cas.  113;  Duffell  v.  Wilson,  1  Camp.  Cas.  401;  Greville  v.  Da  Costa,  Peake 
Add.  Gas.  113;  Guttschlick  v.  Bank,  5  Cranch  (U.  S.  C.  C.),  435;  Seibel  v. 
Purchase,  134  Fed.  Rep.  484;  Sanders  v.  Lansing,  70  Cal.  429;  11  Pac.  Rep. 
702;  Burks  v.  Da  vies,  85  Cal.  110;  24  Pac.  Rep.  613,  where  the  purchaser  had 
only  an  "  option  "  to  take  the  property  at  a  certain  price.  Swihart  v.  Cline, 
19  Ind.  264;  Wickliff  v.  Clay,  1  Dana  (Ky.),  585;  Fields  v.  Baum,  35  Mo. 
App.  511;  Pino  v.  Beckwith,  1  New  Mex.  19;  Force  v.  Dutcher,  18  N.  J. 
Eq.  401;  Judson  v.  Wass>,  11  Johns.  (K  Y.)  525;  6  Am.  Dec.  392;  Putnam 
v.  Westcott,  19  Johns.  (N.  Y.)  73;  Stevens  v.  Van  Ness,  19  N.  Y.  'Supp.  950; 
Wetmore  v.  Bruce,  118  N.  Y.  319;  23  N.  E.  Rep.  303;  Smith  v.  Browning, 
225  N.  Y.  3S8;  1(22  N.  E.  217;  Pipkin  v.  James,  1  Humph.  (Term.)  325; 
34  Am.  Dec,  652;  Buchanan  v.  Alwell,  8  Humph.  (Tenn.)  516;  Topp  v. 
White,  12  Heisk.  (Tenn.)  165;  Mayes  v.  Blanton,  67  Tex.  246;  House  v. 
Kendall,  55  Tex.  40;  Hall  v.  Huffhines,  47  Tex.  Civ.  App.  276;  105  S.  W. 
522;  Parsons  v.  Smith,  46  W.  Va.  728;  34  S.  E.  Rep.  922;  Burke  v.  Schreiber, 
183  Mass.  35;  66  N.  E.  Rep.  411;  Maxwell  v.  Gregory,  53  Neb.  5;  73  N.  W. 
Rep.  220;  Talbot  v.  Land  Co.,  143  La.  263;  78  So.  533;  Schlemmer  v.  Nelson, 
123  Minn.  66;  142  N.  W.  1041;  Maya  v.  Blair,  120  Ark.  69;  179  S.  W.  331; 
Indiana  etc.,  Mfg.  Co.  v.  Pharr,  82  Ark.  573;  102  S.  W.  686;  Rochells  v. 
Brookman,  152  111.  App.  253.  In  Kerr  v.  Read,  (Cal.  App.),  179  Pac.  399, 
it  was  held  that  the  purchaser  was  entitled  to  recover  his  deposit  where 
the  vendor,  without  his  consent,  conveyed  the  property  to  a  stranger.  As 
to  the  right  of  a  subscriber  to  the  stock  of  a  land  company  to  recover  back 
his  subscription  on  failure  of  title  to  the  lands-  forming  part  of  the  capital 
stock  of  the  company,  see  Wright  v.  Swayne,  5  B.  Mon.  (Ky.)  441. 
19 Post,  chs.  29  and  35.  Inness  v.  Willis,  16  Jones  &  S.  (N,  Y.)  188. 

17  Ante,  ch.  19.     Ferguson  v.  Teel,  82  Va.  690. 

18  Missouri,  K  &  T.  R.  Co.  v.  Pratt,   (Kans.)    67  Pac.  Rep.  464. 


638  MARKETABLE   TITLE   TO   REAL   ESTATE. 

It  has  been  held  that  the  purchaser,  in  a  case  in  which  the 
vendor  has  been  guilty  of  fraud,  may,  where  the  purchase  money 
paid  has  been  invested  by  the  vendor  in  the  funds  or  other  prop- 
erty so  that  it  may  be  traced,  follow  it  and  impress  it  with  a  trust.19 
The  decision  has  been  criticised  by  Sir  Edward  Sugden,  who  con- 
siders that  such  a  rule,  if  established,  would  lead  to  much  incon- 
venience.20 The  better  opinion  seems  to  be  that  the  purchaser 
cannot  follow  the  purchase  money  and  obtain  a  lien  upon  it  to  the 
exclusion  of  creditors  of  the  vendor,  or  others  having  equal  equities 
with  himself. 

The  purchaser  may  maintain  an  action  to  recover  back  the  pur- 
chase money  without  having  made  a  previous  demand  therefor,  if 
the  vendor  is  insisting  upon  a  specific  performance  of  the  contract. 
The  general  rule  is  that  no  formal  demand  is  necessary  where  the 
defendant  disputes  his  liability  to  refund.21 

The  right  of  the  purchaser  to  rescind  and  recover  his  deposit 
is  not  affected  by  the  fact  that  he  had  notice  of  the  defects  in  the 
title  when  the  contract  was  made.  He  has  a  right  to  expect  the 
removal  of  the  defects  by  the  vendor  before  the  time  fixed  for 
performance.*1 

An  action  at  law  to  recover  the  deposit  cannot  be  defeated  on 
the  ground  that  no  time  was  allowed  the  vendor  in  which  to 
perfect  the  title.  At  law,  time  is  of  the  essence  of  the  contract.23 

The  purchaser,  having  elected  to  rescind  and  having  recovered 
back  the  purchase  money,  cannot  thereafter  maintain  an  action 
against  the  vendor  to  recover  damages  for  the  loss  of  his  bargain.24 

§  238-a.  FORFEITURE  OF  DEPOSIT.  It  is  frequently  pro- 
vided in  contracts  of  sale  that  the  purchaser  shall  forfeit  his 
deposit  if  he  fails  to  comply  with  his  contract  within  a  specified 
time.  The  vendor  cannot  insist  upon  this  forfeiture  if  he  be 
unable  to  perform  the  contract,  on  his  part,  for  want  of  title.  In 

"Small  v.  Atwood,  Yo.  407.  In  this  ca«e,  however,  the  alleged  fraudulent 
representations  were  aa  to  the  quality  of  the  eatato. 

»1  Sugd.  Vend.  (9th  Am.  ed.)  393  (256). 

"  Jennem  v.  Spraker,  (Ind.  App.)  27  N.  E.  Rep.  117;  Toney  v.  Toney,  73 
Ind.  34;  Brown  v.  Harrison.  93  Ind.  142. 

•Bell  v.  Stadler,  31  Idaho,  568;   174  Par.  129. 

•Oroden  v.  Jacobean,  114  N.  Y.  Supp.  183;  12ft  App.  Div.  508. 

»Ant«,  |  1.     Whrte  v.  Harvey,  175  Iowa.  213;   157  N.  W.  162. 


RECOVER  OR  DETAIN  PURCHASE  MONEY  ON  FAILURE  OF  TITLE      639 

such  a  case,  there  is  a  complete  failure  of  the  consideration,  and 
the  vendor  has  no  more  right  to  keep  the  purchaser's  money  than 
he  would  have  to  compel  specific  performance  of  the  contract.25 

But  wan*t  of  title  in  the  vendor  will  not  prevent  a  forfeiture  of 
the  deposit  when  the  purchaser  well  knew  that  legal  proceedings 
would  be  necessary  to  en-able  the  vendor  to  perform  his  contract, 
as  where  the  interest  sold*  consisted  of  an  option  on  the  property 
of  a  widow  and-  minor  children,  which  could  be  made  effective 
only  by  proceedings  in  the  probate  court  to  authorize  the  sale.26 

§  239.  WHAT  ACTION  THE  PURCHASES  SHOULD  BRING. 
In  those  States  in  which  the  common-law  system  of  procedure  is 
retained,  if  the  purchaser  elects  to  disaffirm  or  rescind  the  contract 
by  proceeding  at  law  while  the  contract  is  yet  executory,  the 
proper  action  is  trespass  on  the  case  in  assumpsit,  counting  for 
money  had  and  received-  to  the  plaintiff's  use  and'  benefit.27  In 
this  ac/ion,  he  will  recover  merely  what  he  has  paid,  with  interest, 
including  the  deposit  made  at  the  time  of  the  s"ale,  which  is  con- 
sidered a  part  of  the  purchase  money,  and  cannot  recover  for 
expenses  incurred  in  examining  the  title,  nor  for  special  damages 
caused  by  the  vendor's  inability  to  perform  the  contract,  all  of 
which  must  be  sought  in  an  action  on  the  case  for  breach  of  con- 
tract or  for  deceit,  as  the  case  may  be.28  If,  however,  he  took 
from  the  vendor  a  bond  conditioned  to  make  title,  his  remedy  is  by 
action  of  covenant  on  the  bond.29 

The  remedy  at  law  to  recover  back  the  purchase  money  on 
failure  of  the  title,  where  the  contract  is  executory,  is  concurrent 
with  the  remedy  in  equity  for  rescission.  In  the  action  at  law, 
it  cannot  be  objected  that  the  plaintiff's  remedy  is  in  equity.30 

26  Ante,  §  88.  Platte  Land  Co.  v.  Hubbard,  12  Colo.  App.  465;  56  Pac.  Rep. 
64. 

28McAlpine  v.  Reichenecker,  56  Kans.  100;  42  Pac.  Rep.  339;  Carter  v. 
Fox,  11  Cal.  App.  07;  103  Pac.  910.  See,  also,  Vanity  Fair  Co.  v.  Hayes, 
31  R.  I.  77;  76  Atl.  771. 

"1  Sugd.  Vend.  (8th.  Am.  ed.)  35'7  (236).  In  the  States  where  the 
common  law  procedure  does'  not  obtain,  he  may  sue  for  money  had  and 
received  to  his  use.  MeDermott  v.  Chatfield,  18  Cal.  App.  499;  123  Pac,  539. 

84  Sugd.  Vend.   (8th  Am.  ed.)    357    (236). 

29  Post,  §  242.     Rounds  v.  Baxter,  4  Me.  454;   Green  v.  Green,  9  Cow.   (N. 
Y.)   46;  Char,les  v.  Dana,  14  Me.  383. 

30  Wright  v.  Dickinson,  67  Mich.  580.     This  was  an  action  to  recover  back 


640  MARKETABLE   TITLE   TO   REAL   ESTATE. 

§  240.  DETENTION  OF  THE  PURCHASE  MONEY.  The  pur- 
chaser may,  also,  while-  the  contract  is  executory,  resist  the  pay- 
ment of  purchase  money,  if  the  title  has  failed.31  This  right 

purchase  money  paid  on  an  executory  contract  for  the  sale  of  lands.  It  was 
objected  by  the  defendant  that,  as  the  purchaser  sought  a  rescission  of  the 
contract,  his  remedy  was  in  equity.  The  court,  however,  said  that  there  was 
no  occasion  to  call  for  the  interposition  of  a  court  of  equity.  There  were  no 
deeds  to  be  surrendered  up  and  canceled,  and  nothing  which  was  required  to 
be  perpetuated  by  a  decree.  All  there  was  to  be  ascertained  could  be  ascer- 
tained by  a  jury,  ami  that  was,  how  much  in  equity  and  good  conscience 
ought  the  vendors  to  repay  of  the  purchase  money  they  had  received.  All 
benefits  which  the  purcha-ser  had  received  would  have  to  be  deducted,  and 
those  could  be  ascertained  and  allowed  for  in  a  common-law  proceeding.  The 
value  of  the  timber  cut  and  removed,  and  all  other  benefits  which  the  pur- 
chaser derived  from  the  contracts,  could  be  adjusted  in  the  action. 

" Smith  v.  Pettus,  1  Stew.  &  Port.  (Ala.)  107;  Whitehurst  v.  Boyd,  8  Ala. 
375;  Pearson-  v.  Seay,  35  Ala.  612;  Sorrella  v.  McHenry,  38  Ark.  127.  Clark 
v.  Croft,  51  Ga,  36S;  Hall  v.  Mi-Arthur,  82  Ga,  572;  9  S.  E.  Rep.  534.  Greg- 
ory v.  Scott,  4  Scam.  (111.)  392;  Cunningham  v.  GwSnn,  4  Bh  (Ind.)  341; 
Fish  v.  West,  18  K,y.  Law  R.  144;  35  S.  W.  Rep.  624;  Dufief  v.  Boykin,  9 
La.  Ann.  295;  Wamsley  v.  Hunter,  29  La.  Ann.  628;  iBuchanan  v.  Lorman, 
3  Gill  (Md.),  51;  Dorsey  v.  Hobbs,  10-  Mkl.  412;  Pequea  v.  Mosby,  7  Sm.  & 
M.  (Miss.)  340:  Mobley  v.  Keyes,  13  Sm.  &  M.  (Mass.)  677;  Barton  v.  Rec- 
tor, 2  Mo.  524;  Wellman.v.  Dismukes,  42  Mo.  101;  Earl  v.  Campbell,  14 
How.  Pr.  (Jf.  Y.)  330.  This,  however,  was  a  suit  to  compel  the  purchaser 
to  accept  a  deed  and  pay  the  purchase  money.  Welch  v.  Watkins,  1  Hayw. 
(N.  C.)  369;  St<xldart  v.  Smith,  5  Binney  (Pa.),  365;  Poke  v.  Kelly,  13 
S.  ft  R,  (Pa.)  260;  Withers  v.  Baird,  7  Watts  (Pa.),  227;  32  Am.  Dec,  754; 
Colwell  v.  Hamilton,  10  Watts  (Pa,),  413;  Cans  v.  Renshaw,  2  Pa.  St.  34; 
44  Am.  Dec.  152;  Puckett  v.  McDonald,  58  Tenn:  395;  West  v.  Shaw,  32  W. 
Va.  Ift5;  9  S.  E.  Rep.  81.  In  Rhodes  v.  Wilaon,  12  Colo.  05;  20  Pac,  Rep. 
74C.  it  was  held  that  in  an  tret  ion  on  a  note  for  the  purchase,  money  of  land, 
an  answer  Betting  up  failure  of  title  and  inability  «>f  the  vendor  to  convey, 
presented  a  legal,  and  not  an  equitable  defense.  It  would  scorn  that  this 
olmervation  of  the  court  rmist  !•<•  taken  with  the  qualification  that  the  plea 
in  n -^  show  a  clear  failure  of  title,  and  not  merely  a  doubtful  title,  in  order 
to  have  that  effect.  If  the  plea  avers  facts  rendering  the  title  merely  doubt- 
ful, the  authorit  if*  conclusively  Know  that  the  defense  is  equitable  and  not 
legal.  In  an  action  to  recover  the  purchase  money  of  land,  a  plea  that  the 
deed  tendered  by  the  vendor  was  insufficient  for  lack  of  a  proper  description 
of  the  premises,  but  which  fails  to  show  wherein  the  description  is  defective 
or  uncertain,  is  bad.  Pettys  v.  Marsh.  (Fl«.)  3  So.  Rep.  577.  The  cases  in 
the  Knglj*h  report*  involving  the  right  of  the  purchaser  to  set  up  the  defense 
of  failure  of  title  in  an  action  for  the  purchase  money,  are  few  compared 
with  those  in  which  the  purchaser  «*eeks  to  recover  Iwck  the  purchase  money 
on  the  name  ground,  and  these  latter  consist  chiefly  of  actions  to  recover 
back  the  earnest  monay,  or  deposit  made  with  the  auctioneer.  The  causes 


BECOVEE  OB  DETAIL  PUBCHASE  MONEY  OX  FAILUEE  OF  TITLE       641 

depends  upon  the  same  principles  upon  which  he  is  allowed  to 
recover  back  the  purchase  money  in  a  like  case,  and  is  subject  to 
the  same  exceptions.  Accordingly  it  seems  that  wherever  the  pur- 
chaser might  recover  back  the  purchase  money  for  defect  of  title, 
he  may  detain  the  same  in  an  action  against  him  by  the  vendor,32 
and  this  to  prevent  circuity  of  action,  for  there  would  be  no  reason 
in  requiring  the  defendant  to  pay  over  that  which  he  could  imme- 
diately recover  back  from  the  plaintiff.  An  action  for  the  pur- 
chase money  of  land  is,  in  legal  effect,  a  petition  or  bill  for  specific 
performance  of  the  contract  of  purchase,  and  is  governed  by  the 
same  equitable  principles.33  The  purchaser  cannot  be  compelled 
to  pay  the  purchase  money  if,  by  reason  of  the  fraudulent  repre- 
sentation of  the  vendor  with  respect  to  the  title,  he  was  induced 
to  agree  to  accept  a  quit-claim  conyeyance  of  the  land.34  The  fact 
that  a  note  for  the  purchase  money  of  land  was  executed  to  the 
vendor,30  or  to  a  third  party  at  the  request  of  the  vendor,  does  not 
affect  the  right  of  the  purchaser  to  detain  the  purchase  money  on 
failure  of  the  title.38  Neither  is  that  right  affected  by  the  purpose 
for  which  he  bought  the  premises,  though  such  purposes  may  have 
been  dishonest  or  improper.37  Contracts  for  the  sale  of  real  estate 
frequently  provide  that  the  deposit  or  cash  payment  made  by  the 
purchaser  shall  be  forfeited  unless  he  makes  prompt  payment  of 
the  deferred  installments  of  the  purchase  money.  But  under  such 
a  provision  a  forfeiture  cannot  be  declared  where  the  purchaser 
declines  to  pay  the  purchase  money  until  the  vendor  removes  an 
incumbrance  from  the  premises,  or  cures  a  defect  in  the  title.38 
A  provision  in  the  agreement  that  the  purchaser  shall  pay  dam- 

of  this  disparity  probably  are  that  owing  to  the  English  practice  of  carefully 
examining  the  title  few  contracts  proceeded  further  than  the  payment  of 
the  earnest  money,  if  the  title  was  bad,  and  that  if  the  purchaser  took 
possession  and  paid  the  purchase  money,  without  examining  the  title,  he 
would  there  be  deemed  to  have  waived  his  objections  to  the  title. 

32  Billiard  on  Vend.  71. 

83  Black  v.  Am.  International  Corp.,  264  Pa,  260;  107  Atl.  737. 

31  Hayes  v.  Bonner,  14  Tex.  629. 

33Piatt  v.  Trimby,   155  111.  App.  29'. 

38  Crawford  v.  Keebler,  5  Lea  (Tenn.),  547. 

27  Hollenburgh  v.  Morrison,  9  Watts    (Pa.),  408. 

38  Wallace  v.  McLaughlin,  57  111.  53. 

81 


642  MARKETABLE  TITLE   TO   HEAL   ESTATE. 

ages  in  case  of  a  breach  of  the  contract  by  him,  does  not  take 
away  the  right  of  the  vendor  to  sue  for  the  unpaid  purchase 
money.19 

As  between  vendor  and  purchaser  there  is  no  obligation  upon 
the  latter  to  record  the  contract  of  sale  under  which  he  holds. 
Therefore,  where,  for  want  of  such  record,  the  premises  are  sub- 
jected in  the  hands  of  the  purchaser  to  the  payment  of  claims 
against  the  vendor,  the  purchaser,  having  lost  the  estate,  is  none 
the  less  entitled  to  detain  the  unpaid  purchase  money.40 

In  such  a  suit,  the  court  may  provide  for  the  application  of 
the' purchase  money  to  the  payment  of  liens  upon  the  land.41 

§  241.  EXCEPTIONS  AND  QUALIFICATIONS.  The  principal 
qualifications  of  the  rule  that  the  purchaser  may  recover  back 
or  detain  the  purchase  money  on  failure  of  the  title  hereinbefore 
stated,  are,  that  the  right  does  not  exist  where  the  purchaser  has 
waived  his  objections  to  the  title,41*  where  the  vendor  has  a  right 
to  perfect  the  title,42  or  to  require  the  purchaser  to  take  the  title 
with  compensation,  or  abatement  of  the  purchase  money,  in  case  of 
trifling  deficiencies  and  incumbrances,43  and  where  the  purchaser 
refuses  or  neglects  to  restore  the  possession  to  the  vendor  and  to 
place  him  substantially  in  the  same  condition  in  which  he  was 
before  the  contract  was  made.44  It  has  been  held  that  an  agree- 
ment to  convey  to  the  purchaser  in  fee  simple  does  not  entitle  him 
to  rescind  the  contract  and  recover  back  the  purchase  money  on 
the  ground  that  there  are  incumbrances  on  the  property.4"  This 
is  a  narrow  interpretation  of  such  an  agreement  and  is  not  sup- 
ported, it  is  believed,  l»y  the  weight  of  authority,46  except  in  those 

"Boyd  v.  Hoffman,  341   Par.  421;  88  Atl.  675. 

«•  Daniel  v.  Baxter,  1  Lea    (Tonn.),  630. 

"Burnett  v.  Sulflmv,  134  Minn.  407;  159  N.  W.  951. 

«*«Ante.  oh.  8. 

"Post,  8  325.    The  purchaser  cannot  rex-over  his  deposit  where  the  vendor 
promptly  removes  the  ol)j<-i  (inns  to  the  title  pointed  out  hy  the  purchaser, 
v.  !.<*•.  :,«;  Wa-h.  2.V!:  105  Pac.  460. 

-Post,  i  308. 

44  Pc*t,  {  256,  et  scq. 

!!.-r   r.  llubk.r.l.  r,  C«r,    (N*.  V.)    13;    16  Am.  Dec.  423. 

-In  Lewi*  v.  White.  It;  (>lii<>  Eft,  HI.  it  \vn-  held  that  under  an  agreement 
by  which  he  wan  t.  i  ••  JUT  feet  title,"  the  purchaser  mipht  rescind 

the  contract  if  the  premises  \\.  re  im-umWed. 


RECOVER  OR  DETAIN  PURCHASE  MOXEY  OX  FAILURE  OF  TITLE       64:3 

cases  in  which  the  purchase  money  can  be  applied  to  the  discharge 
of  the  incumbrance. 

In  the  English  practice  it  has  been  held  that  a  purchaser  cannot, 
at  the  trial  of  an  action  to  recover  his  deposit,  insist  upon  an 
objection  to  the  title  which  he  did  not  raise  at  the  time  he  refused 
to  complete  the  contract;  provided  the  objection  be  of  such  a 
nature  that  if  then  stated  it  could  have  been  removed.47  This 
decision  has  been  cited  approvingly  in  a  recent  American  case,  in 
which  it  was  held  that  it  was  incumbent  on  a  purchaser,  assuming 
to  examine  the  title,  to  make  a  complete,  examination,  and  that  in 
an  action  to  recover  the  deposit  he  would  be  limited  to  the  defects 
pointed  out  when  he  rejected  the  title.48  It  has  been  held  that  a 
purchaser  assenting  to  an  assignment  of  the  contract  by  the  vendor 
cannot,  on  failure  of  the  title,  in  the  absence  of  fraud  by  the 
assignee,  recover  back  payments  of  the  purchase  money  made  to 
him,  though  all  parties  at  the  time  of  the  assignment  were  ignorant 
that  the  title  was  bad.  The  assignee  is  in  no  way  responsible  for 
the  validity  of  the  title,  and  the  purchaser  takes  the  risk  incurred 
by  making  payments  to  one  from  whom  they  cannot  be  recovered 
back.49 

*7Todd  v.  Hoggart,  Moo.  &  M.  123.     Chitty.  Cont.   (10th  Am.  ed.)   337. 

^Easton  v.  Montgomery,  90  Cal,  313;  27  Pac.  Rep.  280.  There  are  dicta 
in  this  decision  from  which  it  might  be  inferred  that  a  vendor  negligently 
omitting  an  examination  of  the  title,  would  thereby  lose  his  -right  to  rescind 
the  contract  and  recover  back  the  purchase  money,  if  the  title  failed'  from 
causes  that  an  examination  would  have  disclosed.  In  Soper  v.  Arnold,  L.  R., 
14  App.  Cas.  429,  it  was  held  that  a  purchaser  having  accepted  the  title 
shown  by  the  abstract  and  forfeited  his  deposit  by  failing  to  comply  with  the 
contract,  cannot,  on  a  decision  in  favor  of  the  second  purchaser  that  the  title 
was  bad  by  reason  of  a  defect  appearing  on  the  face  of  the  same  abstract, 
recover  his  deposit  on  the  ground  of  mutual  mistake  and  failure  of  considera- 
tion. 

49Youma.ns  v.  Edgerton,  91  N".  Y.  403,  disapproving  Smith  v.  MteCluskey, 
45  Barb.  (N.  Y.)  610.  The  court  observed  that  the  assignment  did  not,  nor 
did  it  purport  to,  transfer  any  right  in  the  land,  or  impose  upon  him  any 
obligation.  It  was  a  mere  authority  to  receive  the  moneys  called  for  by  its 
terms  and  apply  them  to  his  own  use.  With  notice  of  this  limitation,  the 
party  paying  the  money  is  chargeable.  The  purchaser's  case  is,  therefore, 
not  different  from  what  it  would  have  been  if,  as  each  payment  became  due, 
the  vendor  had  given  an  order  for  value  on  the  vendee  to  pay  the  same  to 
the  assignee,  or  an  assignment  in  form  of  each  separate  installment.  In 


G44  MARKETABLE   TITLE   TO   HEAL,   ESTATE. 

The  right  to  resist  the  payment  of  the  purchase  money  for  defect 
of  title  is  personal  to  the  vendee.  Therefore,  if  the  vendee  execute 
a  note  for  the  purchase  money  with  sureties,  the  latter  cannot,  in 
an  action  on  the  note,  set  up  the  plaintiff's  want  of  title  as  a 
defense.50  This  is  a  mere  application  of  the  principle  that  a 
surety  cannot,  as  a  general  rule,  avail  himself  of  his  principal's 
right  of  set-off,  recoupment  or  counterclaim.01 

§  242.  WHAT  OBJECTIONS  TO  THE  TITLE  MAY  BE  MADE  IN 
ACTIONS  FOB  THE  PURCHASE  MONEY.  As  a  general  rule  the 
purchaser  may  show  in  the  defense  of  an  action  for  the  purchase 
money,  while  the  contract  is  executory,  any  matter  of  law  or  fact 
which  invalidates  or  renders  unmarketable  the  title  of  his  vendor. 
These  may  be  classified  as  defects  which  appear  on  the  face  of 
the  instruments  under  which  the  vendor  claims  title,  such  as  the 
absence  of  words  of  conveyance;  defects  which  appear  from  the 
public  records,  such  as  prior  conveyances  by  the  vendor,  mort- 
gages, judgments,  etc.,  and  defects  in  pais,  or  those  to  be  estab- 
lished by  the  testimony  of  witnesses,  such  as  want  of  hcirship, 
personal  disability  of  a  grantor  in  the  chain  of  title,  etc.  A  fur- 
ther classification  of  the  principal  sources  or  grounds  of  objection 
to  the  titlo  may  be  seen  in  a  preceding  part  of  this  work.52  At  one 
time  it  was  held  that  the  objection  that  the  title  was  doubtful  or 
unmarketable  could  not  be  availed  of  at  law,  all  titles  at  law  being 
regarded  either  as  good  or  absolutely  bad,  and  the  doctrine  of 
unmarketable  titles  being  cognizable  only  in  a  court  of  equity, 
lint  now  the  objection  that  the  title  is  not  such  as  the  purchaser 
could  be  requirqd  to  take  upon  a  bill  for  specific  performance, 
may  be  made  at  law  as  freely  as  in  equity.53 

neither  case  eouloV  the  debtor,  if  he  accepted  the  order  or  assented  to  the 
a«-sipnment,  «et  up  in  defense  of  payment  nny  equity  between  himself  and  the 
a*«ipnor,  nor  after  payment  recover  back  the  money  upon  allowing  even  such 
equity  ;i-  would  have  been  a  defense  n»  between  himself  and  the  assignor. 

~2  Fantons  B.  &  X.  538,  C37.  Lewis  v.  MrMillen,  41  Barb.  (X.  Y.)  431, 
filing  ftilkwpie  v.  Torranee,  25  X.  Y.  30ft;  82  Am.  Dec.  355;  Webb  v.  Spieer, 
13  Q.  B.  8S6;  Salmon  v.  Webb.  1ft  Eng.  L.  &  Eq.  37. 

"'  There  in.  however,  a  conflict  of  authority  on  thiH  point.  Brandt  on 
Suretyship,  I  208;  24  Am.  &  Knp.  Kncyc.  of  Law,  790, 

"Ante.  I  77,  el  *eq. 

"Pout.  |  286.     Sachs  v.  Owing.-.   121  Va.  102;  92  8.  E.  997. 


BECOVEE  OR  DETAIN  PUECHASE  MONEY  ON  FAILURE  OF  TITLE       643 

§  243.  EXPENSES  OF  EXAMINING  THE  TITLE.  In  those  States 
in  which  the  distinction  between  trespass  on  the  case  and  trespass 
on  the  case  in  assumpsit  is  still  observed,  the  purchaser  cannot,  on 
the  count  for  money  had  and  received  to  his  use,  recover  expenses 
incurred  by  him  in  examining  the  title,  or  in  fact  any  items  of 
expense  or  damage  growing  out  of  the  failure  of  the  title,  because 
the  right  to  recover  any  such  items  depends  upon  contract,  and  the 
count  for  money  had  and  received  disaffirms  the  contract.54  In  a 
State  in  which  a  system  of  "  Code  procedure  "  has  been  adopted, 
the  purchaser  was  allowed  the  expenses  of  examining  the  title  in 
an  action  to  recover  back  the  purchase  money.55 

§  243-a.  INTEREST  ON  DEPOSIT.  As  a  general  rule,  the 
purchaser  is  entitled  to  recover  interest  on  his  deposit  from  the 
time  that  he  rejected  the  title  and  demanded  the  return  of  the 
deposit.56  But,  under  the  particular  circumstances  of  the  case, 
he  has  been  allowed  interest  only  from  the  commencement  of  his 
suit  to  recover  the  deposit.57 

§244.  BURDEN  OF  PROOF  LIES  ON  PURCHASER.  MISCEL- 
LANEOUS RULES.  If  the  purchaser  seeks  to  detain  or  to  recover 
back  the  purchase  money  on  the  ground  of  want  of  title  in  the 

64  Ante,  §  93."  1  Sugd.  Vend.  (8th  Am.  ed.)  547  (362)  ;  Chitty  Cont.  (10th 
Am.  ed.)  339;  Canfieltf  v.  Gilbert,  4  Esp.  221;  Go&bell  v.  Archer,  4  Xev.  & 
Man.  485;  Walker  v.  Constable,  1  Bos.  &  Pul.  306- ;  Mangonaro  v.  Karl,  84 
X.  J.  L.  408;  87  AtL  94. 

65Wetmore  v.  Bmce,  118  X.  Y.  320;  23  X.  E.  Rep.  303;  Elfenheim  v.  Von 
Hafen,  23  X.  Y.  Supp.  348;. Lowe  v.  Molter,  (R.  I.)  71  Atl.  592;  Rose  v. 
Adler,  147  X.  Y.  Supp.  307;  Maupai  v.  Jacobs,  124  X.  Y.  Supp.  220;  139 
App.  Div.  524,  where  held,  also,  that  he  was  entitled  to  recover  the  expense 
of  employing  an  attorney,  in  addition  to  a  title  company,  to  examine  the 
title.  If  the  title  be  found  to  be  good-  'but  specific  performance  by  the 
vendor  impracticable,  the  purchaser  will  not  be  allowed  the  expenses  of 
examining  the  title.  Brody  &  Co.  v.  Hochstadter,  144  X.  Y.  Supp.  631 ;  160 
App.  Div.  3'10.  He  is  not  entitled  to  recover  for  expenditures  on  the  property 
while  uncertain  about  the  title.  Prentice  v.  Townsend,  127  X.  Y.  Supp. 
1066;  143  App.  Div.  151. 

56  Turner  v.  Reynolds,  81  Cal.  214;  22  Pac.  546;  Hayt  r.  Bental,  164  CaL 
680;  130  Pac.  432;  Anderson  v.  Ohnoutka,  84  Xeb.  517;  121  X.  W.  577;  39 
Cyc.  2074;  48  Cent.  Dig.  Vend.  &  Purch.  §  1017.  The  vendor  has  his  counter- 
claim for  the  use  and1  occupation  if  the  purchaser  was  put  in  possession. 
Post,  §  257. 

"Donovan  v.  Hoenig,  157  Wis.  250;   146  X.  W.  1125. 


(>46  MARKETABLE   TITLE   TO   REAL   ESTATE. 

vendor,  the  burden  will  be  on  him  to  show  defects  in  the  title.6* 
An  agreement  by  the  vendor  to  execute  to  the  purchaser  "  a  good 
and  sufficient  warranty  deed"  does  not  impose  on  the  vendor  the 
burden  of  showing  a  clear  title  in  such  an  action.09  But  if  the 
purchaser  produces  an  original  abstract  of  title  showing  a  defect 
of  title  in  the  vendor  a  prima  facie  case  is  established  against  the 
latter,  putting  him  to  proof  of  a  better  title.60 

Miscellaneous  rules.  Of  course,  if  the  vendor  disable  himself 
from  performing  his  contract  by  conveying  the  land  to  a  third 
party,  the  purchaser  may  bring  an  action  to  recover  back  the  pur- 
chase money  paid  instead  of  seeking  damages  for  the  violation  of 
the  contract.61  But  if  the  purchaser  rejects  a  good  and  market- 
able title  when  tendered,  and  the  vendor  has  waived  none  of  his 
rights  and  left  no  part  of  the  contract  open,  the  purchaser  cannot 
recover  back  his  deposit  on  the  ground  that  the  vendor  after  the 
rejection  of  the  title  had  conveyed  the  land  to  a  third  person.62 

"Poet,  &  281.  Dwight  v.  Cutler,  3  M'ich.  666;  64  Am.  Dec.  106;  Allen 
v.  Atkinson,  21  Mich.  361 ;  Sawyer  v.  Sledge,  55  Ga,  152:  Cantrell  v.  Mobb, 
43  Ga.  193;  Bolfcon  v.  Branch,  22  Ark.  435;  Reynolds  v.  White,  118  X.  Y. 
Supp.  979;  134  App.  Div.  248;  S.  C.  129  X.  Y.  Supp.  52»;  143  App.  Div. 
•)05;  Barde*  v.  Herman,  125)  X.  Y.  Supp.  723;  144  App.  Div.  772;  Talifer 
Co.  v.  Falk,  173  X.  Y.  Supp.  251 ;  105  Misc.  Rep.  6.  Purchaser  refusing  to 
take  the  title,  must  point  out  and:  prove  the  defects.  Baecht  v.  Hevesy,  101 
X.  Y.  Supp.  413;  115  App.  Div.  509. 

"Baxter  v.  Aubrey,  41  Mich.  13,  COOLEY,  J.,  saying:  "The  contract  obli- 
gated the  vendor  when  the  purchase  price  was  paid  to  '  execute  and  deliver  ' 
t<>  the  vendeo  'a  good  and  sufficient  warranty  deed.'  Baxter  (the  purchaser) 
claimed  that  this  means  a  warranty  deed  conveying  title  to  the  land,  and 
that  it  was  not  enough  for  the  vendor  to  tender  a  deed  sufficient  in  form, 
luit  she  must  go  further  and  show  that  she  had  at  the  time  a  title  which 
the  deed  would  convey.  We  think,  however,  if  the  vendee  accept*  a  contract 
in  which  the  ownership  of  the  vendor  is  assumed,  and  agrees  to  pay  for  the 
land  without  requiring  the  vendor  to  produce  evidence  of  his  title,  the 
burden  will  l*>  upon  him  to  show  defects.  The  presumption  will  be,  in  the 
absence  of  any  showing,  that  he  satisfied  himscH  respecting  the  title  when 
he  made  his  bargain." 

•"Hurt ley  v.  James,  50  X.  Y.  41;  Kane  v.  Rippy,  22  Oreg.  296,  23  Pac. 
Rep.  1*0.  In  an  action  of  covenant  to  recover  the  purchase  money  a  plea 
of  covenants  performed,  abaquc  hoc,  etc.,  does  not  put  the  plaintiff's  title 
in  itwuo  and  impose  on  him  the  burden  of  showing  that  his  title  is  good. 
Hite  v.  Kier,  38  Pa.  St.  72. 

"Burley  v.  Shinn,  1  Xeb.  433;  Gwin  v.  Calegaris,  139  Cal.  384,  73 
Pac.  851. 

•  Beyer  v.  Braender,  67  X.  Y.  Super.  Ct.  429. 


EECOVEK  OK  DETAIN  PURCHASE  MONEY  ON  FAILURE  OF  TITLE       647 

If  the  purchaser  demands  such  a  deed  as  the  contract  entitles 
him  to  receive,  and  the  vendor  refuses  to  give  it,  but  insists  on 
the  acceptance  of  a  different  and  inferior  title,  the  contract  may 
be  regarded  as  broken,  and  the  purchaser  may  sue  at  once  and 
recover  back  whatever  purchase  money  he  has  paid.63 

The  purchaser  cannot  recover  back  the  purchase  money  nor 
detain  that  which  is  unpaid  on  failure  of  the  title,  in  any  case  in 
which  the  rule  caveat  emptor  applies;  e.  g.,  sales  by  adminis- 
trators, sheriffs,  officers  of  a  court,  and  other  judicial  and  quasi- 
judicial  sales.64  This  rule  of  course  does  not  apply  where  the 
question  is  only  as  to  the  validity  or  legality  of  the  sale.86 

The  purchaser  may  not  only  recover  back  his  deposit  where 
there  is  a  palpable  failure  of  the  title,  but  he  is  entitled  to  that 
privilege  if  the  vendor  fail  to  produce  a  marketable  title,  or  one 
that  is  free  from  reasonable  doubt.  What  is  sufficient  to  render  a 
title  unmarketable  will  be  elsewhere  considered.66  If  the  vendor's 
abstract  shows  a  bad  title,  the  purchaser  can  maintain  an  action 
to  recover  back  his  deposit  without  offering  to  complete  the  con- 
tract and  demanding  a  conveyance.67 

If  the  vendor  be  unable  to  perform  his  contract  for  want  of 
title,  the  purchase  money  may  be  recovered  back  though  the  con- 
tract was  void,  as  where  it  was  within  the  Statute  of  Frauds. 
The  defendant  holds  the  money  without  consideration  and  is 
bound  to  return  it.68 

63  Shrove   v.   Webb,    1    Term,   732;    Reddington   v.    Henry,   48   N".   H.   279; 
Little  v.   Paddleford,    13  N.  H.    167;    Foote  v.  West,   1   Den.    (N.   Y.)    544; 
Camp  v.  Morse,  5  Den.   (N".  Y.)   161;  Laurence  v.  Taylor,  5  Hill   (N.  Y.),  107. 
In  Wilson  v.  Getty,  57  Pa.  St.  266,  the  purchase  money  had  been  deposited 
in  bank  "  to  be  paid  over  as  soon  as  counsel  for  the  parties  pronounced  the 
deed   to    be   complete   and    perfect."      Counsel    having   pronounced    the   deed 
tendered   to   be    insufficient    (the    title    not   being   good)     it   was    held    that 
the  purchaser  might  immediately  recover  the  deposit.     This,  however,  was 
a  suit  in  equity  instead  of  an  action  at  law,  but  the  principle  is  the  same  in 
either  case. 

64  Rorer  on  Jud.  Sales,  §  458.    Ellis  v.  Anderton,  88  N.  C.  472,  distinguish- 
ing Shields  v.  Allen,  77  N.  C.  375. 

"•"  See  Shipp  v.  Wheless,  33:  Miss.  646. 
"Post,  oh.  31. 

87 1  Sugd.  Vend.    (8th  Am.  ed.)   368   (241). 

"Gosibell  v.  Archer,  4  Nev.  &  Mann.  485;  Adams  v.  Fairbain,  2  Stark.  277; 
Gillett  v.  Maynard,  5  Johns.  (N.  Y.)  815,  4  Am.  Dec.  329.  Here,  however,  the 


648  MARKETABLE   TITLE   TO   REAL   ESTATE. 

The  purchase  money  may,  on  failure  of  title,  be  recovered  by  the 
purchaser  virtually  in  other  forms  of  proceeding:  than-  the  action 
for  money  had  and  received.  Thus,  in  an  action  for  breach  of  the 
contract  or  for  breach  of  covenant,  the  damages  are,  as  a  general 
rule,  measured  by  the  consideration  money  and  interest.  And  in 
equity  upon  a  rescission  of  the  contract,  the  court  decrees  a  return 
of  the  purchase  money  to  the  purchaser. 

In  the  action  for  money  had  and  received  to  his  use,  disaffirming 
the  contract  on  failure  of  the  title,  the  purchaser  cannot  recover 
more  than  the  money  paid,  though  the  estate  has  risen  in  value.*9 
The  rule  is  the  same,  however,  in  an  action-  for  damages  unless 
the  vendor  was  guilty  of  fraud.70 

§245.  BIGHT  TO  RESCIND  WHEN  THE  ESTATE  IS  INCUM- 
BEBED.  In  many  cases  the  purchaser  may  rescind  the  contract 
and  recover  back  or  detain  the  purchase  money,  if  the  estate  is 
incumbered.71  Where  an  incumbrance  is  discovered  previously  to 
the  execution  of  the  conveyance  and  payment  of  the  purchase 

vendor  merely  refused  to  convey.  Buck  v.  Waddle,  1  Ohio,  357;  Thompson 
v.  Gould,  20  Pick.  (Maas.)  134,  semble.  Flinn  v.  Barber,  64  Ala.  193;  Collins 
v.  Thayer,  74  111.  138. 

•1  Sugd.  Vend-.  358;  Dutch  v.  Warren,  2  Burr.  1010;  Dale  v.  SoUett,  4 
Burr.  2133. 

"Ante,  85  91,  101. 

n  See  ck  31,  5  804,  et  scq.  Parsons  v.  Kelso,  141  Mo.  'A pp.  369,  125  S.  W. 
227.  The  existence  of  a  recorded  mortgage  on  the  property  makes  the  title 
unmarketable  and  entitles  the  purchaser  to  a  return  of  hia  deposit,  though 
Huch  mortgage  he  voidable  because  not  recorded  until  after  the  recording  of 
a  subsequent  conveyance  by  the  mortgagor.  Rose  v.  Adler,  147  N.  Y.  Supp. 
907.  Where  the  contract  was  that  the  purchaser  should  have  a  fee-simple 
title  free  and  clear  of  all  taxes,  mortgages,  or  other  liens,  the  purchiuer 
could  not  be  required  to  take  the  property  tiubject  to  the  right  of  a  stranger 
to  eirtiMtruct  an  irrigation  ditch  through  it.  Wingard  v.  Copeland,  (>4  Wash. 
214,  11G  I'm-.  670.  A  restriction  which  prevents  the  purchaser  from  using 
a  portion  of  the  frontage  of  the  premises  otherwise  than  for  a  court  yard 
fa  an  incumbrance  entitling  him  to  rescind  t'.u-  contract  and  recover  baok 
his  deposit,  Wetmore  v.  Bruce.  54  N".  Y.  Super.  Ct.  149;  affd.,  M8  N.  Y. 
319,  23  N.  E.  Rep.  303,  citing  Trustees  v.  Lynch,  70  N.  Y.  440,  26  Am.  Rep. 
615.  nnd  di*tingu Miring  Riggs  v.  Pitrsell,  66  N.  Y.  199.  In  Colorado  it  has 
been  held  that  an  irrigation  contract  is  not  appurtenant  to  the  lands  irri- 
guted,  and  that  if  a  vendee  of  -m-h  lands  pays  a  Imlance  due  on  such  a  con- 
tract under  which  the  land  was  to  be  irrigated  for  a  term  of  years,  he 
cannot  look  t«i  riie  vendor  to  reimburse  him.  Chamberlain  v.  Amtur,  (Colo.) 
£7  Pac.  Rep,  87. 


RECOVER  OR  DETAIN  PURCHASE  MONEY  ON  FAILURE  OF  TITLE       649 

money,  the  vendor  must  discharge  it  whether  he  has  or  has  not 
agreed  to  covenant  against  incumbrances,  before  he  can  compel 
'  payment  of  the  purchase  money.72  The  mere  existence  of  an 
incumbrance  on  the*  premises  on  the  day  fixed  for  completing  the 
contract,  is  no  breach  by  the  vendor  if  he  be  then  prepared  to 
remove  the  incumbrance,73  and  if  the  holder  of  the  incumbrance 
will  accept  payment  of  the  same  before  maturity.74  But  if  the 
purchaser  then  makes  a  tender  and  demands  performance,  and 
the  vendor  fails  to  remove  the  incumbrance,  or  provide  for  its 
removal  to  the  satisfaction  of«the  purchaser,  the  latter  may  rescind 
and  recover  his  deposit.75 

The  question,  what  is  an  incumbrance,  and  under  what  circum- 
stances the  purchaser  may.  because  of  its  existence,  refuse  to  pro- 
ceed with  the  contract,  is  considered  elsewhere  in  this  work.76 
Little  difficulty  is  experienced  in  determining  what  is  a  pecuniary 
incumbrance,  except  in  the  case  of  undetermined-  and  inchoate 
liabilities  affecting  the  premises  at  the  time  of  the  contract,  such 
as  taxes  and  essessments.  We  have  seen  under  what  circumstances 
taxes  and  assessments  upon  the  warranted  premises  will  be  deemed 
a  breach  of  the  covenant  against  incumbrances.77  Where  the  con- 
tract is  executory,  the  purchaser  is  in  equity  regarded  as  the 
owner  of  the  estate,  and  must  pay  the  taxes  accruing  between  the 
making  of  the  contract  and  the  execution,  of  the  conveyance,  unless 
the  parties  have  entered  into  some  special  agreement  respecting 
the  taxes.78  In  a  case  in  which  the  contract  provided  that  the 

72  2  Sugd.  Vend.  (8th  Am.  ed.)  192;  Glassman  v.  Condon,  27  Utah  463, 
76  Pac.  343l 

"Higgins  v.  Eagleton,  155  X.  Y.  466,  50  N.  E.  Rep.  287;  Lamb"  v.  De  Vault, 
139  111.  App.  398. 

74  Pioneer  Min.  Co.  v.  Price,  189  Mo.  App.  30,  176  S.  W.  474. 

75Raben  v.  Risnikoff,  88  N".  Y.  Supp.  470,  95  App.  Div.  6-8;  Ross  v.  Haynes, 
(Tex.  Civ.  App.)  196  S.  W.  364. 

79  Post,  §  304,  et  seq.,  ch.  31.     See,  also,  ante,  §  123. 

"  Ante,  §  124.  "  Taxes  "  include  special  assessments.  Giles  v.  Peo.  Nat. 
Bank,  198  111.  307,  65  N.  E.  Rep.  1060;  Williams  v.  Monk,  179  Mass.  22,  60 
N.  E.  Rep.  394. 

T8Furber  v.  Purdy,  69  Mo.  601;  Sherman  v.  Savery,  2  Fed.  Fep.  505;  Gary 
v.  Gundlefinger,  (Ind.)  40  N.  E.  Rep.  1112;  Williamson  v.  Neeves,  94 
Wis.  656,  69  N".  W.  Rep.  806;  Glinton  v.  S'lvugart,  126  Iowa,  179,  101  1ST.  W. 
Rep.  7-85;  Swanston  v.  Clark,  153  Cal.  300,  95  Pac.  1117.  The  liability  of 

82 


650  MARKETABLE   TITLE   TO   REAL   ESTATE. 

purchaser  should  pay  the  taxes  accruing  between  the  making  of 
the  contract  and  the  execution  of  a  conveyance,  the  purchaser  was 
held  entitled  to  recover  the  taxes  so  paid  by  him,  upon  the  inability 
of  the  vendor  to  convey  for  want  of  title.79  Where  the  contract  is 
made  after  the  completion  of  a  public  improvement,  but  before 
the.  imposition  of  an  assessment  therefor,  the  purchaser  must  pro- 
tect himself  by  provision  in  the  contract.80  Where  the  contract 
requires  the  vendor  to  pay  existing  taxes,  he  must  pay  a  special 
assessment  which  was  a  lien  on  the  land  at  the  time  of  the  contract 
though  not  then  payable.81  A  tax  sale  of  the  premises  made  prior 
to  the  contract  of  sale,  is  an  incumbrance  which  the  purchaser 
must  remove.82 

As  a  general  rule  the  purchaser  cannot  rescind  the  contract  on 
the  ground  that  the  title  is  incumbered  if  he  can  apply  the  pur- 
chase money  to  the  removal  of  the  incumbrance.83  If  he  pays  the 
purchase  money  in  ignorance  of  the  incumbrance,  he  may  recover 
it  back,  and  in  an  action  for  that  purpose  it  is  not  necessary  for 
him  to  go  behind  the  record  and  show  that  the  incumbrance  has 

the  parties  for  taxes  is  fixed  by  statute  in  a  niuulwr  <»f  the  States.  Thus,  in 
Nebraska  a  vendor  who  sells  after  April  first  is  liable  for  the  taxes  of  that 
year.  Campbell  v.  MeClure,  (Neb.)  63  N.  W.  Rep.  926.  In  a  ease  in 
Michigan  in  which  the  lands  sold  were  wild-  and  uncultivated,  and  the  pur- 
chaser did  not  take  actual  possession,  it  was  held  that  the  taxes  for  the 
current  year  should  l>e  divided  equally  lietween  the  purchaser  and  the  seller. 
Thompson  v.  Noble,  108  Mich.  26,  65  N.  W.  Rep.  746. 

"Missouri  K.  &  T.  R.  Co.  v.  Pratt  (Kans.).  67  Pae.  Rep.  464. 

••  People  v.  Gilon,  9  N.  Y.  Supp.  212,  Ante,  §  124.  So,  also,  where  the 
improvement  was  put  upon  the  property  after  the  price  was  agreed  upon  by 
the  pactiesv.  Charbonier  v.  Arbona,  68  Fla,  194,  67  So.  4i. 

"Otto  v.  Young,  227  Mo.  193,  127  S.  W.  9. 

"Green  v.  Hernz,  37  N.  Y.  Supp-.  987,  2  App.  Div.  255. 

"Pout.  |  304.  Pangborn  v.  Miles,  10  Abb.  N.  Cas.  (N.  Y.)  42:  Rinaldo  y. 
HotiAeman,  1  Abb.  (N.  Caa)  (N.  Y.)  312;  Sachs  v.  Owing*.  131  Va.  162.  92 
S.  E.  097.  In  Lyon  v.  O'Kell,  14  Iowa,  238,  and"  Lyon  v.  Day,  15  Iowa.  409. 
the  court  below  rejecteH  evidence  offered  by  the  defendant  that  the  property 
wa»  so  inrumbered  that  the  plaintiff  could  not  perform  his  contract  to  convey 
a  good  titfe.  This  was  reversed  on  appeal.  The  grounds  of  the  ruling  Iwlow 
do  not  appear.  Similar  evidence  was  excluded  in  Murphy  v.  Richardson,  2S 
Pa.  St.  288,  on  the  ground  that  the  purchaser  had  bought  subject  to  the 
incumbrance,  but  this  decision  was  reversed  on  appeal,  the  court  holding  that 
whether  in  fact  the  purchase  had  been  BO  made  was  a  question  to  be  deter- 
mined by  the  jury. 


EECOVER  OE  DETAIN  PURCHASE' MONEY  OX  FAILUEE  OF  TITLE       65i 

v,' 

not  been  paid ;  he  has  a  right  to  recover  if  the  incumbrance  appears 
unsatisfied  of  record.8*  If  the  vendor  produces  an  abstract  show- 
ing that  the  incumbrance  has  been  satisfied,  he  must  further  show 
that  the  person  making  such  entry  had  authority  for  that  purpose.85 
In  a  case  in  which  the  purchaser  paid  off  an  incumbrance  which 
had  been  fraudulently  concealed  from  him,  and  the  amount  so 
paid,  together  with  what  he  had  already  paid  to  the  vendor, 
amounted  to  the  purchase  price  of  the  land,  the  court  stayed  the 
collection  of  the  purchase-money  notes  and  directed,  that  a  deed  be 
executed  to  the  purchaser.86  If  the  contract  expressly  require  that 
the  premises  shall  be  conveyed  to  the  purchaser  free  and  clear  of 
incumbrances,  he  cannot  be  required  to  accept  a  conveyance  so 
long  as  the  estate  remains  incumbered,  though  he  be  permitted  to 
deduct  the  amount  of  the  incumbrances  from  the  unpaid  purchase 
money.  Under  such  a  contract  the  vendor  cannot  impose  upon 
the  purchaser  the  burden  of  applying  the  purchase  money  to  the 
incumbrances  and  procuring  their  satisfaction.87  The  same  rule 
applies  in  respect  to  taxes  which  it  is  the  vendor's  duty  to  pay.88 
If  the  purchaser  accept  a  conveyance  from  a  third  person  who 
contracted*  to  convey  to  his  vendor,  he  will  be  held  to  have  waived' 
his  right  to  have  recourse  against  his  vendor  to  recover  back  money 
paid  to  remove  an  incumbrance  upon  the  premises.89  Where  the 
contract  obliges  the  vendor  to  remove  incumbrances  from  the  estate 
there  must  be  a  demand  accompanied  by  a  notice  of  the  removal  of 
the  incumbrance  before  he  can?  maintain  an  action  to  recover  the 
purchase  money.90  It  has  been  held  that  if  the  vendee  is  protected 

"Kimball  v.  Bell,  47  Kans.  757,  28  Pac.  Rep.  1015. 

85  O'Neill  v.  Douthett,  40  Kans.  690,  20  Pac.  Rep.  493. 

85  Rodman  v.  Williams,  4  Bl.   (Tnd.)   72. 

87  Webster  v.  Kings  Co.  Trust  Co.,  145  1ST.  Y.  275,  39  1ST.  E.  Rep.  964, 
obiter,  the  purchaser  in  that  case  having  in  fact  waived  his  objections. 

88Zorn  v.  McParland,  32  N".  Y.  Supp.  770,  155  N.  Y.  684,  50  N.  E.  1123; 
Berger  v.  Crist,  106  X.  Y.  Supp.  107,  121  App.  Div.  483;  Mandel  v.  Hess,  107 
X.  Y.  Supp.  766. 

89Herryford  v.  Turner,  67  Mo.  296. 

"90Fitts  v.  Hoitt,  17  N.  H.  530,  the  court  saying:  "The  plaintiff  had  his 
own  time  for  performing  the  acts  which  would  by  the  agreement  have  entitled 
him  to  the  payment  of  the  money  collected  by  the  defendant,  and  he  alone 
oould  know  at  what  time  he  became  entitled.  It  would  be  an  extreme  hard- 
ship to  permit  him,  immediately  upon  the  consummation  of  the  act,  which 


652  MARKETABLE   TITLE  TO   HEAL   ESTATE. 

as  an  innocent  purchaser  of  the  estate  without  actual  or  construc- 
tive notice  of  an  incumbrance  thereon,  he  cannot  elect  to  waive 
such  protection,  rescind  the  contract  and  recover  back  the  pur- 
chase money  merely  because  such  incumbrance  exists.  As  to  him, 
the  estate  is  unincumbered  and  he  must  complete  the  contract.91 
The  purchaser  cannot,  of  course,  be  compelled  to  pay  the  pur- 
chase money  and  rest  on  the  promise  of  the  vendor  to  remove  the 
incumbrance  and  execute  a  conveyance  afterward.  He  has  a 
right  to  see  that  the  purchase  money  is  actually  applied  to  the 
discharge  of  the  incumbrance.92  If  the  incumbrance  be  one  which 
the  vendor  can  remove,  the  objection  to  the  title  on  account  of  the 
incumbrance  will  be  waived  by  the  purchaser  unless  he  makes  it 
before  the  time  fixed  for  the  performance.93 

§246.  BUYING  WITH  KNOWLEDGE  OF  DEFECT  OR  INCUM- 
BRANCE.  If  the  purchaser  enter  into  the  contract  knowing  that 
the  title  is  imperfect  or  that  there  are  incumbrances  on  the  land,  he 
will,  as  a  general  rule,  be  deemed  to  have  waived  his  objections  to 
the  title,  though  not  necessarily  his  right  to  require  a  conveyance 
with  general  covenants  for  title.94  But  if  the  vendor  expressly 
agreed  to  remove  defects  or  clear  off  incumbrances  contemplated 
by  the  parties  at  the  time  the  contract  was  made,  he  cannot  enforce 
the  payment  of  the  purchase  money  until  he  has  performed  his 
contract  in  that  regard.95  Where  an  objection  to  the  title  was 

did  not  require  the  knowledge  or  concurrence  of  the  defendant  for  its  due 
performance,  without  notice  to  him,  to  maintain  an  action  tor  the  money. 
Hence,  the  general  rule  that  where  the  fact  upon  which  the  defendant'* . 
liability  arises  lies  peculiarly  within  the  knowledge  and  privity  of  the 
plaintiff,  notice  thereof  must  be  stated  to  have  been  piven  to  the  defendant 
l*fore  the  commencement  of  the  action."  Citing  Saund.  PI.  &  Ev.  132;  Rex 
v.  Holland,  5  T.  R.  021.  2  Saund.  62a- 

"Wilkin*  v.  Irvine,  33  Ohio  St.  138. 

"Milliard  Vend.  (2d  ed.)  277;  Wilhelm  v.  Fimple,  31  Iowa,  131,  7  Am. 
Rep.  117. 

"Biggins  T.  Kagleton,  155  N.  Y.  466,  60  N.  E.  2S7;  Rosenberg  v.  Jacob- 
Bon,  107  X.  Y.  S«pp.  505. 

••Ante,  |  85,  "Waiver  of  Objections."  Alien  v.  Hoparm.  1  Freem.  Ch. 
(Minn.)  276;  WigginH  v.  McCJiiupwy,  13  Sin.  &  M.  (Miss.)  532;  liaag  v. 
Dirk  in... n.  151  Ky.  768,  152  K.  W.  930;  Paris  V.  Golden.  1)6  Kan.  668.  153 
Pac.  528.  Contra,  Daly  v.  Bernstein,  (New  Mex.)  28  Pac.  Rep.  764,  and 
Wallach  v.  Riveraide  Bank,  200  X.  Y.  434,  100  N.  E.  50. 

"Black  v.  Croft,  51  Ga.  368;   McCool  v.  Jacobus,  7  Rob.    (N.  Y.)    115: 


RECOVER  OR  DETAIN  PURCHASE  MOXEY  OX  FAILURE  OF  TITLE       653 

raised  by  the  purchaser  and  the  vendor  agreed  to  refund  the  pur- 
chase money  "  if  it  should  be  adjudged  that  he  had  no  legal  right 
to  sell,  and  by  reason  thereof  the  purchaser  should  be  compelled 
to  give  up  the  premises,"  it  was  held  that  the  purchaser  could  not 
detain  the  purchase  money  unless  he  had  been  actually  or  con- 
structively evicted.96 

If  the  purchaser  assumes,  as  a  part  of  the  consideration,  the 
payment  of  an  incumbrance  upon  the  property,  the  existence  of 
such  incumbrance  is,  obviously,  no  objection  to  the  title.97  He 
is,  in  such  case,  chargeable  with  notice  of  the  contents'  of  the 
instrument  constituting  the  incumbrance,  and  cannot  avoid  his 

T*urney  v.  Hemmenway,  53  111.  97.  In  Swindell  v.  Richey,  41  Incl.  281,  it 
appeared  that  the'  owners  of  land,  at  a  sale  thereof  by  a  commissioner,  had 
agreed  to  pay  off  a  ditch  assessment  and  save  the  purchaser  harmless  there- 
from, and  it  was  held  that  the  purchaser  might  set  off  the  assessment 
against  the  purchase  money  in  a  stiit  therefor  by  the  commissioner.  In 
Ganz's  Appeal,  (Pa.  St.)  15  Atl.  Rep.  883,  it  was  held  that  a  purchaser 
might  set  bff  against  the  purchase  money  the  amount  paid  by  him  to  remove 
outstanding  interests,  but  that  he  must  pay  the  balance  of  the  purchase 
money  to  the  vendor.  The  fact  that  the  vendor  contracted  to  remove  the 
outstanding  interests  but  failed  to  remove  a  part  of  them,  does  not  affect 
his  right  to  recover  subject  to  the  purchaser's  right  of  set-off.  Where  a 
sub-purchaser  assumes  the  payment  of  a  balance  of  purchase  money  due  by 
his  vendor  to  the  original  vendor,  he  cannot  object  to  the  title  on  the  ground 
that  it  is  incumbered  by  a  mortgage  in  favor  of  such  original  vendor. 
Campbell  v.  Shrum,  3  Watts  (Pa.),  60. 

96  Failing  v.  Osborne,  3  Oreg.  498. 

97  Feist  v.  Block,  100  X.  Y,  Supp.  843,   116  App.  Div.  211.     For  circumr 
stances  under  which  evidence  is  admissible  to  show  that  the  purchaser  agreed 
to  assume  certain  intumbranceg  on  the  property,  see  Riggins  v.  Post,    (Tex. 
•Civ.  App.)    172  S.  W.  210.     A  purchaser,  subject  to  a  mortgage  in  a  specified 
amount,  cannot  refuse  to  perform  on  the  ground  that  the  specified1  amount 
is  secured  by  two  mortgages  instead  of  one.     Greenfield  v.  Mills,   107  N".  Y. 
Supp.  705,   123  App.  Div.  43.     Nor  because  of  the  failure  of  the  mortgage 
subject  to  which  he  pitrchased,  to  show  the  datp  of   its  maturity   and   the 
rate  of  interest  on  the  debt  secured.    Hal  pern  v.  Fisch,  101  N.  Y.  Supp.  1019, 
116   App.    Div.    479.     Nor   because   of   unusiial    covenants    in    the   mortgage. 
Baucher  v.  Stewart,   122  X.  Y.   Supp.  202,   136  App.  Div.  844.     If  the  pur- 
chaser fails  to  disclose,  before  the  closing  day,  his  intention  not  to  assume 
an  incumbrance  on  the  property,  the  vendor  is  entitled  to  a  reasonable  time  in 
which  to  removie  the  incumbrance.     Schuler  v.  Dooley,   134  X.  Y.  Supp.  9-9, 
149  App.  Div.  814.     A  purchaser  subject  to  a  mortgage  is  entitled  to  rescind 
?f  foreclosure  proceedings  had  been  begun  at  the  time  of  his  purchase.    Wacht 
v.  Hart,  105  X.  Y.  Supp.  78,  120  App.  Div.  189. 


654  MARKETABLE   TITLE   TO   REAL   ESTATE. 

purchase,  in  the  absence  of  deception  or  fraud,  because  he  did 
not  acquaint  himself  with  the  particular  terms  of  the  instrument 
and  finds  them  to  be  different  from  what  he  had  supposed.98 

If  the  purchaser  buys  knowing  that  the  vendor  has  only  an 
equitable  title,  he  cannot  detain  the  purchase  money  or  recover 
back  such  of  it  as  may  have  been  paid.  It  may  be  that  the  vendor 
will  have  the  legal  title  by  the  time  the  purchase  money  is  paid." 
It  may  be  doubted  whether  the  purchaser  would  be  permitted  to 
detain  the  purchase  money  even  if  he  bought  believing  that  the 
vendor  has  the  legal  title,  unless  time  were  of  the  essence  of  the 
contract,  or  it  should  appear  that  the  purchaser  would  be  injured 
by  delay  in  getting  in  the  legal  title.  The  fact  that  the  incum- 
brance  of  which  the  purchaser  complains  is  a  matter  of  public 
record,  does  not  affect  the  right  to  rescind.1 

The  purchaser  seeking  to  be  relieved  from  his  bargain  on  the 
ground  that  the  title  is  defective,  need  not  aver  that  he  was  igno- 
rant of  the  defect  at  the  time  of  the  sale.  It  is  for  the  seller  to 
allege  and  prove  that  the  purchaser  was  aware  of  the  condition  of 
the  title.1 

§  247.  CHANCING  BARGAINS.  The  right  of  the  purchaser  to 
rescind  an  executory  contract  for  the  sale  of  lands  by  recovering 
back  the  purchase  money,  or  detaining  that  which  remains  unpaid, 
depends  of  course  upon  the  nature  of  his  contract  with  the  vendor. 
The  right  of  the  purchaser  in  general  to  an  indefeasible  title  has 
been  elsewhere  considered.8  It  is  only  necessary  to  say  here  that 
the  purchaser  is  bound  to  complete  his  contract  if  both  parties  were 
fully  advised  of  objections  to  the  vendor's  title,  and  the  purchaser 
made  a  chancing  bargain,  taking  the  risk  of  the  assertion  of  ad- 
verse claims.1  In  «uch  a  case  ho  has  neither  the  right  to  rescind 

*  Frltcnstein  v.  Ernst,  07  X.  Y.  Supp.  37ft.  113  App.  Div.  903,  distinguished 
in  Oppenheim  v.  McOovern,  100  X.  Y.  Supp.  712,  115  App.  Div.  135. 

••Smith  v.  Hayne*.  9  Me.  128. 

1  Jud«on  v.  Wn»*.  11  Johns.  (X.  Y.  i  526,  6  Am.  Dec.  392;  Daly  v.  Bern- 
stein (New  Mex.)  28  Pac.  Rep.  764. 

•Taul  v.  Bradford,  20  Tex.  264;  Hurt  v.  McReynold*,  20  Tex.  595. 

•Ante,  I  5  and  post.  I  2S3. 

«Ewart  v.  Bowman.  70  S.  C.  Rep.  357.  49  S.  E.  Rep.  867:  KUis  v.  Anderton, 
88  N.  C.  472.  It  in  true  the  Hirle  was  by  an  administrator  in  this  case  tinder 
an  order  of  court,  00  that  the  rule  caveat  cmptor  applied;  but  no  distinction 


RECOVER  OR  DETAIN  PURCHASE  MONEY  ON  FAILURE  OF  TITLE       655 

the  contract  nor  to  require  a  conveyance  with  covenants  for  title, 
because  it  is  the  intention  of  the  parties  that  the  vendor  shall  be 
relieved  from  all  responsibility  or  liability  of  any  kind  in  respect 
to  the  title.  Many  titles  are  publicly  known  to  be  doubtful  and  are 
bought  and  sold  with  that  understanding.  There  have  been  in- 
stances in  which  the  purchaser  has  bought  such  a  title,  taken  a 
quit-claim  deed,  and  afterwards  sold  and  conveyed  at  a  profit  to 
a  person  seeking  a  like  opportunity  of  gain  and  taking  the  risk 
of  losing  the  premises.  Consequently  nothing  is  better  settled 
than  that  in  such  a  case  the  purchaser  cannot  refuse  to  complete 
the  contract  on  the  ground  that  the  title  is  bad.5  But  the  burden 
will  be  upon  the  vendor  to  show  that  the  purchaser  took  the  risk 
of  the  title.6  The  purchaser,  however,  will  not  be  deprived  of  his 
right  to  require  a  conveyance  with  covenants  for  title  by  the  mere 
fact  that  he  buys  with  knowledge  that  the  title  is  doubtful,  for  it 
may  be  that  the  covenants  he  is  to  receive  induce  him  to  enter  into 
the  contract.7  The  burden  will  be  upon  the  vendor  to  show  that 
the  purchaser,  seeking  to  detain  the  purchase  money,  took  the  risk 
of  the  title.8 

I'f  the  vendor  informs  the  purchaser  that  he  has  no  title,  and  sells 
merely  his  possession,  the  purchaser  cannot  recover  back  the  pur- 
chase money  on  the  ground  that  the  title  has  failed ;  first,  because 

is  perceived  between  a  case  in  which  the  purchaser  expressly  agrees  to  take 
such  title  as  he  can  get,  and  one  in  which  he  buys,  knowing  that  if  the  title 
is  bad  he  will  be  compelled  to  take  it.  See,  further,  Twohig  v.  Brown,  85 
Tex.  55,  19  S.  W.  Rep.  7fi8;  Cooper  v.  Singleton,  10  Tex.  267,  70  Am.  Dec. 
333;  Stewart  v.  Kreuzer,  127  Md.  1,  05  Atl.  1052;  Bushong  v.  Scrimshire, 
(Tex.  Civ.  App.)  172  S.  W.  155.  There  would  seem  to  be  no  more  doubt 
about  the  proposition  that  the  purchaser  cannot  recover  back  or  detain  the 
purchase  money  when  the  contract  is  executory,  if  he  took  the  risk  of  the  title, 
than  in  a  case  in  which  he  accepts  a  quit-claim  conveyance  of  the  premises, 
knowing  that  the  title  is  bad  or  doubtful.  The  only  practical  difference 
between  the  two  cases  would  seem  to  be  that  the  acceptance  of  the  quit- 
claim with  notice,  conclusively  shows  that  he  took  the  risk  of  the  title,  while 
in  the  case  of  an  executory  contract  the  burden  devolves  on  the  vendor  to 
show  an  acceptance  of  the  risk. 

,   5  Ante,  §  11.    Jones  v.  Taylor,  7  Tex.  240,  56  Am.  Dec.  48;  Neel  v.  Prickett, 
12  Tex.    137;    Winne  v.   Reynolds,   6   Paige    (X.   Y.),   407,   diet.   Kerney  v. 
Gardner,  27  111.  162;  Maxfield  v.  Bierbauer,  8  Minn.  413  (367). 
•  Littlefield  v.  Tinsley,  26  Tex.  353. 

7  Ante,  §  80. 

8  Twohig  v.  Brown,  85  Tex.  55,  19  S.  W.  Rep.  768. 


656  MARKETABLE  TITLE  TO   REAL   ESTATE. 

he  gets  all  to  which  he  is  entitled  under  the  contract,  and  again, 
because  the  money  is  voluntarily  paid,  with  full  knowledge  of  the 
facts,  and  there  can  be  no  imputation  of  fraud  or  mistake.9 

§    248.    EFFECT  OF  ACCEPTING  TITLE  BOND.      The    fact    that 

the  purchaser  took  from  the  vendor  a  bond  conditioned  to  make 
title  to  the  premises,  commonly  called  a  "title  bond,"  does  not, 
when  the  condition  of  the  bond  has  been  broken,  deprive  him  of 
the  right  to  recover  back  the  purchase  money,  co  nomine,  nor  will 
he  be  driven  to  an  action  on  the  bond  for  damages,  merely  because 
he  did  not  abandon  the  contract  within  a  reasonable  time  after 
discovery  of  the  vendor's  want  of  title,  for  it  may  be  that  he  had 
reason  to  believe  that  the  vendor  would  perfect  the  title.10 

The  right  of  the  purchaser  to  resist  the  payment  of  the  purchase 
money  on  failure  of  the  title,  where  the  contract  is  executory,  has 
been  denied  in  a  case  in  which  the  purchaser  took  a  bond  condi- 
tioned to  make  title  with  covenants  of  warranty,  and  had  not  hern 
evicted  by  the  adverse  claimant.  Practically,  the  acceptance  of 
the  title  bond  by  the  purchaser  was  given  the  same  effect,  as 
respects  the  detention  of  the  purchase  money,  as  the  acceptance 
of  a  conveyance  with  covenants  of  warranty.11  There  are,  how- 

*Vest  v.  Weir,  4  Bl.  (Ind.)  135.  Here  the  vendor  was  n  mere  trespasser 
on  the  land.  He  sold  his  possession  to  the  plaintiff  f»r  .*:!~>o,  tellinjr  him,  at 
the  time,  that  he  had  no  title,  and  that  the  land  helonjred  to  the  I'nited 
States.  The  decision  in  this  case  was  approved  in  Major*  v.  IJrush.  7  Ind. 
235,  and  there  di*f  uifruished  from  Hawkins  v.  Johnson.  4  Bl.  (Tnd.)  21. 

'•Hurst  v.  Means,  2  Sneed   (Tenn.),  546;  Bellows  v.  (In  ok,  2')  Ark.  424. 

"Coleman  v.  Rowe,  5  How.  (Miss.)  460,  37  Am.  Dec.  H54,  the  court  say- 
injr:  "If,  then,  there  has  IMTII  no  fraud,  7ior  any  eviction,  and  the  agreement 
is  executed,  tlio  vcndc«>  can  have  no  claim  to  relief  on  the  mere  ground  of  a 
failure  of  title.  1  Johns.  Cli.  (X.  Y.)  213.  Hut  as  in  the  present  case  the 
deed  has  not  been  delivered,  the  eontraot  remains  executory,  and  a  different 
rule,  it  is  Raid,  must  prevail.  This*  distinction  is  laid  down  and  supported 
liy  the  court  in  the  case  of  Miller  v.  I.onjr.  3  A.  K.  Marsh.  (Ky.)  335.  In 
that  rase  the  ripht  of  the  vendee  to  be  relieved,  where  the  deed  ha*  l>een 
delivered,  in  denied,  hut  it  is  said  (ob.  diet.)  to  be  otherwise  where  the  •  -"ii- 
tract  is  e\e.-ut,,ry.  to  execute  the  deed  in  future.  In  the  first  case  the  court 
recognize*  the  general  rule  laid  d«.\\n.  that  the  vendee  must  resort  to  his 
remedy  at  law  upon  his  covenants.  P.ut  in  cases  like  the  present,  where  the 
vendee  take*  the  precaution  to  secure  himself  l>y  a  penal  hond  covenanting 
to  convey  a  title  with  full  covenant*,  and  that  appears  to  he  the  oonsid.-ra 
tion  of  his  promise  to  pay  the  money,  though  we  may  consider  the  covenant 
to  convey  as  an  executory  contract,  yet  it  is  difficult  to  OMMti*  how  that 


657 

ever,  several  oases  in  which  the  opposite  view  has  been  taken.12  If 
the  purchaser  be  evicted  from  part  of  the  premises  covered  by  the 
title  bond,  he  will  be  entitled  to  detain  a  proportionate  part  of  the 
purchase  money.13 

If  the  vendor  execute  a  title  bond,  it  would  seem  that  the  pur- 
chaser should  not  be  allowed  to  surrender  the  possession,  rescind 
the  contract  and  recover  back  the  purchase  money,  on  the  ground 
that  the  title  is  bad  or  unmarketable,  until  the  condition  of  the 
bond  has  been  actually  broken.  If,  however,  that  condition  be 
broken,  if  the  vendor  be  unable  to  make  title  on  the  day  specified, 
and  the  purchaser  be  ready,  able  and  willing  to  complete  the  con- 
tract, he  may  rescind  and  recover  back  the  purchase  money 
already  paid.14 

circumstance  can  vary  the  rule  as  to  relief.  In  the  latter  case  the  vendee 
has  his  remedy  at  law  upon  the  covenants  in  the  bond,  and  he  would  seem 
to  be  equally  subject  to  the  general  rule  to  resort  to  that  remedy,  if  there 
is  no  fraud  nor  eviction."  See,  also,  McGhee  v.  Jones,  10  Ga.  127 ;  Black  v. 
Walker,  98  Ga.  31,  26  S.  E.  Rep.  477;  Johnson  v.  Dorough,  99  Ga.  644,  27 
S.  E.  Rep.  187;  Preston  v.  Walker,  109  Ga.  290,  34  S.  E.  Rep.  571;  Foute 
v.  Elder,  109  Ga.  713,  35  S.  E.  Rep.  118;  Mallard  v.  Allred,  106  Ga.  503, 
32  S.  E.  Rep.  588;  Home  v.  Rogers,  110  Ga.  362,  35  S.  E.  Rep.  715;  Strong 
v.  Waddell,  56  Ala,  471,  473,  dictum.  Coleman  v.  Bank,  115  Ala.  307,  22 
So.  Rep.  84;  Roach  v.  Rutherford,  4  Des.  (S.  C.)  126,  6  Am.  Dec.  606. 

"Hurst  v.  Means,  2  Sneed  (Tenn.),  546.  Bellows  v.  Cheek,  20  Ark.  424; 
Dunnivan  v.  Hughes,  86  Ark.  443,  111  S.  W.  271;  Henderson  v.  Fields,  143 
Ga,  547,  85  S.  E.  741;  Kennedy  v.  Smith,  10  Ga.  App.  644,  82  S.  E.  155; 
Mobley  v.  Keys,  13)  Sm.  &  M.  (Miss.)  677;  Brittain  v.  McLain,  6  Ired.  Eq. 
(N\  C.)  165;  Benson  v.  Coleman,  8  Rich.  L.  (S.  C.)  45;  Neel  v.  Prickett, 
12  Tex.  137.  (Compare  Sayre  v.  Mohney,  30  Oreg.  238,  47  Pac.  Rep.  197.) 
In  Georgia  it  has  been  held  that  the  obligee  in  the  bond  could  not  rescind 
nor  detain  the  purchase  money,  unless  he  could  show  clearly  a  paramount 
outstanding  title  against  the  obligor,  and  also  show  fraud  on  his  part,  or 
that  he  is  insolvent,  or  a  non-resident,  or  show  other  facts  which  would 
authorize  interference  with  the  contract  by  a  court  of  equity.  Black  v. 
Walker,  98  Ga.  31,  26  S.  E.  Rep.  477;  Newton  v.  Bower,  146  Ga.  524,  91 
S.  E.  684. 

13  Freeman  v.  Bow,  33  Ky.  L.  R.  254,  1O9  S.  W.  877. 

"Smith  v.  Lewis,  26  Conn.  110;  Clark  v.  Weis,  87  111.  43®,  29  Am.  Rep. 
60;  Hough  v.  Rawson,  17  HI.  588;  Smith  v.  Lamb,  26  111.  396,  79  Am.  Dec. 
381;  Sanderlin  v.  Willis,  98  Ga.  278,  25  S.  E.  Rep.  437;  Kares  v.  Oovell, 
ISO  Mass.  206,  62  X.  E.  Rep.  244.  In  Miller  v.  Owens,  Walk.  (Miss.)  245 
(1826),  the  vendor  and  his  wife  sold  to  the  purchaser  certain  interests  in 
real  property,  among  others  that  of  an  infant  child  of  the  wife  by  a  former 

83 


MARKETABLE   TITLE   TO    KEAL   ESTATE. 

A  condition  in  the  bond  that  the  obligor  shall  convey  a  good 
and  clear  title  free  from  all  incumbrances,  refers  to  the  title  which 
is  to  pass  by  the  deed  and  not  to  the  state  of  things  existing  at  the 
time  of  the  execution  of  the  bond.  Hence,  the  condition  is  broken 
by  the  condemnation  of  a  part  of  the  premises  for  the  purpose  of 
widening  a  highway  after  the  execution  of  the  bond,  and  the 
obligee  is  entitled  to  recover  back  payments  made  by  him  on  the 
land.15 

§  240.  INQUIRY  INTO  CONSIDERATION  OF  SEALED  INSTRU- 
MENT. At  common  law  the  consideration  of  a  sealed  instrument 
could  not  be  inquired  into;  consequently,  in  an  action  on  a  bond 
given  for  the  purchase  money  of  land,  the  defendant  could  not 
show  that  the  consideration  had  failed  for  want  of  title  in  the 
vendor.16  This  rule,  however,  has  been  very  generally  changed 
throughout  the  United  •States  by  statutes  abolishing  all  distinctions 
between  sealed  and  unsealed  instruments,17  or  allowing  failure  of 
consideration  to  be  set  up  as  a  defense  to  an  action  on  an  instru- 
ment under  seal.18 

§  250.  RIGHT  TO  ENJOIN  THE  COLLECTION  OF  THE  PUR- 
CHASE MONEY  WHILE  THE  CONTRACT  IS  EXECUTORY.  If  the 
purchaser  has  had  no  opportunity  to  set  up  the  defense  of  want 
of  title  in  the  vendor  in  an  action  for  the  purchase  money,  he  may 
have  relief  in  equity  by  way  of  injunction.  But  he  will  not,  in 
some  of  the  States,  be  entitled  to  that  remedy,  where  there  is  a 
judgment  for  the  purchase  money,  unless  he  had  no  opportunity 

husband,  and  executed  a  bond  to  make  title  or  indemnify  the  purchaser 
:i-_';iiii-t  any  claim  of  the  infant.  While  the  contract  was  yet  executory,  the 
purchaser  refused  to  pay  the  purchase  money  on  the  ground  of  the  defective 
title,  and  judgment  was  rendered  in  his  favor  by  the  court  hclow.  Thin  wa* 
reversed  on  appeal,  the  court  saying  that  though  the  vendor  "  could  not  sell 
the  right  of  another  person  to  a  tract  of  land  to  the  prejudice  of  the  real 
owner,  yet  having  possession  and  an  undivided  interest  in  the  premises,  and 
having  sold  each  interest  separately,  Uut  given  possession  of  the  whole  to 
the  purchaser,  and,  a«  it  appears,  the  purchaser  Bought  the  contract  and  took 
the  security  he  required,  and  he  and  his  heirs  remaining  in  the  quiet  and 
peaceable  poNseswion  of  the  premises,  we  can  see  no  reason  why  he  should  not 
pay  the  purchase  money." 

"Kares  v.  Owell,  1«0  Mans.  206,  ft2  N.  E.  Rep.  244. 

"Colonial!  v.  Sanderlin,  5  Humph.   (Tenn.)   661. 

"  Mullimi  v.  Jones.  1  Head   (Tenn.h  510. 

"Rawle  Oovtu.   (5th  ed.)   §  32.1). 


RECOVER  OR  DETAIN  PURCHASE  MONEY  ON  FAILURE  OF  TITLE       659 

to  make  his  defense  at  law.19  In  this  respect  the  rule  appears  to 
he  the  same  whether  the  contract  is  executed  or  executory.  The 
vendor,  having  the  legal  title,  may,  of  course,  maintain  ejectment 
at  any  time  against  the  purchaser  if  he  fail  to  pay  the  purchase 
money.  Failure  of  the  title,  it  is  apprehended,  would  be  no  de- 
fense to  such  an  action.  It  would  seem,  however,  that  if  the  pur- 
chaser were  entitled  to  detain  the  premises  in  order  to  enforce  his 
lien  for  the  purchase  money  paid,  or  if,  under  the  contract,  he 
had  a  right  to  compel  the  vendor  to  remove  incumbrances  or  ob- 
jections to  the  title,  an  injunction  would  lie  to  stay  proceedings 
in  the  action  of  ejectment. 

The  fact  that  the  purchaser  had  a  remedy  over  by  action  at  law 
on  a  title  bond  executed  by  the  vendor  has  been  held  no  ground  for 
refusing  an  injunction  against  the  collection  of  the  purchase 
money.20  The  injunction  will  not  be  granted  if  the  difficulty  in 

19  (As  to  the  Tight  to  an  injunction  where  the  contract  has  been  executed 
by  a  conveyance  with  covenants  for  title,  see  post,  ch.  34.)  High  on  Injunc- 
tions (3d  ed.),  §  410;  Shipp  v.  Wheless,  38  Miss.  646;  MtLaurin  v.  Parker, 
24  Miss.  509;  Kebler  v.  Cureton,  Rich.  Eq.  Cas.  (S.  C.)  143;  Bartlett  v. 
Loudon,  7  J.  J.  Marsh.  (Ky.)  641;  Dudley  v.  Bryan,  6  J.  J.  Marsh.  (Ky.) 
231;  Moore  v.  Hill,  59  Ga.-760;  Bullitt  v.  Songster,  3  Munf.  (Va.)  54. 
In  this  case  the  vendor  had  agreed  in  writing  that  if  the  purchaser  should 
be  evicted  from  any  part  of  the  land  the  purchase  money  should  be  cor- 
respondingly abated.  A  purchaser  paying  off  incumbrances  after  the  judg- 
ment against  himself  for  the  purchase  money,  may  have  an  injunction 
against  the  judgment  if  the  vendor  is  insolvent.  Shelby  v.  Marshall,  1  Blackf. 
(Ind.)  384.  An  injunction  against  proceedings  to  collect  the  purchase  money 
will  not  be  granted  for  the  purpose  of  allowing  the  purchaser  to  avail  himself 
of  counterclaim,  offset  or  unliquidated  demands,  which  might  be  availed  of 
in  a  defense  to  the  action  at  law.  Freize  v.  Cliapin,  2  R.  I.  429.  Xor  if  the 
plaintiff  merely  seeks  damages  in  equity.  Robertson  v.  Hogshead,  3  Leigh 
(Va.),  667.  High  on  Injunctions  (3d.  ed.),  §  411.  If  the  purchaser's  obliga- 
tion for  the  purchase  money  provide  that  it  shall  not  be  payable  until  certain 
disputes  respecting  the  title  are  ended,  the  pendency  of  those  disputes  con- 
stitutes no  ground  for  an  injunction  against  an  action  on  the  obligation, 
because  the  fact  that  the  disputes  are  not  ended  is  a  complete  defense  at 
law.  Hence,  it  has  -been  said  that  in  a  contract  to  pay  money  on  a  con- 
tingency, it  .being  necessary  to  allege  and  prove  the  happering  of  the  con- 
tingency before  a  judgment  at  law  can  be  obtained,  an  injunction  against 
the  judgment,  if  suffered  by  the  payor,  cannot  be  sustained  on  the  ground 
that  the  contingency  has  not  occurred.  Allen  v.  Phillips,  2  Litt.  (Ky.)  1. 

"Brittain  v.  McLain,  6  Ired.  Eq.  (N.  C.)  165;  Heavner  v.  Morgan,  41 
W.  Va.  428,  23  S.  E.  Rep.  874. 


660  MARKETABLE   TITLE   TO   REAL   ESTATE. 

obtaining  title  was  brought  about  by  the  neglect  of  the  purchaser 
himself;  as  where  he  failed  to  pay  the  purchase  money  in  the  life- 
time of  the  vendor  so  that  proceedings  in  chancery  to  obtain  the 
title  from  infant  heirs  at  law  became  necessary.21  Xor  will  the 
injunction  be  granted  on  the  ground  that  the  title  has  failed,  if  it 
appear  that  the  rights  of  all  adverse  claimants  have  become  barred 
by  the  Statute  of  Limitations.22 

If  the  vendor  fraudulently  concealed  or  misrepresented  the  state 
of  his  title  an  injunction  will  lie  to  restrain  the  collection  of  the 
purchase  money ; B  and  that  too,  it  is  apprehended,  without  regard 
to  the  fact  that  the  fraud  may  be  or  might  have  been  set  up  as  a 
defense  of  law.54  The  remedy  in  equity  in  such  cases  is  concur- 
rent with  that  at  law. 

Tn  Pennsylvania  the  vendor  is  entitled  to  a  judgment  for  the 
whole  of  the  purchase  money,  but  a  stay  of  execution  will  be 
awarded  to  the  purchaser  until  the  vendor  removes  any  lien  or 
incumbrance  upon  the  premises  for  which  he  is  liable.25 

The  remedy  by  injunction  against  proceedings  to  collect  the  pur- 
chase money  is  not  necessarily  in  disaftirmance  or  rescission  of  the 
contract;  for  it  may  be  that  the  object  of  the  injunction  is  to  com- 
pel the  vendor  to  remove  defects  in  the  title,  or  to  apply  the  pur- 
chase money  to  the  discharge  of  incumbnmees,  or  to  enforce  some 
equity  in  behalf  of  the  purchaser  which  does  not  require  a  rescis- 
sion of  the  contract.2*  In  such  case  it  is  customary  to  grant  a 
temporary  injunction,  and  of  course  there  need- be  no  surrender  of 

"Prout  v.  Gibson,  1  Crunch   (C.  C.),  389. 

"Amick  v.  Bmvyer,  3  W.  Va.  7;  Piedmont  Coal  Co.  v.  Green,  3  W.  Va.  54; 
Peers  v.  Harriett,  12  Grat.  (Va.)  410,  where  the  injunction  unit  had  linpered 
on  the  docket  until  defects  in  the  title  were  cured1  hy  the  statute. 

"Starke  v.  ITcnderHon,  30  Ala.  438:  Lanier  v.  Hill.  25  Ala.  554.  In  hoth 
these  en  sen  the  vendor,  an  administrator  c.  t.  a.,  had  falsely  represented  that 
he  had  authority  under  the  will  to  Bell. 

"Pmt.  eh**.  29,  34.  I  329. 

•Jackson  v.  Knipht,  4  Watts  &  Serj?.   (Pa.)  412, 

"Thus  in  Price  v.  Hrowninp,  4  Orat.  (Va.)  72.  an  injunction  was  pranted 
until  the  extent  of  the  purchaser'*  lotwet*  from  incumbranceH  on  the  premises 
could  he  awrrtained.  And  in  Reeves  v.  Dickey,  10  drat.  (Va.)  138,  the  cause 
wan  remanded  to  the  lower  court  with  i  net  ructions  to  prant  a  temporary 
injunction  until  it  eould  he  nscectained  whether  the  title  could  be  perfected, 
and  to  perpetuate  the  injunction  if  it  appeared  that  a  pood  title  could  never 
be  made. 


RECOVER  OK  DETA1X  PURCHASE  MOATEY  OX  FAILURE  OF  TITLE 

the  premises  by  the  purchaser.  But  if  he  seeks  a  perpetual  in- 
junction, which  is  in  effect  a  rescission  of  the  contract,  he  must 
restore  the  premises  to  the  vendor.  He  cannot  have  both  the  in- 
junction and  the  benefit  of  his  purchase.27  But  while  a  perpetual 
injunction  substantially  rescinds  the  contract,  the  complainant 
must  pray  a  rescission  in  terms ;  otherwise  it  will  be  presumed  that 
he  intends  to  keep  both  the  premises  and  the  purchase  money,  and 
the  bill  will  be  dismissed.28  If  the  purchaser  buys  with  knowledge 
that  the  title  is  defective,  he  cannot  have  a  perpetual  injunction 
unless  it  appear  that  the  title  cannot  be  perfected.29  This  seems  a 
reasonable  rule,  for  it  may  be  that  the  purchase  was  made  with  the 
understanding  that  the  title  should  be  perfected  before  payment 
of  the  purchase  money  might  be  compelled.  But  if  the  contract 
was  one  of  pure  hazard,  the  purchaser  to  get  merely  such  title  as 
the  vendor  had,  there  can  be  no  doubt  that  the  injunction  should 
be  denied.30 

If  by  the  terms  of  the  contract  payment  of  the  purchase  money 
is  a  condition  precedent  to  the  purchaser's  right  to  demand  a  deed, 
it  has  been  held  that  a  bill  to  enjoin  the  collection  of  the  purchase 
money  on  the  ground  that  the  title  has  failed  should  be  dismissed, 
unless  the  complainant  alleges  that  he  offered  to  pay  the  purchase 
money  and  demanded  a  deed.  If,  however,  he  had  made  such 
tender  and  demand,  and  the  defendant  had  refused,  or  was  unable 
to  convey  a  good  title,  the  collection  of  the  purchase  money  would 

"Edwards  v.  Strode,  2  J.  J.  Marsh.  (Ky.)  506;  Markham  v.  Todd,  2  J.  J. 
Marsh.  (Ky.)  364,  where  it  was  held  that  the  court  might  at  the  time  of 
perpetuating  the  injunction,  decree  that  the  premises  be  restored  to  the 
vendor.  Brannum  v.  Ellison,  5  Jones  Eq.  (N.  C.)  435. 

28 Williamson  v.  Raney,  Freem.  Ch.  (Miss.)    112. 

29  As  to  right  to  injunction  under  similar  circumstances  where  the  con- 
tract has  been  executed  by  a  conveyance  with  covenant  for  title,  soe  post, 
ch.  34.  Reeves  v.  Dickey,  10  Grat.  (Va.)  138.  In  Lucas  v.  Chapeze,  2  Litt. 
(Ky.)  31,  the  complainants  had  purchased  an  equitable  title  with  knowledge 
that  a  suit  by  the  vendee  to  obtain  the  legal  title  was  pending.  It  was  held 
that  an  injunction  to  restrain  the  collection  of  the  purchase  money  was 
properly  dismissed  in  the  absence  of  evidence  that  the  suit  to  obtain  the  legal 
title  was  not  being  pursued  with  reasonable  diligence.  Williamson  v.  Raney, 
Freem.  Ch.  (Miss.)  112. 

30Carrico  v.  Froman,  2  Litt.  (Ky.)  178,  where  the  purchaser  agreed  in 
writing  that  the  purchase  money  should!  not  be  detained  if  adverse  claims 
were  asserted. 


662  MARKETABLE    TITLE    TO    REAL    ESTATE. 

be  enjoined  until  the  sufficiency  of  the  title  could  be  determined.31 
If  the  vendor  refuse  to  convey  the  land  by  good  and  sufficient  deed, 
or  refuse  or  neglect  to  procure  the  signature  of  all  necessary  parties 
to  the  conveyance  in  order  that  the  title  may  be  perfected,  the  col- 
lection of  the  purchase*  money  may  be  enjoined.33  If  the  vendor 
seeks  a  dissolution  of  the  injunction  the  burden  will  be  upon  him 
to  show  that  he  can  convey  to  the  purchaser  such  a  title  as  the  con- 
tract requires."  If  an  injunction  against  the  collection  of  the  pur- 
chase money  be  dissolved  on  the  ground  that  the  title  has  been  or 
may  be  perfected  by  the  vendor,  neither  costs  nor  damages  should 
bo  awarded  against  the  purchaser,  the  vendor  having  incurred  these 
by  reason  of  his  own  default." 

§  251.  BIGHTS  AGAINST  TRANSFEREE  OF  PURCHASE-MONEY 
NOTE.  The  purchaser  of  a  negotiable  purchase-money  note  after 
maturity  takes  subject  to  the  vendee's  right  of  defense  for  want 
of  title  to  the  land.35  So,  also,  one  who  purchases  before  maturity 
with  notice  of  the  vendee's  equities.38  But  a  purchaser  of  the 
note  before  maturity  for  value  and  without  notice,  will  not  be 
affected  by  failure  of  the  vendor's  title.37  If  the  no-te  was  not 
negotiable,  the  purchaser,  whether  before  or  after  maturity,  takes 
subject  to  equities  between  the  vendor  and  the  vendee.38 

§2 5 2. REFUSAL  OF  VENDOR  TO  CONVEY  FOR  WANT  OF  TITLE. 
It  has  been  held  in-  England  that  if  the  purchaser  execute  a  note  to 

"Mitchell  v.  Sherman,  Freem.  Cb.  (Miss.)  120,  where  the  vendor  gave 
Ix.rul  to  convoy  "  a  good1  anil  sufficient  title,  as  soon  as  the  entire  and  full 
amount  of  the  purchase  money  should  be  paid." 

"Jaync  v.  Bnick,  10  Grat.  (Va.)  211;  M<-Koy  v.  Chiles,  5  T.  B.  Mon. 
(Ky.)  2-r)f>,  where  the  vendor  failed  to  procure  a  relinquishment  of  his  wife's 
contingent  right  of  dower.  Fishhrfck  v.  Williams,  3  Bibb  (Ky.),  342. 

"Moredock  v.  WiHinms,  1  Overt.  (Tenn.)  325  (257);  Moore  v.  Cooke,  4 
Haw.  (Tenn.)  ft5  (981). 

"Fishbadc  v.  Williams,  3  Bibb  (Ky.),  342,  Each  party  was  decreed  to 
pay  his  own  oosrt*.  Porter  v.  Scobie,  5  B.  Mon.  (Ky.)  387,  reversing  the  court 
Mow;  I.;ini|>t..n  v.  t'sher,  7  B.  Mon.  (Ky.)  67.  In  Reeves  v.  Dickey,  10  Grat. 
(\'».)  13.H.  cwts  were  refused  the  vendor  even  though  the  purchaser  knew 
when  he  )>ought  that  the  title  was  defective, 

VlohnKon  v.  Si  Midi.  6  BaxU  (Tenn.)  41. 

"Knapp  v.  Lee,  3  Pick.  (Mase.)  452;  Lamb  v.  James,  87  Tex.  4S5,  29 
S.  W.  Rep.  C»7. 

"  Gee  v.  S.i under.*,  00  Tex.  333. 

"Timms  v.  ijliannon,  ID  Md.  200,  81  Am.  Dec.  032. 


RECOVER  OR  DETAIN  PURCHASE  MONEY  ON  FAILURE  OF  TITLE       663 

secure  deferred  payments  of  the  purchase  money  he  cannot,  if  the 
vendor  refuses  to  convey,  rescind  the  contract  by  detaining  the  pur- 
chase money.  He  must  pay  the  note  and  look  to  his  action  to 
recover  damages  for  -breach  of  the  contract.  The  reason  is  that 
the  purchaser,  by  executing  a  distinct  instrument  promising  to 
pay  a  part  of  the  purchase  money  on  a  particular  day,  undertakes 
to  pay  on  that  day  at  all  events.39  This  rule  was  recognized  in  a 
case  in  ^ew  York  in  which  the  failure  of  the  vendor  to  convey 
was  occasioned  by  his*  want  of  title.40  It  was  unnecessary,  however, 
to  decide  the  point  in  that  case,  and  it  may  be  doubted  whether  the 
rule  established  by  the  English  case  would  be  followed  in  America, 
in  a  case  in  which  the  purchaser  had  a  clear  right  to  rescind  the 
contract  on  the  ground  that  the  title  had  failed.41  There  would 
seem  to  be  no  reason  in  requiring  the  purchaser  to  pay  over  money 
to  the  vendor  which  he  might  immediately  recover  back  from  him 
as  damages  for  breach  of  the  contract. 

§  253.  BIGHT  TO  RESCIND  AS  DEPENDENT  ON  TENDER  OF 
PURCHASE  MONEY  AND  DEMAND  OF  DEED.  The  duty  of  the 
purchaser  to  tender  the  purchase  money  and  demand  a  conveyance 
as  a  condition  precedent  to  the  right  to  rescind  the  contract  on 
failure  of  the  title,  and  to  detain  or  recover  back  the  purchase 
money,  as  the  case  may  be,  has  been  elsewhere  considered.42  It 
may  be  added  here,  however,  that  when  the  vendor's  title  is  de- 
fective and  the  vendee,  upon  ascertaining  it,  refuses  to  take  such 

'"Spiller  v.  Westlake,  2  B.  &  Ad.  155,  22  E.  C.  L.  74;  Moggridge  v.  Jones, 
14  East,  486,  3  Camp.  38;  Freeligh  v.  Platt,  5  Oow.  (N.  Y.)  494;  Chapman 
V.  Eddy,  13  Vt.  205. 

40 Lewis  v.  McMillen,  41  Barb.   (N.  Y.)   430. 

41  It  was  intimated  by  PARKE,  J.,  in  Spiller  v.  Westlake,  supra,  that  the 
defendant  might  have  resisted  the  payment  of  the  note  in  that  case  if  the 
circumstances  had  been  such  that  the  money  in  dispute  might  have  been 
recovered  back  if  the  defendant  had  paid  it  as  a  deposit,  which  is  as  much  as 
to  say  that  the  defendant  might  have  resisted  the  payment  of  the  note  if  he 
had  been  entitled  to  rescind  the  contract. 

43  Ante,  §  86.  Leach  v.  Rowley,  138>  Cal.  709,  72  Pac.  Rep.  403L  The  mere 
existence  of  a  mortgage  on  the  property  sold  does  not  relieve  the  purchaser 
from  his  obligation  to  tender  the  purchase  money.  Whitney  v.  Crouch,  172 
N".  Y.  Supp.  72,9.  See  the  case  of  Noyes  v.  Brown  (Minn.)  171  1ST.  W.  803,  for 
an  instructive  review  of  cases  upon  the  question  when  the  covenants,  in 
the  respect  stated  in  the  text,  are  to  be  considered  non-concurrent  and 
independent. 


664  MARKETABLE   TITLE   TO   BEAL   ESTATE. 

title  and  the  vendor,  instead  of  taking  measures  to  cure  the  defects, 
simply  holds  himself  ready  to  convey  such  title  as  he  has  and 
requests  the  vendee  to  accept  it,  giving  him  notice  that  he  will 
be  held  for  any  loss,  the  vendee  is  not  called  upon  to  make  any 
other  or  further  tender  or  offer  of  payment  in  order  to  rescind 
the  contract  by  detaining  the  purchase  money  or  recovering  back 
the  payments  made.43  If  the  vendor  fails  to  take  steps  to  cure 
defects  in  the  title,  pointed  out  by  the  purchaser,  until  the  time 
for  curing  such  defects  expires,  the  purchaser  is  not  bound  to 
tender  full  performance  before  suing  to  recover  his  deposit.44  In 
a  case  in  which  there  was  evidence  that  the  purchaser  had  paid 
part  of  the  purchase  money  and  was  willing  and  ready  to  pay 
the  balance  and  to  accept  a  deed,  which  deed,  however,  was  not 
tendered  by  the  vendor,  and  could  not  be  given  because  the  title 
was  bad,  it  was  held  that  the  failure  of  the  purchaser  to  tender 
the  purchase*  money  and  demand  a  deed  did  not  affect  his  right, 
to  rescind,  though  there  had  been  no  absolute  refusal  by  the  vendor 
to  make  a  deed.45  If,  after  tender  of  the  purchase  money  and 
demand  of  a  conveyance,  the  vendor  do  not  perform  the  contract 
on  his  part,  the  purchaser  is  not  bound  to  demand  the  return  of 
lii-  purchase  money  or  notify  the  vendor  of  his  intent  to  rescind 
the  contract  before  he  can  maintain  an  action  to  recover  back 
what  he  had  paid.4' 

It  has  been  held  that  if  payment  of  the  purchase  money  and  the 
conveyance  of  a  good  title  to  the  purchaser  are  by  the  contract  to 
he  >imultaneou8  or  concurrent  acts,  the  purchaser  may  resist  the 

•Hartley  v.  James,  50  N.  Y.  41.  See,  also,  Hanson  v.  Fox,  155  Cal.  100, 
1K»  Par.  4 Vi.  l::j  Am.  St.  Kep.  72.  20  L.  R.  A.  (X.  S.)  338;  Joyce  v.  ShanYr. 
!i7  nil.  .'5.76,  32  Par.  320.  In  MrCullmifrh  v.  Boyd.  120  Pa.  St.  552.  14  Atl.  K.-p. 
438,  it  wa«  held  that  the  purchaser  must  aver  payment  or  tender  of  tin- 
pimhase  money  in  full,  or  set  forth  a  reason  f<»r  non-payment,  before  he 
ran  recover  hack  Mu-h  of  the  purchase  money  as  he  may  have  paid,  where 
tiy  the  terms  of  hii  eontrH.-t.  he  is  not  entitled  to  a  conveyance  until  the 
purchase  money  has  been  fully  paid. 

"Walters  v.  Mitchell,  «  Cal.  App.  410,  92  Pac.  315;  Post,  |  311. 

"Linton  v.  Allen.  154  Mas*.  432,  2*  X.  K.  Rep.  780. 

TJill.-tt  v.  Maynard.  :>  .Johns.  (N.  Y.)  86,  4  Am.  l)cv.  320;  Camp  V.  Morse, 
.-.  Dt-itio  IX.  Y.),  104;  Van  Benthuysen  v.  Cni>pcr.  S  Johns.  (X.  Y.)  259; 
Frost  v.  Smith,  7  BOHW.  (NT.  Y.)  108;  Chalfield  v.  Williams,  85  Cal.  518,  24 
Pac.  Rep.  830. 


RECOVER  OK  DETAIN  PURCHASE  MONEY  ON  FAILURE  OF  TITLE       665 

payment  of  the  purchase  money  though  he  has  not  been  evicted 
from  the  premises,  unless  the  vendor  shows  that  he  has  tendered 
to  the  purchaser  such  a  conveyance  and  title  as  the  contract  re- 
quires.47 If,  however,  under  the  contract,  the  purchaser  is  obliged 
to  pay  the  purchase  money  before  the  making  of  the  conveyance 
he  cannot  refuse  so  to  do  on  the  ground  that  the  title  is  bad,  with- 
out surrendering  or  offering  to  surrender  the  premises.48  If 
under  the  contract  the  purchaser  is  bound  to  tender  the  purchase 
money  before  he  can  rescind,  the  mere  abandonment  of  the  pos- 
session without  such  tender,  demand-  of  title  and  refusal,  will 
constitute  no  defense  to  an  action  for  the  purchase  money.49  If 
the  contract  provide  that  the  purchase  money  shall  not  be  paid 
until  a  good  title  is  tendered,  or  if  the  vendor  permits  the  pur- 
chaser to  take  possession  without  any  agreement  as  to  when  the 
purchase  money  shall  be  paid,  the  purchaser  cannot  be  required 
to  tender  performance  or  bring  the  money  into  court,  as  a  condi- 
tion precedent  to  his  right  to  rescind  the  contract  on  failure  of 
the  title.50 

There  are  cases  which  hold  that  if  the  purchaser  executes  his 
notes  for  the  purchase  money,  payable  in  installments,  and  takes  a 
bond  from  the  vendor  conditioned  to  make  title  when  the  last  in- 
stallment is  paid,  the  covenants  are  independent,  and  the  purchaser 
cannot  detain  any  of  the  installments  on  the  ground  that  the  title  is 
defective.51  the  reasons  being,  among  others,  that  the  vendor  may 

"Feemster  v.  May,  13  Sm.  &  M.  (Miss.)  275,  53  Am-.  Dec.  83";  Wiggins 
v.  McGimpsey  Id.  532,  citing  Robb  v.  Montgomery,  20  Johns.  (N.  Y. )  1*5; 
Sage  v.  Ranney,  2  Wend.  (N.  Y.)  534;  Peques-  v.  Moshy,  7  Sm.  &  M.  (Miss.) 
340.  But  see  McMath  v.  Johnson,  41  Miss.  439,  and  cases  cited*  infra.  If, 
by  the  contract,  the  purchase  money  is  to  be  paid  on  a  day  fixed,  and  the 
deed  is  to  be  executed  at  a  later  day,  the  covenants  are  independent,  and  it 
is  no  defense  to  an  action  for  the  purchase  money  that  the  conveyance  had 
not  been  executed  and  tendered  to  the  purchaser.  Vandiver  v.  Reynolds,  174 
Ala.  582,  57  So.  462. 

48  Cases  cited  in  last  note.    George  v.  Stockton,  1  Ala.  136. 

49  Clemens  v.  Loggins,  1  Ala.  622. 
5-°2  Warvelle  Vend.  915,  916. 

51  Ante,  §  8'8.  Post,  ch.  3*2.  2  Warvelle  Vend.  843.  Gibson  v.  Newman,  1 
How.  (Miss.)  341;  Coleman  v.  Rowe,  5  How.  (Miss.)  460,  37  Am.  Dec.  164; 
Clopton  v.  Bolton,  23>  Miss.  78;  McMath  v.  Johnson,  41  Miss.  43<9,  disapprov- 
ing Peques  v.  Mbsby,  7  S.  &  M.  (Miss.)  540,  and  Feemster  v.  May,  13  S.  &  M. 

84 


GGG  MAKKETABl.i:    TITLE    TO    KEAL    ESTATE. 

perfect  the  title  before  all  of  the  purchase  money  is  paid,ji  and  that 
it  may  be  that  he  looks  to  the  purchase  money  itself  as  a  fund  for 
the  removal  of  objections  to  the  title.CJ  If,  however,  the  vendor 
were  insolvent  or  for  any  other  reason  the  purchaser's  rights  would 
be  greatly  endangered  by  a  rigid  observance  of  the  foregoing  rule, 
it  is  apprehended  that  the  purchase  money  might  be  paid  into 
court  to  be  there  applied  to  the  clearing  up  of  the  title  or  returned 
to  the  purchaser  if  it  should  be  found  that  no  title  could  be  had. 
It  has  also  been  held  that  if  the  vendor  execute  a  title  bond  con- 
ditioned to  convey  on  payment  of  purchase  money,  such  payment 
constitutes  a  condition  precedent  to  the  conveyance  of  the  title; 
so  that  if,  after  default  in  the  payment  of  the  purchase  money, 
the  vendor  conveys  the  premises  to  a  stranger,  thereby  incapacitat- 
ing himself  from  conveying  to  the  purchaser,  that  fact  constitutes 
no  defense  to  an  action  for  the  purchase  money.  The  purchaser 
must  pay  the  purchase  money  and  look  to  his  remedy  on  the  title 
bond.5*  And  if  in  such  case  instead  of  being  merely  in  default 
in  the  payment  of  the  purchase  money  the  purchaser,  after  paying 
part  thereof,  abandons  the  contract,  the  vendor  is  free  to  sell 

(Miss.)  273,  53  Am.  Dec.  83;  Drenner  v.  Boyer,  5  -Ark.  497;  Monsen  v. 
Stevenson,  56  111.  335;  Hudson  v.  Swift,  20  Johns.  (X.  Y.)  25.  This,  hmv- 
ever.  was  an  action  to  recover  hack  the  purchase  money;  but  the  principle 
appears  to  be  the  same  in  either  case.  Ellis  v.  Hoskins,  14  Johns.  (N.  Y.) 
3(53;  Ixfvrridge  v.  Coles,  72  Minn.  57,  74  X.  W.  Rep.  1109. 

"Greenby  v.  Checvi-rs,  9  Johns.  (X.  Y.)   127. 

"Green  v.  Green,  9  Cow.  (N.  Y.)  46;  Ellis  v.  Hoskins,  14  Johns.  (N.  Y.) 
363. 

**  Foster  v.  .Jared.  12  111.  454.  the  court  saying:  "The  conveyance  of  the 
land  ami  the  payment  of  the  note  in  question  are  not  concurrent  acts.  The 
payment  of  the  note  is  to  precede  the  conveyance.  The  vendor  is  not  bound 
to  execute  a  conveyance  until  all  the  note*  are  paid.  The  doctrine  that  in  the 
CMe  of  dependent  covenants  neither  party  can  rex-over  miles*  lie  has  fully  per- 
formed nr  offered  to  perform  on  his  part  has,  therefore,  r.u  application  to  this 
case.  The  defendant  cannot  put  the  vendor  in  default  until  he  has  paid  or 
offered  to  jHiy  the  entire  purchase  money.  He  undertook  to  pay  the  first,  two 
installment*  before  he  wan  to  receive  a  conveyance.  He  cho  e.  as  re.-|K?i-ts 
thin  portion  of  the  consideration,  to  rely  on  the  covenants  of  the  vendor  (in 
the  title  bond)  to  compel  the  execution  of  a  deed.  It  is  no  excuse  that  the 
latter  has  now  no  existing  capacity  to  make  a  {food  title.  It  will  lie  enough 
if  he  I-..-  the  title  when  the  defendant,  has  the  right  to  demand  a  conveyance. 
He  may  require  a  |>«Tfe«t  title  In-fore  he  can  be  called  on  to  convey."  Citing 
Sage  V.  Kanney,  '2  Wend.  ( N*.  Y.)  532. 


KECOVElt  OU   DETAiA'   PUKC11ASE  MONEY  ON   FAlLUitE  OF  TITLE       6G7 

and  convey  the  premises  to  whom  he  chooses,  and  the  purchaser 
cannot,  upon  such  conveyance,  recover  back  any  of  the  payments 
made.  The  purchaser  by  his  conduct  forfeits  what  has  been 
paid.55 

Where  the  purchase  money  is  payable  in  installments,  and  the 
vendor  accepts  a  payment  after  all  the  installments  are  due,  he 
thereby  waives  his  right  to  put  the  purchaser  in  default  and  to 
declare  a  forfeiture.  In  such  case  payment  of  the  purchase 
money  becomes  a  dependent  and  concurrent  condition,  and  the 
vendor  must  tender  a  deed  before  he  can  declare  a  forfeiture.56 

The  purchaser  cannot  be  put  in  default  until  the  vendor  has 
complied  with  his  agreement  to  furnish  an  abstract  of  title;  and 
the  burden  devolves  on  the  vendor  to  show  waiver  of  such  agree- 
ment by  the  purchaser.57 

We  have  seen  that  in  cases  in  which  the  payment  of  the  purchase 
money  is  not  by  the  express  terms  of  the  contract  made  a  condition 
precedent  to  the  right  of  the  purchaser  to  demand  a  conveyance  of 
an  indefeasible  title,  no  such  payment?  or  tender  of  payment  need 
be  made  as  a  condition  precedent  to  the  right  to  rescind  upon  an 
absolute  and  undisputed  failure  of  the  title.08  This  rule  applies 
as  well  where  the  purchaser  has  only  an  "option"  to  purchase 
as  where  the  purchase  has  been  actually  made.59 

§  254.  OFFER  TO  RESCIND.  As  a  general  rule  the  action  to 
recover  back  the  purchase  money  on  failure  of  the  title,  or  a  de- 
fense of  an  action  to  recover  the  purchase  money  on  the  same 
grounds,  cannot  be  maintained  by  the  purchaser  unless  he  has 
given  notice  to  the  vendor  of  his  intention  to  rescind,  and  has 
offered  to  surrender  whatever  he  has  received  under  the  contract.60 

53  Rounds  v.  Baxter,  4  Me.  454;  Seymour  v.  Dennett,  14  Mass.  266. 

"Boone  v.  Templeman,  158  Cal.  290,  110  Pac.  947,  139  Am.  St.  Rep.  12G. 
Hayt  v.  Bentel,  164  Cal.  680,  130  Pac.  432. 

"Liebling  v.  Renfer,  211  111.  App.  370. 

M  Ante,  this  section. 

69  Burke  v.  Davies,  85  Cal.  110. 

.•°1  Sugd.  Vend.  (14th  ed.)  243;  2  Warvelle  Vend.  883;  Herbert  v.  Stan- 
ford, 12  Ind.  503,  citing  Pope  v.  Wray,  4  M.  &  W.  451;  McQueen  v.  Statt 
Bank,  2  I  ml.  413,  which  were  all  cases  of  sales  of  personal  property.  Havens 
v.  Goudy,  1  Ohio,  449;  Williams  v.  Thomas,  7  Kulp  (Pa.  Com.  PL),  371; 
Higley  v.  Whittaker,  81  Ohio,  201;  Mkillins  v.  Bloomer,  11  Iowa,  360;  Carney 
v.  Newberry,  24  111.  203,  case  of  personal  property. 


668  MARKETABLE   TITLE   TO   HEAL   ESTATE. 

The  reason  of  the  rule  is  that  the  vendor  must  be  given  an  oppor- 
tunity to  remove  objections  to  the  title  and  to  perform  the  contract 
on  his  part.  It  has  been  held,  however,  that  if  the  purchaser 
did  not  take  possession  and  has  received  nothing  under  the  con- 
tract, he  may  recover  back  or  detain  the  purchase  money  without 
an  offer  to  rescind.'1 

§  255.  PLEADING  AND  PROOF.  It  has  been  held  that  the 
purchaser  seeking  to  recover  back  or  detain  the  purchase  money 
must  set  forth  in  his  pleadings  facts  showing  want  of  title  in  his 
vendor,  and  that  a  general  averment  that  the  title  is  bad  is  insuffi- 
cient.62 But  if  the  contract  be  executory  and  the  objection  to  tin- 
title  is  that  it  is  doubtful  or  unmarketable,  the  better  opinion 
seems  to  be  that  the  burden  of  proof  is  on  the  vendor  to  show 
prima  facie  that  the  title  is  good.63  But,  obviously,  the  vendor 
cannot  be  compelled  to  show  the  non-existence  of  any  and  every 
fact  which  might  invalidate  his  title,  for  there  would  be  prac- 
tically no  end  to  such  an  inquiry.  He  could  hardly  be  compelled 
to  offer  proof  of  the  competency  of  every  grantor  in  his  chain  of 
title.  Having  shown  a  record  title  free  from  objection  on  its 
face,  the  burden  shifts  to  the  purchaser,  who  should  then  point 
out  the  defect  of  which  he  complains.64 

The  purchaser  cannot,  on  appeal  from  a  judgment  against  him 
for  the  purchase  money,  object  that  the  title  to  the  estate  was 
defective  or  incumbered,  unless  he  made  that  defense  in  the  court 
below.65 

"Herbert  v.  Stanford,  12  Ind.  503,  and  cases  cited  mipra. 

"Walker  v.  Towns,  23  Ark.  147;  Copeland  v.  Lawn,  10  Mo.  206.  Tn  an 
action  to  recover  purchase  money,  a  plea  that  the  vendor  had  no  title  when 
IIP  \va«  required  to  convey,  and  that  the  premises  were  incumbered  by  a 
niortjrape,  is  bad  for  duplicity.  Camp  v.  Morse,  5  Den.  (N.  Y.)  161. 

"Nefrley  v.  Lindsey.  67  Pa.  St.  217,  5  Am.  Rep.  427,  SHARSWOOD,  J.,  saying: 
"  HIIW  can  a  defendant  (purchaser)  show  defects  in  the  plaintiff's  title  mile-* 
it  i-  produced  to  him.  It  is  not  enough  to  say  that  he  may  resort  to  the 
records.  He  must  have  some  clue  to  trace  it  there.  Besides,  there  are  many 
-*ary  facts  as  to  which  the  records  will  give  him  no  information,  MK-II 
.,-  dew-cut.-'  iindtff  tli.'  int.-~t.it.-  la\\~.  the  death  of  truants  for  life,  and  «.th.-r- 
of  a  uimilnr  kind." 

••Ante,  |  117.  Hollifteld  v.  Landnim,  (Tex.  Civ.  App.)  71  S.  W.  Rep.  970, 
•  •iiiii^  tlie  text. 

-vih  v    i:Kle.  1  Watte  4  S.  (Pa.)  4«0. 


RECOVER  OR  DETAIL   PURCHASE  MOSEY  ON  FAILURE  OF  TITLE       669 

The  purchaser  seeking  to  recover  his  deposit  must  allege  in 
his  complaint  that  he  is  ready,  willing,  and  able  to  pay,  and  has 
offered  to  pay  the  purchase  money,  and  that  he  has  demanded 
a  deed  from  the  vendor.66  But  such  allegations  are  not  neces- 
sary when  it  appears  that  there  are  defects  in  the  title  which  were 
not,  on  objection  by  the  purchaser,  removed  by  the  vendor  and 
which  could  not  be  removed  by  him  within  a  reasonable  time.67 

§  255-a.  STATUTE  OF  LIMITATIONS.  The  right  of  the  pur- 
chaser to  recover  the  paid  purchase  money  accrues  when  the 
vendor  tenders  a  deed  and  the  purchaser  rejects  the  deed  because 
of  defects  in  the  title ;  and  the  Statute  of  Limitations  begins  to  run 
at  that  time.68 

••Snowden  v.  Derrick,   14  Cal.  App.  309,   111  Pac.  757;  Kister  v.  Pollak, 
109  N.  Y.  Supp.  204,  125  App.  Div.  226. 
^Snowden  v.  Derrick,  14  Cal.  App.  309,  111  Pac.  757. 
"Reed  v.  Sefton,  11  Cal.  App.  88,  103  Pac.  1005. 


CHAPTER  XXV. 

OF  THE  OBLIGATION  OF  THE  PURCHASER  TO  RESTORE  THE  PREM- 
ISES TO  THE  VENDOR, 

GENERAL    PRINCIPLES.      $   2f>6. 

VENDOR  MUST  BE  PLACED  IN  STATU  QUO.     §   257. 

RESTORATION  OF  PREMISES  A  CONDITION  PRECEDENT  TO 
RESCISSION.  §  258. 

RULE  IN  PENNSYLVANIA.      §   259. 

ESTOPPEL  OF  PURCHASER  TO  DENY  VENDOR'S  TITLE.     §   259-a. 

RESTORATION  OF  THE  PREMISES  IN  CASES   OF  FRAUD.      8   260. 

WHEN  PURCHASER  NEED  NOT  RESTORE  THE  PREMISES.  PUR- 
CHASER'S LIEN.  §  261. 

OTHER   EXCEPTIONS.      §   262. 

RESTORATION  OF  THE  PREMISES  WHERE  THE  CONTRACT  IS 
VOID.  §  263. 

§  25G.  GENERAL  PRINCIPLES.  The  next  cardinal  rule  which 
we  shall  consider  as  controlling  the  rights  of  the  parties,  when  the 
purchaser  seeks  to  avoid  the  contract  on  failure  of  the  title,  is  as 
follows: 

PROPOSITION  II.  A  purchaser  of  lands  in  undisturbed  posses- 
sion cannot,  as  a  general  rule,  while  the  contract  is  executory, 
recover  bad'  the  purchase  money  on  failure  of  the  title,  or  resist 
the  payment  thereof,  without  restoring,  or  offering  to  restore,  the 
premises  h>  flic  vendor,  and  placing  him  in  statu  quo.1 

1  1  Stijjd.  Vend.  in.  p.  407,  472  (6th  Am.  ed.)  ;  Nicnlsnn  v.  Wadsworth,  2 
Swaiift.  365;  \Vickham  v.  Ernest,  4  Mndd.  34:  Young  v.  Sincomns,  1  Younpe, 
275;  Tindal  v.  Cbbham.  2  Myl.  &  K.  385;  Cope  v.  William*.  4  Ala.  362; 
Donaldson  v.  Waters.  30  Ala.  175:  Lett  v.  Brown,  56  Ala.  550;  Wade  v. 
Killoiu/h,  3  Stew.  &  P.  (Ala.)  431;  Georpe  v.  Stockton,  1  Ala.  136;  Clemens 
v.  I  ...--in-.  1  Ala.  622;  Stone  v.  Cover,  1  Ala.  287;  Tankcrsly  v.  Graham.  8 
Ala.  247;  HelvenMtein  v.  Hijrpanon.  35  Ala.  251);  Ead«  v.  Murphy.  52  Ala.  520; 
Svoly  v.  Scott.  56  Ala.  555;  Union  Stave  Co.  v.  Smith.  116  Ala.  416,  22 
So.  Rep.  275;  Pray  v.  Capps.  27  Ark.  160;  Haynes  v.  White.  55  Cal.  30; 
Hi«-k*  v.  Lovell.  64  Cal.  29,  41)  Am.  Rep.  679,  27  Par.  Rep.  942:  Gate*  v. 
M.Uan,  70  Cal.  42.  11  Pac.  Rep.  480;  Hannan  v.  McNickle.  82  Cal.  122,  23 
Pac.  Rep.  271 ;  Rhorer  v.  Bila,  83  Cal.  54,  23  Pac.  Rep.  274;  Worley  v.  North- 
cot  t,  91  Oil.  512.  27  Pac.  Rep.  767;  Booth  v.  SaflV>ld,  46  Ga.  278;  Cherry 
v.  DaviH,  59  Ga.  454;  Stimmerall  v.  Craham,  62  Ga.  720;  Preston  v.  Walker. 
109  Ga.  290,  34  S.  E.  Rep.  571:  Mnrtin  v.  Chamber^  84  III.  570;  Long  v. 
Saunderx,  S8  111.  187;  (>Hborn  v.  Dudd.  8  Bl.  (Ind.)  467;  Wright  v.  Blackley, 

[670] 


OBLIGATION  OF  PURCHASER  TO  RESTORE  PREMISES  TO  VENDOR.       671 

This  proposition  is  founded  upon  the  plainest  principles  of 
equity.  The  purchaser  cannot  say  to  the  vendor  "  our  contract  is 
at  an  end,  but  I  shall  continue  to  occupy  the  premises  until  I  have 
no  further  use  for  them."  :  If  the  rule  were  otherwise  the  pur- 
chaser might  retain  the  possession  until  the  Statute  of  Limitations 
should  bar  the  rights  of  the  adverse  claimant,  and  thus  acquire  the 
estate  without  paying  any  of  the  purchase  money.3  SoJeng  as  the 
purchaser  retains  possession  of  the  premises,  with  notice  of  ob- 
jection to  the  title,  he  is  looked  upon  as  waiving  the  right  to  re- 
scind.4 Another  reason  why  the  purchaser  cannot  sue  to  recover 

3  Ind.  101;  Wiley  v.  Howard,  15  Ind.  169;  Dunn  v.  Mills  (Kan.),  79  Pao. 
Rep.  146,  502i;  Reeve  v.  Downs,  22  Kan.  330;  Bodley  v.  McCord,  4  J.  J. 
Marsh.  (Ky.)  483;  Peebles  v.  Stephens,  3  Bibb  (Ky.),  324,  6  Am.  Dec.  660; 
Childs  v.  Lockett,  107  La.  270,  31  So.  Rep.  751;  Hill  v.  Samuel,  31  Miss.  307; 
Shipp  v.  Wheless,  33  Miss.  647 ;  Holladay  v.  Menefee,  30  Mo.  App.  307 ;  Davis 
v.  Watson,  89  Mb.  App.  15;  More  v.  Smedburg,  8  Paige  Ch.  (N.  Y.)  600; 
Gale  v.  Nixon,  6  Cow.  (N.  Y.)  445;  Lewis  v.  McMillan,  41  Barb.  (X.  Y.) 
420;  Wright  v.  Delafield,  23  Barb.  (N.  Y.)  498;  Tom.pkins  v.  Hyatt,  28 
N.  Y.  347;  Sayre  v.  Mohney,  30  Oreg.  238,  47  Pac.  Rep.  197;  Garvin  v. 
Cohen,  13  Rich.  L.  (S.  C.)  153;  Kelly  v.  Kershaw  (Utah),  16  Pao.  Rep.  488; 
Florence  Oil  Co  v.  McC'andless,  26  Colo.  534,  58  Pac.  Rep.  1084;  Horton  v. 
Arnold,  18  Wis.  212,  where  buildings  on  the  premises  had  been  destroyed  by 
fire,  In  a  few  cases,  in  which  the  contract  had  not  been  executed  by  a  con- 
veyance, it  seems  to  have  been  held  that  the  purchaser  might  detain  the  pur- 
chase money  on  failure  of  the  title,  though  he  had  not  been  evicted  from 
the  premises  nor  had  surrendered  the  possession  to  the  vendor.  Lewis  v. 
McMillan,  31  Barb.  ('N".  Y.)  395;  reversed  on  motion  for  new  trial,  41  Barb. 
(N.  Y.)  420;  In  Hood  v.  Huff,  2  Tread.  (S.  C.)  159  the  contract  had  been 
executed.  In  Feemster  v.  May,  13  Sm.  &  M.  (Miss.)  275,  53  Am.  Dec.  83.  and 
Wiggins  v.  McGimpsey,  13  Sm.  &  M.  (Miss.)  532,  the  purchaser  was  held 
entitled  to  detain  the  purchase  money,  though  he  was  undisturbed  in  the 
possession,  on  the  ground  that  the  contract  required  the  vendor  to  tender  a 
deed  conveying  a  good  title  before  the  purchaser  could  be  compelled  to  pay 
the  purchase  money.  See  ante,  §  253. 

Recent  cases:  Francis  v.  Shrader,  (Cal.  App.)  177  Pac.  168;  Russell  v. 
Hawxhurst,  (Cal.  App.)  187  Pac.  146,  citing  Worley  v.  Nethercott,  91  Cal. 
512,  27  Pac.  767,  25  Am.  St.  Rep.  209;  Halle  v.  Smith,  128  Cal.  415,  60  Pac. 
1032;  Powell  v.  Hunter,  257  Mo,  440,  165  S.  W.  1009;  Allen  v.  Adams,  162 
Iowa  300,  143  N.  W.  1092;  Gregory  v.  Keenan,  256  Fed.  949. 

2  More  v.  Smedfourgh,  8  Paige  (N.  Y.),  600,  606. 

3 Congregation  v.  Miles,  4  Watts  (Pa.),  146. 

4  Bellamy  v.  Ragsdale,  1  B.  Mon.  (Ky.)  293';  Thompson  v.  Dulles,  5 
Rich.  Eq.  (S.  C.)  370;  Hale  v.  Wilkinson,  21  Grat.  (Va.)  75;  Rhorer  v. 
Bila,  83  Cal.  51;  Brumfield  v.  Palmer,  7  Bl.  (Ind.)  227. 


072  MARKETABLE   TITLE   TO   REAL   ESTATE. 

back  the  purchase  money  while  he  is  in  possession  of  the  land  is, 
that  such  a  suit  is  a  disaffirmance  of  the  contract,  and  he  cannot 
disaffirm  the  contract  and  at  the  same  time  have  its  benefit  by 
retaining  possession.5  And  when  the  vendee  is  sued  for  the  pur- 
chase money  at  law,  and  the  title  has  failed,  he  cannot,  even  under 
a  statute  allowing  the  interposition  of  equitable  defenses  in  actions 
at  law,  disaffirm  the  contract  in  part  by  detaining  a  part  of  the 
purchase  money,  and  at  the  same  time  insist  upon  a  conveyance  of 
the  lands.  lie  must  make  his  election  between  his  right  to  have  a 
specific  performance  of  the  contract,  and  his  right  to  have  damages 
for  a  breach  thereof,  or  his  right  to  surrender  the  possession  and 
to  recover  back  so  much  of  the  purchase  money  as  he  may  have 
paid.' 

This  rule  is  also  an  excellent  practical  test  of  the  bona  fi<1rs  <»f 
the  purchaser  in  raising  objections  to  the  title  when  no  adverse 
claimant  is  threatening  his  possession.  If,  under  such  cirou in- 
stances, he  does  not  offer  to  restore  the  premises  to  the  vendor,  it 
will,  in  most  cases,  be  found  that  his  objection  are  nice  and  cap- 
tious and  have  been  searched  out  for  the  purpose  of  gaining  time, 
when  sued  for  the  purchase  money. 

But  while  the  purchaser  cannot  recover  back  the  piirchase  money 
so  long  as  he  retains  the  possession  of  the  premises,  it  is  not  neces- 
sary that  he  be  evicted  by  an  adverfee  claimant  before  he  can  assert 
that  right.  He  may,  at  any  time,  unless  he  has  waived  his  objec- 
tions to  the  title  or  unless  the  vendor  has  a  ri<rht  to  perfect  tin- 
title,  deliver  up  the  possession  to  the  vendor  and  demand  a  return 
of  the  purchase  money,  paid,  or  defend  an  action  for  that  which 
remains  unpaid.7 

While  the  purchaser  cannot,  where  he  has  elected  to  rescind  the 
contract,  recover  back  the  p\nvha>e  money  without  restoring  the 
premises  to  the  vendor,  it  has  been  held,  as  we  have  seen,  that  he 
may  elect  to  affirm  the  contract,  keep  the  ]»ivmi-i  |f  ;md  recover  the 

•Hurst  v.  Mean*,  2  Swan  (Tenn.),  604. 

•Watkins  v.   Hopkins,    13   Grat.    (Va.)    743;    Shillrtt    v.    Orange   Humane 

•  ty.  7  Grat.  (Va.)  297. 

'2  Siigd.  Vend.  (7th  Am.  ed.)  126,  not«.  Timm*  v.  Shannon,  19  Md.  296. 
81  Am.  Dec.  662. 


OBLIGATION  OF  PURCHASER  TO  RESTORE  PREMISES  TO  VENDOR.       673 

purchase  price  as  damages,  if  the  title  has  completely  failed.8  If 
this  decision  be  sound,  the  rule  that  the  purchaser  seeking  to 
recover  back  the  purchase  money  must  restore  the  premises  to  the 
vendor  is  of  slight  importance,  as  it  might  be  evaded  by  a  mere 
change  in  the  purchaser's  pleadings.  Of  course  these  observations 
do  not  apply  where  the  purchaser  seeks  to  detain  the  purchase 
money  on  failure  of  the  title,  for  as  a  general  rule  the  purchaser 
can  maintain  no  action  for  inability  to  convey  a  good  title  unless 
he  has  paid  the  purchase  money  in  full.9 

If  the  purchaser  refuse  to  pay  the  purchase  money  on  the  ground 
that  the  title  is  bad,  and  at  the  same  time  refuse  to  restore  the 
premises,  he  is  liable  to  an  action  of  ejectment  by  the  vendor,  and 
may  be  evicted.10  And  the  fact  that  he  has  made  expensive  im- 
provements on  the  premises  will  not  justify  him  in  refusing  to 
give  up  the  possession.  He  should  not  be  encouraged  to  make 

8  Ante,  §  3.    Fletcher  v.  Button,  6  Barb.   (N.  Y.)   646. 

•Ante,  §  1.     Clarke  v.  Locke,  11  Humph.  (Tenn.)   300. 

10 1  Sugd.  Vend.  m.  p.  (14th  Eng.  ed.)  347;  Gates  v.  McLean,  70  Cal.  42; 
Garvey  v.  La  Shells,  151  Cal.  52,  91  Pac.  498;  Gervaise  v.  Brooking,  156 
Cal.  103,  103  Pac.  329,  distinguishing  Haile  v.  Smith,  128  Cal.  415,  60 
Pac.  1032.  See  generally,  as  to  the  right  of  the  vendor  to  maintain  ejectment 
against  a  purchaser  who  refuses  to  pay  the  purchase  money,  Jackson  v.  Mon- 
crief,  5  Wend.  (N.  Y.)  26;  Hawn  v.  Norris,  4  Binn.  (Pa.)  77;  Mitchell  v. 
De  Roche,  1  Yeatesi  (Pa.),  12;  Marlin  v.  Willink,  7  S.  &  R.  (Pa.)  297;  Brown- 
ing v.  Estes,  3  Tex.  462,  49  Am.  Dec.  760;  Whiteman  v.  Castleburg,  8  Tex. 
441.  In  Harle  v.  McCoy,  7  J.  J.  Marsh.  (Ky.)  318,  23  Am.  Dec.  407,  it  was 
said  that  mere  non-payment  of  the  purchase  money  without  previous  notice 
of  an  intent  to  rescind,  would  not  justify  ejectment  against  the  purchaser. 
The  rule  in  this  respect  has  been  nowhere  more  clearly  or  succicntly  stated 
than  in  the  head  note  to  the  case  of  Worley  v.  Nethercott,  91  Cal.  512,  27 
Pac.  Rep.  767,  which  is  as  follows:  "A  purchaser  of  land  in  possession  thereof 
under  a  contract  of  sale,  by  the  terms  of  which  the  vendor  is  to  give  a 
warranty  deed  of  the  property,  conveying  a  good  and  perfect  title  thereto, 
cannot,  upon  the  vendor's  failure  and  inability  to  convey  a  good  and  perfect 
title,  retain  both  the  land  and  the  purchase  money  until  a  perfect  title  shall 
be  offered  him ;  but  he  must  pay  the  purchase  price  according  to  the  contract 
and  receive  such  title  as  the  vendor  is  able  to  give,  if  he  chooses  to  retain 
the  possession1  of  the  land,  or  he  may  rescind  the  contract,  restore  the  pos- 
session to  the  vendor  and  recover  the  purchase  money  paid,  together  with  the 
value  of  his  improvements,  after  deducting  therefrom  the  fair  rental  value 
of  the  premises;  and  if  he  fails  and  refuses  to  adopt  either  coupse,  he  is 
liable  to  an  action  of  ejectment  by  the  vendor. 

85 


674  MAUKETABL.K   TITLE   TO   KEAL   ESTATE. 

improvements  while  the  purchase  money  is  unpaid.11  But  it  has 
been  held  that  if  the  purchaser  in  possession  refuse  to  pay  the 
purchase  money  on  the  ground  that  the  title  is  defective,  and  the 
vendor,  without  notifying  the  purchaser  of  his  intention  to  rescind 
the  contract,  resell  the  premises  to  a  third  party,  the  original  pur- 
chaser, if  sued  in  ejectment  by  the  subsequent  purchaser,  may  set 
up  the  failure  of  the  vendor's  title  as  a  defense,  if  the  case  be  one 
in  which  the  vendor  is  not  entitled  to  claim  the  purchase  money 
already  paid  as  aforesaid,  or  in  which,  by  reason  of  moneys  ex- 
pended in  improvements,  or  from  other  causes,  it  would  be  in- 
equitable to  deprive  the  purchaser  of  the  possession."  We  have 
already  seen  that  the  purchaser  cannot,  while  the  contract  is 
executory,  get  in  an  outstanding  title  and  set  up  the  same  against 
the  vendor  when  sued  for  the  purchase  money  or  the  possession. 
lie  must  surrender  the  possession  before  he  will  be  permitted  to 
litigate  or  dispute  the  vendor's  title.14 

The  mere  failure  of  the  vendor  to  convey,  for  want  of  title,  at 
the  time  stipulated  by  the  contract,  is  not  such  a  rescission  of  the 
contract  as  will  justify  the  purchaser  in*  detaining  the  purchase 
money  without  giving  up  the  possession  of  the  premises.  An 
agreement  to  convey  within  a  reasonable  time  after  the  sale  is  not 
a  condition  precedent  to  the  right  of  the  vendor  to  maintain  an 
action  on  a  bond  for  the  purchase  money  payable  at  a  day 
certain.14 

§  257.  VENDOR  MUST  BE  PLACED  IN  STATU  QUO.  The  pur- 
chaser must  not  only  restore  the  premises  to  the  vendor  as  a  con- 
dition precedent  to  rescission,  tout  he  must  return  them  in  as  good 
condition  as  they  were  when:  received.  The  vendor  has  a  right  to 
demand  that  he  be  placed  in  the  same  condition  in  which  he  was, 
with  respect  to  the  premises,  before  the  contract  was  made.18  But 

"  Cherry  v.  Davin,  59>  Ga.  454 ;  Gate*  v.  Mol^ean,  70  Cal.  42. 

"  F.rtell  v.  Cole,  52  Tex.  170. 

MAnt«,  M  202,  219.  laler  v.  E^er*,  17  Mo.  332;  Harvey  v.  Mon-fa,  63  Mo. 
475;  Perehinfr  v.  Canfi.-M.  70  M...  140. 

14  Stone  v.  Oover,  1  Ala.  287. 

uPo*t.  oh.  30,  I  279.  Guttuchlick  v.  Bank,  5  Crunch  (C.  C.  U.  8.),  435. 
In  Concord  Bank  v.  Gregg.  14  X.  H.  Ml.  a  mill  on  the  purchased  premise* 
wan  destroyed  after  it  had  lu-cn  conveyed  to  the  purchaser,  hut  the  lorn*  hav 
ing  occurred  without  fault  on  hi*  pnrt,  and  there  lieing  nothing  to  nhow  that 


OBLIGATION  OF  PURCHASER  TO  RESTORE  PREMISES  TO  VENDOR.       675 

it  has  been  held  that  if  a  state  of  affairs  making  it  impossible  to 
place  the  vendor  in  statu  quo  has  been  produced  by  his  sole  act 
without  the  concurrence,  in  deed  or  will,  of  the  purchaser,  the  rule 
does  not  apply.16  As  a  consequence  of  this  rule  the  purchaser  can- 
not recover  back  or  detain  the  purchase  money  without  accounting 
for  the  use  and  occupation  of  the  land,17  unless  he  is  liable  to 
account  to  the  true  owner  for  the  rents  and  profits.18  In  a  case  of 
an  executed  contract,  as  has  been  seen,19  the  rents  and  profits, 
unless  recoverable  by  the  true  owner,  are  set  off  against  the 
covenantee's  demand  for  interest  on  the  purchase  money.  In 
England  it  has  been  held  that  if  possession  of  the  land  was  de- 
livered to  the  purchaser  the  vendor  could  not  be  put  in  statu  quo 
by  restoring  the  premises  to  him,20  but  this  doctrine  seems  to  have 
gained  no  foothold  in  America,  where  the  right  to  rescind  has 
generally  been  allowed  on  failure  of  the  title,  notwithstanding 
delivery  of  possession  to  the  vendee.21  If,  instead  of  seeking  to 
rescind  the  contract  by  recovering  back  the  purchase  money,  the 
purchaser  affirm  it  by  maintaining  an  action  to  recover  damages 
for  the  vendor's  fraud  in  imposing  a  worthless  title  upon  him, 
the  purchaser  may  recover  without  surrendering  or  offer  to  sur- 
render the  premises.22  If,  in  such  case,  he  had  paid  the  purchase 
money,  the  measure  of  his  damages  would  be  the  difference  between 
the  value  of  the  premises  with  a  good  title  and  their  value  as  the 
title  actually  was. 

the  loss  would  not  have  occurred  if  the  vendor  himself  had  been  in  possession, 
it  was  held  that  he  must  accept  a  reconveyance  of  the  premises.  The  contract 
had  been  rescinded  because  of  fraudulent  representations  by  the  vendor. 

19  Shackelford  v.  Handly,   1  A.  K.  Marsh.    (Ky.)    500,   10  Am.  Dec.  753. 
17Goodloe  v.  Woods,    (W.  Va.)   80  S.  F.   113;   Burrows  v.  Barter,  165  Gal. 

45,  130  Pac.  1050.  The  rule  that  the  vendor's  claim  for  rent  is  balanced  by 
the  purchaser's  claim  for  interest  on  the  paid  purchase  money,  does  not  apply 
\vhere  the  paid  purchase  money  is  not  in  proportion  to  the  value  of  the  use 
of  the  property.  Kilborn  v.  Johnson,  (Tex.  Civ.  App.)  1-64  S.  W.  1108. 

"Collins  v.  Thayer,  74  111.  138;  Whitney  v.  Cochran,  1  Scam.  (111.)  209; 
Anderson  v.  Ohnoutke,  84  Neb.  517,  121  K".  W.  577;  Weitzel  v.  Leyson,  23 
S.  D.  367,  121  N.  W.  868. 

"Ante,  §  172. 

20  Hunt  v.  Silk,  5  East,  449;  Blackburn  v.  Smith,  2  Exch.  783. 

21  Taft  v.  Kessel,  16  Wis.  278. 

23  Stockham  v.  Cheney,  62  Mich.  10. 


67G  MARKETABLE   TITLE   TO   REAL   ESTATE. 

The  purchaser,  of  course,  cannot  recover  back  or  detain  the  pur- 
chase money  if  he  has  disabled  himself  from  placing  his  vendor  in 
statu  quo  by  conveying  the  premises  to  a  stranger.23 

§  258.  RESTORATION  OF  PREMISES  A  CONDITION  PRECE- 
DENT TO  RESCISSION.  It  has  been  held  that  a  purchaser  of 
lands  seeking  rescission  of  the  contract  at  law  by  recovering  back 
the  purchase  money,  must  restore  or  offer  to  restore  whatever  he 
has  received  on  account  of  the  contract  as  a  condition  precedent  to 
the  maintenance  of  the  action.2*  "  In  equity,"  the  court  observed 
in  the  same  case,  "  a  different  rule  prevails,  as  the  action  at  law 
proceeds  upon  a  rescission  of  the  contract,  while  in  equity  the 
action  proceeds  for  a  rescission  of  the  contract."  Elsewhere, 
under  statutes  allowing  courts  of  law  to  administer  equitable 
relief,  it  was  held  that  the  judgment,  where  the  purchaser  seeks 
to  detain  the  purchase  money,  could  be  so  framed  as  to  require 
the  purchaser  to  surrender  the  land  before  he  can  have  the  benefit 
of  the  verdict.25  Where,  however,  courts  of  law  have  no  jurisdic- 
tion to  direct  a  surrender  of  the  premises  before  the  judgment  or 
verdict  shall  become  operative,  it  is  apprehended  that  the  pur- 
chaser's action  or  defense,  as  the  case  may  be,  must  fail,  unless 
he  shows  that  he  has  surrendered  or  offered  to  surrender  the 
premises  to  the  vendor.26 

"Rodgers  v.  Olshoffsky.  110  Pa.  St.  147,  2  Atl.  Rep.  44;  McKeen  v.  Beaup- 
land,  33  Pa.  St.  488;  Strong  v.  Lord,  107  111.  20.  Where  the  purchaser's  note 
contained  an  indorsement  that  it  was  not  to  lie  paid  unless  the  title  proved  to 
he  pood,  and  the  purehaser  resisted  payment  on  the  ground  that  the  title  to  a 
part  of  the  land  had  failed,  hut  did  not  seek  to  rewind  the  contract,  it  wa* 
held  thnt  he  could  not  he  compelled  to  pay  the  note  until  the  title  should  he 
made  pood,  though  he  had  conveyed  away  a  p«rt  of  the  land.  Smeich  v. 
Herbst,  135  Pa.  St.  530.  19  Atl.  Rep.  1>50. 

»*  Johnson  v.  tturnside.  (S.  D.)  52  N.  W.  Rep.  1057. 

"Sizemore  v.  Pinkston,  51  Oa.  3JW.  In  Taft  v.  Kessel,  16  Wis.  207,  it  was 
said :  "  There  seems  to  he  no  ohjection  to  a  rule  allowing  a  purchaser,  brought 
into  court  a*  a  defendant,  to  claim  a  rescission  and  a  recovery  of  the  pur- 
chase money  paid,  without  a  previous  surrender  of  the  possession,  leaving  the 
matter  to  he  disposed  of  by  the  judgment,  which  ran  be  so  framed  ns  to 
adjust  the  rights  of  both  parties  upon  equitable  terms."  This  wan  an 
"action"  to  enforce  a  contract  for  the  sale  of  lands  (practically  a  suit  in 
equity),  but  it  is  believed  that  the  above  observations  of  the  court  apply  with 
equal  force  In  an  action  at  law  by  or  against  the  purchaser  in  which  he 
seeks  rescission  of  the  contract. 

"Young  v.  Harris  2  Ala.   (\.  S.)    10ft.     In  an  action  to  recover  back  the 


OBLIGATION  OF  PURCHASER  TO  RESTORE  PREMISES  TO  VENDOR.       677 

§  259.  EULE  IN  PENNSYLVANIA.  In  Pennsylvania  the  rule 
that  the  purchaser  cannot  keep  both  the  estate  and  the  price  of  it 
is  declared,  but  instead  of  requiring  the  purchaser  to  surrender  the 
estate  as  a  condition  precedent  to  the  maintenance  of  an  action  to 
recover  back  the  purchase  money,  it  is  there  held  that  the  vendor 
must  take  the  initiative,  and  return  the  purchase  money  if  he  finds 
that  he  cannot  make  title,  and  then,  if  the  purchaser  refuses  to  give 
up  the  possession,  turn  him  out  by  action  of  ejectment.27  The  ap- 
plication of  this  doctrine  in  an  action  in  which  the  purchaser  seeks 
either  to  recover  back  the  purchase  money  or  to  obtain  that  which 
is  unpaid,  would  seem  to  be  fraught  with  injustice  to  the  vendor, 
for  he  would  be  thereby  forced  to  the  expense  and  annoyance  of 
another  and  independent  action  to  do  that  which  might  be  accom- 
plished in  one.  It  has  been  held  in  the  same  State,  in  several 

purchase  money  on  failure  of  the  title,  if  the  evidence  does  not  show  who  is 
in  possession,  the  court,  on  appeal,  will  presume  that  the  purchaser  sur- 
rendered the  possession  before  bringing  the  action.  Pino  v.  Beckwith,  1  N. 
Mex.  19. 

27  In  Gans  v.  Renshaw,  2  Pa.  St.  34,  44  Am.  Dec.  152,  it  was  held  that  a 
purchaser,  by  articles  of  agreement,  was  not  bound  to  restore  the  possession 
to  the  vendor  and  give  up  the  contract  before  he  could  make  objections:  to  the 
title  in  an  action  brought  for  the  purchase  money.  A  tender  of  a  conveyance 
with  warranty  against  incumbrances  had  been  rejected  by  the  purchaser  on 
the  ground  that  the  premises  were  incumbered  by  certain  liens,  and  the 
vendor  brought  an  action  for  the  purchase  money.  The  opinion  of  the  court 
was  delivered  by  GIBSON,  C.  J.,  who  said:  "It  is  said  it  was  his  (the  pur- 
chaser's) duty,  if  the  title  was  not  such  as  he  bargained  for,  to  give  back 
the  possession  and  declare  his  determination  to  abandon  the  contract.  And 
for  not  having  done  sio  he  is  to  pay  a  sound  price  for  an  unsound  title! 
*  *  *  But  whose  business  was  it  to  move  towards  a  rescission  of  the  con- 
tract? !Nbt  the  defendant's  He  was  at  liberty  to  fold  his  arms  and  await 
the  movements  of  the  plaintiff,  whose  cue  it  was  to  take  the  next  step  towards 
an  abandonment  or  a  completion  of  the  purchase.  It  was  not  for  the  defend- 
ant to  know  what  title  the  plaintiff  should  be  able  to  make  when  he  should 
come  to  tender  the  conveyance.  The  plaintiff's  power  to  perform  his  part 
\vas  best  known  to  himself,  and  if  he  found  the  defect  in  his  title  to  be 
irreparable  what  was  he  to  do?  Certainly,  not  to  bring  an  action  for  the 
purchase  money  in  order  to  force  a  rotten  title  on  the  purchaser  for  a  good 
one,  and  this  on  the  basis  of  his  own  default.  It  would  be  his  duty  to  apprise 
the  vendee  of  his  inability,  restore  whatever  had  been  paid,  and  demand  the 
possession.  In  that  case  equity  would  not  enjoin  him  from  proceeding  on  his 
legal  title  to  get  back  the  property,  but  not  to  compel  the  vendee  to  pay  for 
what  he  did  not  get."  See,  also,  Nicoll  v.  Carr,  35  Pa.  St.  381. 


678  MARKETABLE   TITLE   TO   REAL   ESTATE. 

cases,  that  the  purchaser  cannot,  on  failure  of  the  title,  recover 
back  the  purchase  money  without  offering  to  return  the  premises 
to  the  vendor.28 

§  2,")0a.  Estoppel  of  Purchaser  to  Deny  Vendor's  Title.  The 
general  rule  is  that  a  vendee,  in  possession  of  the  premises  under 
the  contract,  is  estopped  to  deny  the  title  of  his  vendor;  that  is 
to  say,  he  cannot  buy  in  an  outstanding  title  to  the  property  and 
set  up  such  title  as  against  the  vendor  without  offering  to  pay 
the  contract  price  less  the  cost  of  the  outstanding  title.29  But 
this  rule  does  not  apply  where,  at  the  time  of  the  contract,  he 
was  already  in  possession  as  owner  claiming  title,  and  his  entry 
was  not  under  the  vendor.  He  must  have  been  put  in  possession 
on  the  faith  of  the  contract.30  Nor  does  the  rule  apply  in  a  case 
in  which  the  sale  was  induced  by  the  fraudulent  representations 
of  the  vendor.81 

§  200.  RESTORATION  OF  THE  PREMISES  IN  CASES  OF  FRAUD. 
The  mere  fact  that  the  vendor  was  guilty  of  fraud  in  respect  to  the 
title  would  not,  it  seems,  justify  the  purchaser  in  retaining  both 
the  land  and  the  purchase  money.32  There  are  cases  which,  at  the 

"Morrow  v.  Rees,  69  ?a.  St.  368;  Pearnoll  v.  Chapin,  8  Wright  (Pa.),  9: 
Babt-oc-k  v.  Case,  61  Pa.  St.  427,  100  Am.  Rep.  654;  Wright  v.  Wright.  12 
Pa.  Co.  Ct.  Rep.  238. 

"Post,  notes  32,  33,  §  308;  29  Am.  Si  Kng.  Kncyc.  of  L.  706;  Tyler  on 
Ejectment,  559;  Chavez  v.  Bergere,  231  U.  S.  482,  34  S.  C.  144,  58  L.  K.I. 
326;  Galloway  v.  Finley,  12  Pet.  293,  9  L.  Ed.  107W;  Roller  v.  Effinger, 
88  Va.  641 ;  Harrison  v.  Boyer,  72  W.  Va.  632,  78  S.  E.  787,  46  L.  R.  A. 
(N.  S.)  209;  Lightrfoot  v.  Brower.  133  Ga.  766,  66  S.  E.  1094:  Francis  v. 
Shrader,  (Cal.  App.)  177  Pao.  168;  Bennett  v.  U.  S.  Land,  etc.,  Co.,  16  Ariz. 
44,  141  Pac.  717;  Nance  v.  Rourke,  161  N.  C.  646,  78  S.  E.  757;  Groves  v. 
Whittenberg,  (Tex.  Civ.  App.)  165  S.  W.  889. 

"Green  v.  Couse,  127  N.  Y.  386,  28  N.  K.  l.l.  13  L.  R,  A.  206,  24  Am.  St. 
Rep.  458;   Buffalo  Coal  Co.  v.  Vam-e,  71   W.  Va.   148,  76  S.  E.  177;   Nash- 
ville, etc.,  Ry.  Co.  v.  Proctor,  160  Ala.  450,  49  So.  377;  Groves  v.  \\liitt.  n 
b«rg,  (Tex.  Civ.  App.)    165  S.  W.  861. 

"Post,  |  260. 

"Wimberg  v.  Schwegeman.  97  Ind.  528;  Vance  v.  Shmvcr,  7!>  Ind.  .'ISO: 
Wiley  v.  Howard,  15  Ind.  169;  Vining  v.  Leeman,  45  111.  246;  Whitlock  v. 
Dfiilinger,  59  111.  96;  Laforgo  v.  Matthews,  08  III.  328;  Fratt  v.  Fiske,  7 
Cal.  380;  Lett  v.  Brown,  f>6  Ala.  55O;  Bramnim  v.  Klli-on,  f>  .Junes  Kq.  ( N". 
C.)  435;  Staley  v.  Ivory,  65  Mo.  74;  LIIIM •>  \  I  •  -i^u-mi,  ."I  I.un*.  (N.  Y.) 
196;  Underwood  v.  Parker,  (Ky.)  7  S.  W.  Rep.  626;  Goodin  v.  Decker. 
(Colo.)  32  Pac.  Rep.  832;  Groves  v.  Stouder,  58  Okl.  744,  161  Pac.  239; 


'.-3UOATIOX  OF  PUKCHASElt  TO  KESTOKE  PREMISES  TO  VENDOR.        G79 

first  glance,  might  appear  to  countenance  such  a  doctrine,  but 
upon  closer  examination  it  will  be  found  that  they  establish  noth- 
ing beyond  the  proposition  that  the  purchaser  is  not  obliged  to 
surrender  the  possession,  where  the  title  fails,  as  a  condition 
precedent  to  the  rescission  of  the  contract.  At  law  it  seems  that 
he  would  be  compelled  to  give  up,  or  to  offer  to  give  up,  the  pos- 
session before  trial,  even  where  the  vendor  has  been  guilty  of 
fraud,  except  in  those  States  in  which  courts  of  law  have  the 
power  to  enter  judgment  for  the  purchaser,  conditioned  upon  his 
delivery  of  the  premises  to  the  vendor.33 

Buckingham  v.  Thompson,  (Tex.  Civ.  App.)  135  S.  W.  652;  2  Warvelle  Vend. 
919.  In  Pearsall  v.  Chapin,  44  Pa.  St.  9,  the  court  below  instructed  the  jury 
that  in  a  case  of  fraudulent  representations  the  vendor  had  a  right  to  recover 
back  the  price  without  first  tendering  a  reconveyance.  This  was  reversed  on 
appeal,  the  court  saying:  "If  the  court  has  stated  this  point  correctly  a 
defrauded  vendee  may  recover  back  the  price  without  rescinding  the  contract, 
and  while  retaining  the  price  acquired  by  it,  and,  perhaps,  without  liability 
to  return  it,  since  the  vendor  cannot  allege  his  own  fraud1  in  order  to  reclaim 
it;  he  may  rescind  for  what  he  gave  and  affirm  for  what  he  got,  and  thus  is 
allowed  by  law  to  return  injustice  by  fraud,  and  invited  to  learn  the  art  of 
being  duped  as  a  mode  of  profitable  speculation.  We  do  not  so  understand 
the  law."  In  an  action  to  recover  back  the  purchase  money  on  the  ground 
of  fraud,  the  purchaser  must  show  an  actual  rescission  by  him,  notice  thereof 
to  the  vendor,  and,  as  a  general  rule,  an  offer  to  put  the  vendor  in  statu  quo 
by  returning  the  property,  unless  it  is  utterly  worthless.  Morrow  v.  Rees, 
09  Pa.  St.  372'. 

33  Coffee  v.  Newson,  2  Kelly  (Ga.),  442;  Phenix  v.  Bijelich,  30  Nev.  257, 
95  Pac.  361;  Taft  v.  Kessel,  16  Wis.  297;  Young  v.  Harris,  2  -Ala.  (N.  S.) 
108,  where  it  was  said:  "The  decisions  of  this  court  are  uniform,  when  the 
question  has  arisen  at  law,  that  the  vendee,  while  he  retains  the  possession, 
cannot  refuse  to  pay  the  purchase  money;  otherwise,  it  might  happen  that 
he  would  get  the  land  without  paying  for  it,  as  a  court  of  law  could  exact 
no  condition  from  him  as  the  price  of  affording  its  aid.  But  in  a  court  of 
chancery,  where  the  rights  of  the  parties  can  be  accurately  adjusted,  no  reason 
is  perceived  why  the  vendee,  who  has  been  induced  by  the  fraudulent  repre- 
sentations of  the  vendor,  to  invest  his  money  in  the  purchase  of  land,  should 
be  required,  as  a  prerequisite  to  relief  in  equity,  to  relinquish  possession  of 
the  land,  and  with  it,  it  may  be,  his  only  hope  of  reimbursing  himself.  This 
point  has  not  before  been  presented  to  this  court,  but  we  hesitate  not  to  say 
that  when  one,  by  the  fraudulent  silence  or  fraudulent  representations  of 
another  in  relation  to  material  facts  concerning  the  title  of  land,  the  false- 
hood of  which  he  had  not  the  means  of  ascertaining  and  could  not  have 
ascertained'  by  reasonable  diligence,  is  induced  to  invest  his  money  in  the 
purchase  of  land,  or  has  made  on  the  faith  of  such  purchase,  valuable  and 


680  MARKETABLE   TITLE   TO   REAL   ESTATE. 

But  the  rule  that  the  purchaser  electing  to  rescind  the  contract 
must  restore  the  jxxssession  to  the  vendor,  even  in  a  case  of  fraud, 
does  not  apply  where  the  purchaser  is  already  in  possession  under 
a  prior  purchase,  and  is  induced  to  take  a  quit  claim  from  a  third 
person  who  fraudulently  represents  that  he  has  title  to  the 
premises.  In  such  a  case  the  purchaser  may  refuse  to  pay  a  note 
pven  in  consideration  of  the  quit  claim  without  surrendering  the 
premises  to  the  payee.34  The  rule  that  the  purchaser  cannot  deny 
the  vendor's  title  has  no  application  where  the  purchaser  is  already 
in  possession  when  the  contract  is  made,  and  the  vendor  has  fraudu- 
lently misrepresented  or  concealed  the  state  of  the  title.85 

If  the  vendor  fraudulently  misrepresent  the  state  of  his  title,  it 
is  not  necessary  that  the  purchaser  shall  return  a  title  bond  exe- 
cuted by  the  vendor  before  he  can  be  permitted  to  rescind.  He 
may  rely  upon  such  misrepresentations  as  a  defense  to  an  action 
for  the  purchase  money  without  returning  the  bond.36 

§  261.  WHEN  PURCHASER  NEED   NOT  RESTORE  THE  PREM- 

Es-  PURCHASER'S  LIEN.  The  purchaser  is  not  obliged  to  re- 
turn the  premises  before  suing  to  recover  back  the  purchase  money 
if  the  vendor  refuse  to  receive  them.37  Nor  does  any  such  obliga- 
tion rest  upon  him  if,  through  mistake  or  fraud  on  the  part  of  the 
vendor,  he  purchased  his  own  property.38  The  most  important 

lusting  improvements,  lie  can  have  relief  in  chancery  before,  an  eviction  and 
irithout  an  abandonment  of  the  poa.tcsmon ."  See,  also,  Whitwurth  v.  Stuckey, 
1  Rich.  Kq.  (S.  C.)  40S.  1  Sugd.  Vend.  m.  p.  247.  In  Greenlee  v.  GaintM, 
13  Ala,  108,  48  Am.  Dec.  49,  it  wa»  held  thai  the  purchaser  need  not  surrender 
the  |ii>--i---inM  if  the  fraudulent  vendor  were,  insolvent,  and  the  detention  of 
the  premises  wag  necessary  for  hia  (the  purchaser's)  indemnity. 

"Watson  v.  Kemp,  41  Ga.  586. 

"Hammers  v.  Hannirk,  99  Tex.  412,  7  S.  W.  Rep.  345,  citing  Taylor  land- 
lord &  Tenant,  4 Iff,  514. 

"Coburn  v.  Haley,  57  Me.  347;  Wyman  v.  Heald,  17  Me.  321). 

"  Johnwm  v.  Burnside,  (S.  D.)  52  X.  W.  Hep.  1057:  Elliott  v.  Boaz,  9  Ala. 
772;  Smith  v.  Rnhertwon,  23  Ala.  324;  Culbertson  v.  Blanchard,  79  Tex.  486; 
15  S.  W.  Rep.  700. 

-Phillips  v.  O'Neal,  87  Ga.  727,  13  S.  K.  Rep.  819.  "This,"  «ay»  MV. 
\Va*hl»urn,  "  is  hut  lit  IP  more  than  carrying  out  the  old  idea  of  a  use  raised 
in  favor  of  a  vendee  who  has  paid  the  purchase  money  of  an  estate.  And 
when  the  contract  i-  executory  as  fa««t  an  the  purchase  money  is  paid  in,  it 
i*  a  part  performance  of  nucli  contract,  and  to  that  extent  the  payment 
of  the  money,  in  equity,  transfers  to  the  purchaser  the  ownership  of  a  eorre- 


OBLIGATION  OF  PURCHASER  TO  RESTORE  PREMISES  TO  VENDOR.       681 

exception  to  the  rule,  however,  and  one  which  has  been  recognized 
in  several  of  the  States,  is  that  the  purchaser  need  not  restore  the 
premises  if  it  is  necessary  for  him  to  retain  them  for  his  indemnity, 
where  the  vendor  is  insolvent  or  cannot  be  compelled  to  respond  in 
damages  for  his  breach  of  the  contract.39  In  such  case,  however, 
the  burden  devolves  on  the  purchaser  to  show  that  the  vendor  is 
insolvent  or  unable  to  answer  in  damages.40  The  purchaser  will 
not  be  allowed  to  keep  the  premises  where  the  vendor,  although 
a  non-resident  and  unable  to  make  title,  is  fully  solvent,  and  was 
a  non-resident  at  the  time  the  contract  was  made,  and  has  remained 
so  ever  since.41 

As  against  the  vendor  and  those  claiming  under  him  with  notice, 
the  law  gives  the  purchaser  a  lien  on  the  purchased  premises  to 
secure  to  him  the  reimbursement  of  whatever  purchase  money  he 
may  have  paid,  in  case  the  title  fails.42 

spending  portion  of  the  estate.  *  *  *  The  mode  of  enforcing  such  liens  is 
by  a  bill  in  equity  to  have  satisfaction  of  the  debt  made,  and  to  that  end  the 
court  may  order  enough,  of  the  land  to  be  sold  to  satisfy  the  lien.  But  it 
can  be  enforced  only  in  a  suit  or  proceeding  brotight  for  the  purpose.  It  can- 
not be  reached1  by  a  collateral  proceeding.  2  Washb.  Real  Prop.  93  ( 509 ) . 

30  Duncan  v.  Jeter,  5  Ala.  004,  39  Am.  Dec.  342;  Read  v.  Walker,  18  Ala. 
323;  darner  v.  Leaverett,  32  Ala.  410;  Hickson  v.  Linggold,  47  Ala.  449; 
Griggs  v.  Woodruff,  14  Ala.  9;  Elliott  v.  Boaz,  6  Ala.  777;  McLaren  v.  Irvin, 
63  Ga.  275;  Taft  v.  Kessel,  16  Wis.  273;  Mclndoe  v.  Morman,  26  Wis.  588,  7 
Am.  Rep.  96;  Payne  v.  Atterbury,  1  Harr.  Ch.  (Mich.)  414;  Wickman  v. 
Robinson,  14  Wis.  493,  80  Am.  Dec.  789;  Davis  v.  Heard,  44  Miss.  50;  Bibb 
v.  Prather,  1  Bibb  (Ky.),  313,  2  Am.  Dec.  711;  Shirley  v.  Shirley,  7  Bl. 
(Ind.)  452.  COLOOCK,  J.,  in  Ruttledge  v.  Smith,  1  McCord  Ch.  (S.  C.)  402. 

40Wyatt  v.  Garlington,  56  Ala.  576. 

41  Parks  v.  Brooks,  16  Ala.  52.9. 

42  2  Sugd.  Vend.   (14th  ed.)    672;  2  Warvelle  Vend.  884;  2  Story  Eq.  Jur. 
§  1218,  n.     See,  also,  cases  cited,  supra,  this  chapter.    Taft  v.  Kessel,  16  Wis. 
273';  Newman  v.  Maclin,  5  Hayw.   (Tenn.)   241;  Perkins  v.  Hadley,  4  Ilayvv. 

(Tenn.)  148;  Pileher  v.  Smith,  2  Head  (Tenn.),  208;  Hilton  v.  Duncan,  1 
Cold.  (Tenn.)  316,  320;  Benson  v.  Shotwell,  87  Cal.  49,  25  Pac.  Rep.  249; 
Galbraith  v.  Reeves,  82  Tex.  357,  18  S.  W.  Rep.  696;  Coleman  v.  Floyd,  (Ind.) 
31  N.  E.  Rep.  75;  Griffith  v.  Depew,  3  A.  K.  Marsh.  (Ky.)  177;  13  Am.  Dec. 
141;  Bullitt  v.  Eastern  Ky.  L.  Co.,  99  Ky.  324,  36  S.  W.  Rep.  16;  Fort 
Jefferson  Imp.  Co.  v.  Dupeyster,  (Ky.)  66  S.  W.  Rep.  1048;  Craft  v. 
La  Tourette,  62  N.  J.  Eq.  206,  49  Atl.  Rep.  711;  Everett  v.  Mansfield,  148 
Fed.  374,  7'S  C.  C.  A.  188;  Groves  v.  Stouder,  5&  Okl.  744,  161  Pac.  239; 
Hough  v.  Fink,  (Tex.  Civ.  App.)  141  S.  W.  147;  Stockwell  v.  Melbern,  (Tex. 

86 


682  MARKETABLE   TITLE   TO   REAL   ESTATE. 

Of  course,  such  a  lien  could  not  prevail  against  the  true  owner," 
and  it  is  obvious  that  if  the  purchaser  were  liable  to  the  latter 
for  rents  and  profits,  he  could  derive  no  benefit  from  the  retention 
of  the  premises.  There  may  be  cases,  however,  in  which  no  such 
liability  exists,  as  where  the  vendor,  selling  a  fee,  had  only  a  life 
estate.  In  such  a  case,  the  purchaser  would  be  permitted  to  enjoy 
the  life  estate  until  he  is  fully  reimbursed  the  purchase  money 
paid  and  sums  expended  in  permanent  improvements.  The  pur- 
chaser will  not  be  entitled  to  a  lien,  as  against  a  subsequent  bona 
fide  purchaser,  without  notice  of  his  rights.44  But,  as  against  a 
subsequent  purchaser  with  notice,  his  lien  will  be  enforced.45 

Civ.  App.)  185  S.  W.  30i>:  Elterman  v.  Hyman.  192  N.  Y.  113,  84  X  E.  »87, 
127  Am.  St.  Rep.  862;  Delano  v.  Savior  (Ky.)  113  S.  W.  888;  Selkir  v.  Klein, 
100  X.  Y.  Supp.  449. 

In  Xew  York  it  is  held  that  the  purchaser  ia  not  entitled  to  the  lien  when 
he  sues  at  law  to  recover  his  deposit,  such  suit  being  an  election  to  rewind 
the  contract,  and  that  the  lien  can  he  enforced  only  in  an  equitable  pro- 
ceeding. Davis  v.  Rosenzweig,  192  X.  Y.  135.  84  X.  E.  945;  Garrett  v.  Cohen, 
117  X.  Y.  Supp.  129,  63  Misc.  Rep.  450;  Goodman  v.  Schwab,  121  X.  Y.  .Supp. 
«in,  136  App.  Div.  492;  Elterman  v.  Hyman.  126  X.  Y.  Supp.  6,  141  App.  Div. 
20S:  Feldblura  v.  Land  Co.,  135  X.  Y.  Supp.  349,  151  App.  Div.  24.  It  is 
there  held,  also,  that  in  equity  the  lien  does  not  cover  the  costs  of  examin- 
ing the  title,  though  such  costs  be  recoverable  in  an  action  at  law.  Occi- 
dental Realty  Co.  v.  Palmer,  102  X.  Y.  Supp.  648,  117  App.  Div.  505; 
t'ngrich  v.  Snuff,  105  X.  Y.  Supp.  1013,  119  App.  Div.  843.  Contra,  Gerstell 
v.  Shirk,  210  Fed.  223,  127  C.  C.  A.  41,  where  held,  also,  that  the  purchaser's 
lien  in  equity  is  not  defeated  by  the  fact  that  he  might  recover,  at  la\v,  the 
amount  due  him,  nor  by  want  of  marketable  title  in  the  vendor.  A  >uit  by 
the  purchaser  to  enforce  his  lien  in  equity,  is  not  a  rescission  of  the  con- 
tract on  his  part.  Elterman  v.  Hyman,  192  X.  Y.  113.  84  X.  E.  937,  127 
Am.  St.  Rep.  862.  Xor  docs  the  purchaser,  by  suing  at  law  to  recover  the 
payments  made,  waive  his  right  <o  the  lien.  Flickinger  v.  Glass,  222  X.  Y. 
404,  118  X.  E.  792. 

"Tim*,  in  Mi-William*  v.  Jenkins,  72  Ala.  480,  it  was  held  that  the  pur- 
chaser's lien  could  only  extend  to  such  lands,  or  portions  thereof,  as1  the 
vendor  had  the  legal  right  to  convey,  and  that,  having  no  right  to  convey  hi* 
li.. in. -i. M. I  lund*,  the  purchaser  could  have  no  lien  thereon,  as  against  the 
claim  of  the  vendor's  children,  for  the  rents  while  the  purchaser  was  in  ]•••- 
MMion.  And  in  Scott  v.  Battle,  84  X.  C.  184,  a  purchaser,  whoso  deed  was 
void  horn  use  executed  by  a  married  woman  alone  and  without  privy  examina- 
tion, wan  denied  a  lien  upon  the  land  for  the  purchase  money  paid.  See  also, 
Villone  v.  Fcinstein,  116  X.  Y.  Supp.  384,  132  App.  Div.  31. 

«•  Thaw  v.  Peck,  21  X.  Y.  581,  5H5,  dictum. 

*  Clark  v.  .Jacob*,  56  How.  Pr.  (X.  Y.)  619. 


OBLIGATION  OF  PURCHASER  TO  RESTORE  PREMISES  TO  VENDOR.       683 

The  purchaser's  lien  will,  after  a  time  given-  the  vendor  for  repay- 
ment has  expired,  be  enforced  by  sale  of  the  land.46  If  the  pur- 
chaser be  able  to  follow  and  identify  the  purchase  money  paid  by 
him,  he  may  impress  it  with  a  trust.47  But  it  seems,  that  the  pur- 
chaser has  no  lien  on  the  purchase  money  after  it  has  been  appro- 
priated by  the  vendor,  even  though  the  latter  fraudulently  con- 
cealed the  state  of  the  title.48  Nor,  will  he  be  allowed  a  lien-  on  the 
land  as  against  subsequent  judgment  creditors  of  the  vendor,  his 
contract  not  having  been  recorded,  as  required  by  statute  to  charge 
subsequent  purchasers  and  creditors  with  notice.49 

The  purchaser  is  also  entitled  to  the  value  of  any  improvements 
placed  by  him  on-  the  premises,  less  the  fair  rental  of  the  property 
while  in  his  possession.50 

§  262.  OTHER  EXCEPTIONS.  The  rule  that  the  purchaser  can- 
not detain  the  purchase  money  without  restoring  the  possession,  of 
course  does  not  apply  where  the  title  fails  to  part  of  the  premises 
only,  and  the  purchaser  does  not  seek  a  rescission  but  elects  to  take 
such  title  as  the  vendor  can  make,  with  abatement  of  the  purchase 
money  as  to  that  part  to  which  the  title  has  failed.31 

It  sometimes  happens  that  the  purchaser  in  good  faith  seeks  to 
detain  the  purchase  money  without  intending  or  desiring  to  rescind 
or  abandon  the  contract,  and  with  no  intent  to  avail  himself  of 
the  want  of  title  as  a  mere  excuse,  for  detaining  both  the  purchase 
money  and  the  possession  of  the  premises,  as  where  suit  against 
the  purchaser  has  been  begun  or  threatened  by  an  adverse  claim- 
ant. In  such  case  it  seems  that  the  purchaser,  anxious  to  preserve 

48Jett  v.  Locke,  5  J.  J.  Marsh.   (Ky.)  591. 

47  Ross  v.  Davis,  122  K  C.  265,  29-  S.  E.  Rep.  338. 

48  2  Sugd.  Vend.  (8th  Am.  ed.)  200. 

*Xewberry  v.  French,  98  Va,  479,  36  S.  E.  Rep.  519. 

50  Florence  Oil-  Co.  v.  McCandless,  26  Colo.  534,  58  Pac.  Rep.  1084. 

01  Walker  v.  Johnson,  13  Ark.  522;  Wheat  v.  Dotson,  7  Eng.  (Ark.)  699; 
Smeech  v.  Herbst,  135  Pa.  St.  539,  19  Atl.  Rep.  950.  Compare  Lewis  v. 
McMiillan,  31  Barb.  (N.  Y.)  395,  41  Barb.  (1ST.  Y.)  420.  A  representation 
by  the  vendor  that  the  purchaser  would  have  the  privilege  of  building  to  a 
brick  wall  on  the  adjoining  lot  of  a  third"  person,  is  not  one  which  affects  the 
title  to  the  lot  sold ;  hence  the  purchaser  may,  without  restoring  the  lot  to 
the  vendor,  set  up  the  non-existence  of  the  easement  as  a  defense,  pro  tanto, 
to  an  action  for  the  purchase  money.  Noojin  v.  Carson,  124  Ala.  458,  27  So. 
Rep.  490. 


684  MARKETABLE   TITLE   TO   HEAL   ESTATE. 

his  bargain,  may  detain  both  the  premises  and  the  unpaid  pur- 
chase money,  the  contract  being  executory,  until  the  rights  of  the 
adverse  claimant  can  be  determined.  Thus,  where  the  purchaser, 
a  woman,  was  sued  for  a  balance  of  the  purchase  money  and  she 
Hied  an  answer  alleging  that  she  had  been  sued  in  trespass  by  an 
adverse  claimant  of  the  laud,  whose  title  she  was  informed  and 
believed  was  paramount  to  that  of  her  vendor,  and  prayed  that 
the  vendor's  suit  against  her  might  be  stayed  until  the  trespass 
suit  was  determined,  it  was  held  that  the  answer  presented  a  good 
defense,  though  there  was  no  offer  to  restore  the  premises  to  the 
vendor.52 

Tt  has  been  held  that  a  purchaser  in  possession  of  the  premises 
resisting  the  payment  of  the  purchase  money  on  the  ground  that 
the  title  is  bad,  must  show  affirmatively  the  existence  of  a  para- 
mount title  in  a  third  person  in  order  to  sustain  that  defense.53 
It  might,  perhaps,  be  inferred  from  these  cases  that  if  the  pur- 
chaser were  able  to  establish  the  existence  of  the  paramount  title, 
he  might  detain  the  purchase  money  without  surrendering  the  pos- 
session of  the  premises.  If  such  be  the  effect  of  these  decisions, 
they  are  opposed  to  the  current  of  authority  in  England  and 
America.  It  is  true  that  it  has  been  held  that  a  purchaser  in 
possession  under  an  executory  contract  cannot  enjoin  the  collection 
of  the  purchase  money  merely  because  the  vendor  has  no  title,  or 
a  defective  title,54  unless  the  vendor  has  been  guilty  of  fraud,65  or 
is  insolvent  and  unable  to  respond  in  damages  for  breach  of  the 

MGober  v.  Hart,  36  Tex.  13{),  the  court  saying:  "Tn  this  case  the  appellant 
purchased  the  land  ami  paid  a  large  proportion  of  the  purchase  money,  and 
went  into  possession  of  the  purchased  premises;  and  she  had  a  right  to  retain 
the  Mime  as  against  her  vendors  until  a  tender  of  a  good  and  valid  title;  and 
in  order  to  make  her  defense  a  g(xxl  one  she  was  not  hound  to  make  an  offer 
to  restore  possession,  as  she  did  not  seek  to  rescind  the  contract  of  sale,  hut 
sought  to  h;ivo  it  perfected  in  good  faith,  according  to  the  contract  of  sale 
and  purchase.  She  does  not  resist  the  payment  of  the  note,  hut  only  asks  that 
the  enforcement  of  the  payment  IH»  stayed  until  appellees  can  make  her  a  good 
title;  and  this  she  had  a  right  to  ask,  and  it  should  have  been  granted  her." 

M  Cantrell  v.  Mobh,  43  Ga.  11W;  Sawyer  v.  Sledge,  55  G».  152.  In  both 
cases  the  contract  was  executory. 

M  Blanks  v.  Walker,  54  Ala.   117. 

vl.l.  Young  v.  Harris,  2  Ala.  108;  Elliott  T.  Boaz,  0  Ala.  772;  Bonham  v. 
Walton,  24  Ala,  514. 


OBLIGATION  OF  PURCHASER  TO  RESTORE  PREMISES  TO  VENDOR. 

contract.56  But  these  cases,  it  is  to  be  observed,  do  not  militate 
against  the  right  of  the  purchaser  to  rescind  the  contract  and  re- 
cover back  the  purchases  money,  as  a  general  rule,  if  the  title  is  bad 
or  unmarketable.  They  merely  deny  his  right  to  do  either  so  long 
as*  he  remains  in-  the  undisturbed  possession  and  enjoyment  of  the 
premises.  There  are  cases,  however,  which  deny  the  right  of  the 
purchaser  to  deliver  up  the  possession-  and  recover  back  or  detain 
the  purchase  money  where  the  title  is  bad  or  doubtful,  unless  the 
vencfor  is-  insolvent.57  It  seems  impossible  to.  reconcile  such  de- 
cisions- with  the  rule  that  a  purchaser  cannot  be.  required  to  take 
a  doubtful  title,  or  one  that  will  probably  involve  him  in  litigation. 
§  263.  RESTORATION  OF  THE  PREMISES  WHERE  THE  CON- 
TRACT IS  VOID.  In  some*  cases  it  has  been  held  that  if  the  con- 
tract for  the  sale  of  ther  land  wa.s  void,  e.  g.,  within  the  Statute 
of  Frauds,  the  purchaser  might  recover  back  his  purchase  money 
without  surrendering  the  possession  of  the  land'  to  the  vendor,  the 
reason  assigned  being  that  there  is  no  contract  to  rescind.58  Such 

M  Kelly  v.  Allen,  34  Ala.  G63';  Magee  v.  McMillan,  30  Ala.  420;  McLemore 
v.  Mabson,  20  Ala,  137. 

57  Hancock  v.  Cloud,  65  Ga.  208.  This  was  an  action  to  recover  the  pur- 
chase money  of  land,  the  contract  being  still  executory.  The  purchaser  had 
bought  from  one  who  had  purchased  at  his  own  sale  as  administrator,  and 
finding  the  title  doubtful,  for  that  reason  had  offered  to  pay  the  purchase 
money  if  the  heirs  would  ratify  the  sale,  and,  in  default  of  such  ratification, 
to  rescind  and  give  up  the  possession;  and  his  plea  showed  these  facts.  The 
plea  was  stricken  out,  and  the  purchaser  was  required  to  perform  the  contract 
on  the  ground  that  it  did  not  appear  that  the  sureties  on.  the  administrator's 
bond  were  insolvent  or  that  the  purchaser  had  been  or  ever  would  be  dis- 
turbed in  the  possession  of  the  land.  Plainly  the  effect  of  such  a  decision 
might  be  to  compel  the  purchaser  to  buy  a  lawsuit. 

^Barickman  v.  Kuykendall,  6  Bl.  (Ind.)  21;  MlcCracken  v.  San  Francisco, 
16  Cal.  591,  628.  COPE,  J.,  dissenting.  Hurst  v.  Means,  2  Swan  (Teim.), 
594.  In  Wiley  v.  White,  3  Stew.  &  Port.  (Ala.)  35>5,  it  was  held  that  if  a 
sale  was  void  for  want  of  authority  in  the  seller,  the  purchase  money  might 
be  recovered  back  by  the  purchaser  without  surrendering  the  possession.  The 
contract,  however,  had  been  executed  in  this  case  by  a  conveyance,  but 
whether  with  or  without  covenants  for  title,  does  not  appear.  The  case  of 
Walker  v.  Constable,  1  Bos.  &  Pul.  406,  was  cited  by  the  court  in  Hurst  v. 
Means,  supra,  in  support  of  this  proposition.  It  seems,  however,  that  in  that 
case,  the  contract  being  within  the  Statute  of  Frauds  and  void,  the  purchaser 
was  merely  denied  a  recovery  of  the  expenses  of  examining  the  title,  and  was 
allowed  to  recover  the  purchase  money  on  a  count  for  money  had  and  re- 
ceived. The  case  does  not  show  whether  the  plaintiff  had  or  had  not  restored 
the  possession. 


686  MARKETABLE   TITLE   TO   REAL   ESTATE. 

a  reason  is  eminently  unsatisfactory.  It  is  difficult  to  perceive 
how  the  purchaser  can  have  any  greater  rights  under  an  illegal 
'•on tract  than  he  could  have  under  one  that  is  lawful  and  valid, 
or  why  the  non-existence  of  a  contract  should  entitle  him  to  hold 
both  the  land  and  the  purchase  money.  Neither  does  it  seem  that 
there  is  any  right  or  justice  in  forcing  the  vendor  to  the  expniM 
and  vexation  of  an  action  of  ejectment  or  unlawful  detainer  to 
regain  possession  of  the  premises,  when  circuity  of  action  miirht 
be  avoided  in  the  first  instance  by  requiring  the  purchaser  to 
deliver  up  the  land  as  a  condition  precedent  to  restitution  of  the 
purchase  money.  Accordingly  it  has  been  held  that  the  invalidity 
of  the  contract  of  sale  should  occasion  no  exception  to  the  rule  that 
the  purchaser  cannot  recover  back  the  purchase  money  so  long  as 
he  retains  possession  of  the  premises.09 

"Cope  v.  Williams,  4  Ala.  3f>2,  where  it  was  said  by  COOLIER,  C.  J. : 
"  Morality  forbids  the  idea  that  one  man  should  take  possession  of  another's 
property  under  a  contract  which  at  most  is  merely  void,  and  notwithstand- 
ing its  continuous  enjoyment,  refuse  to  make  for  it  any  remuneration.  Here 
the  seller  docs  not  seek  to  recover  of  the  purchaser  upon  his  contract  for  pay- 
ment, but  the  action  is  by  the  buyer,  and  assumes  the  utter  invalidity  of  tin- 
contract,  and  asserts  a  right  to  be  refunded  what  has  been  paid  under  it. 
although  the  purchaser's  possession  has  never  been  molested,  and  the  vendor 
had  not  refused  to  execute  the  contract.  Such  a  demand  is  against  equity 
and  good  conscience,  and  'cannot  be  entertained."  See,  also,  the  dissenting 
opinion  of  COPE,  J..  in  McCracken  v._  San  Francisco,  16  Cal.  638.  In  Rey- 
nolds v.  Harris,  9  Cal.  338,  it  was  held  that  no  eviction  was  necessary  t.i 
enable  the  purchaser  to  recover  back  the  purchase  money  where  the  title  had 
failed  and  the  contract  was  void  under  the  Statute  of  Frauds.  But  in  thi> 
case  the  purchaser  had  given  up  the  possession,  and  it  was  not  decided  tli.it 
the  mere  invalidity  of  the  contract  would  justify  tin-  purchaser  in  detaining 
the  possession. 


OF  VIRTUAL  RESCISSION  BY  PROCEEDINGS  AT  LAW  AFTER  THE 
CONTRACT  HAS  BEEN  EXECUTED. 

DETENTION  OF  THE  PURCHASE  MONEY. 
CHAPTER  XXVI. 

OF   DETENTION   OF   THE   PURCHASE   MONEY   WHERE   THERE    HAS 
BEEN  A  BREACH  OF  THE  COVENANT  OF  SEISIN.1 

GENEBAL  BULK     §   264. 

QUALIFICATIONS  OF  THIS  BULE.    §  265. 

BBEACH  OF  COVENANT  AS  TO  PABT  OF  THE  PBEMISES.     §  266. 

§  264.  GENEBAL  BULE.  It  has  been  frequently  declared  that 
an  executed  contract  for  the  sale  of  lands  cannot  be  rescinded  upon 
the  sole  ground  of  want  of  title  in  the  vendor,  unattended  by  any 
circumstances  of  fraud  or  mistake  in  the  execution  of  the  contract.2 
Few  cases  can  be  found  in  which,  after  delivery  of  possession  and 
execution  of  a  conveyance  on  the  part  of  the  vendor,  and  payment 
of  the  purchase  money  and  acceptance  of  a  conveyance  on  the  part 
of  the  purchaser,  the  vendor  has  been  ordered  to  restore  the  pur- 
chase money  to  the  purchaser,  and  the  purchaser  directed  to  recon- 
vey  the  premises  to  the  vendor,  upon  the  ground  that  the  title  has 
failed.3  And  in  many  of  the  'States  the  rule  is  established  that  if 

1  It  was  the  desire  of  the  author  to  present  in  unbroken  sequence  in  this 
part  of  his  work  each  of  the  cardinal  rules  which  govern  the  right  of  the 
purchaser  upon  failure  of  the  title,  to  detain  or  to  recover  back  the  purchase 
money,  since  the  exercise  of  this  right  in  most  instances  amounts  in  sub- 
stance to  an  election  to  rescind  the  contract.  But  inasmuch  as  the  averment 
of  an  eviction  under  title  paramount  as  a  defense  to  an  action  for  the  pur- 
chase money,  is  substantially  a  cross-action  by  the  purchaser  on  the  covenant 
of  warranty,  and  is,  therefore,  an  affirmance  of  the  contract,  it  has  been 
deemed  proper  to  consider  that  subject  in  a  chapter  under  the  subdivisions 
"Affirmance  by  Proceedings  at  Law  after  the  Contract  has  been  Executed," 
and  "Action  for  Covenant  Broken,"  ante,  §§  108,  180. 

2Beebe  v.  Swartwout,  3  Gil.   (111.)   168;  Ohling  v.  Luitjens,  32  111.  23. 

3  See  the  case  of  Hart  v.  Hannibal  &  St.  J.  R.  R.  Co.,  65  Mo.  509.  The  pur- 
chaser filed  his  petition  (declaration)  alleging  that  he  bought  the  land  in 
1863,  paid  the  purchase  money  in  full  and  took  a  conveyance,  with  covenants 
of  seisin,  etc.,  that  his  vendor  had  no  title  to  the  land;  that  the  title  was 
outstanding  in  a  person  named,  and  that  he  had  offered  to  rescind  the  con- 

[687] 


MARKETABLE   TITLE   TO   SEAL   ESTATE. 

the  purchaser  has  accepted  a  conveyance  with  covenants  for  title, 
and  has  not  been  actually  or  constructively  evicted  from  the  prem- 
ises by  one  having  a  better  right,  nor  compelled  to  satisfy  an 
incumbrance  on  the  estate,  he  cannot  detain  the  unpaid  purchase 
money  in  his  hands,  though  a  clear  failure  of  the  vendor's  title 
should  appear.  We  have  seen  that  if  he  is  evicted  from  the  prem- 
ises or  forced  to  discharge  an  incumbrance  thereon,  lie  may  set 
up  that  fact  as  a  defense  by  way  of  counterclaim  or  recoupment 

tract,  and  tendered  a  reconveyance  to  the  vendor.  The  plaintiff  had  not  in- 
closed or  cultivated  the  land,  but  there  was  nothing  to  prevent  him  from 
taking  possession  and  occupying  the  premises.  There  was  a  judgment  for  the 
plaintiff,  which  was  reversed  on  appeal,  the  court  saying:  "The  parties  tried 
the  cause  as  if  the  plaintiff  had  sued  the  defendant  for  a  breach  of  the  cove- 
nant of  seisin,  and  judgment  was  rendered  for  the  amount  of  the  purchase 
money  and  interest.  Had  it  been  such  a  suit,  the  plaintiff  would  only  have 
been  entitled  to  nominal  damages,  as  no  actual  or  constructive  eviction  was 
shown.  But  the  suit  was  distinctry  brought  for  a  rescission  of  the  executed 
contract  of  sale.  The  petition  contained  no  allegation  of  fraud  or  misrepre- 
sentation of  facts  in  relation  to  the  title,  and  without  such  allegations  n 
court  of  equity  has  no  authority  to  grant  the  relief  prayed.  The  vendee  in 
such  case  mtist  rely  on  the  covenants  contained  in  his  deed."  In  the  case  of 
Simpson  v.  Hawkins,  1  Dana  (Ky.),  306,  the  court  said:  "Where  contracts 
are  executed  by  conveyances  we  are  of  opinion  that  there  can  be  no  rescission 
of  a  contract  in  any  case  unless  it  has  'been  tainted  by  actual  fraund.  If  the 
warranty  of  title  has  been  broken  so  as  to  entitle  the  vendee  to  damages,  or 
if  the  vendee  be  entitled  to  damages  upon  a  covenant  of  seisin,  he  may  apply 
to  the  chancellor,  where  the  vendor  is  insolvent,  to  set  off  those  damages 
against  the  unpaid  portion  of  the  purchase  money.  The  ground  upon  which 
the  chancellor  interferes  in  such  cases  is  the  prevention  of  the  irreparable 
mischief  which  otherwise  might  result  from  the  insolvency.  He  ought  not  to 
act  upon  the  principle  of  rescinding  the  contract.  On  the  contrary,  he  should 
affirm  the  contract,  and  secure  to  the  party  such  damages  as  he  might  be 
entitled  to  for  a  partial  or  total  violation  thereof  by  the  obligor.  If  a  deed 
of  conveyance  be  executed  for  any  quantity  of  land,  and  the  vendee  is  put 
into  possession  thereafter,  in  case  he  loses  half  or  three-fourths  of  the  land, 
the  law  only  authorizes  a  recovery,  upon  the  warranty,  of  damages  com- 
mensurate with  the  loss.  The  chancellor  must  follow  the  law  and  not  lay 
hold  of  such  a  partial  loss,  and  require  the  vendor  to  take  back  the  portion 
•  •f  the  land  saved  and  return  the  purchase  money  for  that,  under  the  idea  of 
rescinding  contracts"  In  Vance  v.  House,  5  B.  Mon.  (Ky.)  540,  it  was  said 
l»y  the  court:  "This  is  the  case  of  an  executed  contract,  where  the  convey- 
ance has  been  made  and  accepted  with  warranty  of  title,  and  ponswsion  de- 
livered ami  uninterruptedly  enjoyed,  without  eviction  or  molestation.  In 
cueh  a  ca«e  a  bill  for  the  dissolution  of  the  contract  and  the  payment  of  the 
enjoined  cannot  be  sustained  except  in  the  case  of  fraud,  in- 


DETENTION  OF  PURCHASE  MONEY.  689 

in  an  action  for  the  purchase  money.4  No  particular  hardship  is 
involved  in  requiring  a  grantee,  who  has  paid  the  whole  purchase 
money,  to  await  an  eviction  or  disturbance  of  his  possession  before 
he  can  recover  back  the  purchase  money,  or  rather  its  equivalent 
in  the  shape  of  damages,  from  the  grantor.  But  that  he  should 
be  compelled  to  pay  over  the  purchase  money  when  there  is  a 
moral  certainty  of  his  eviction  by  an  adverse  claimant,  and  a 
possibility  that  his  judgment  against  the  grantor  for  damages 
may  be  worthless  when  recovered,  does  violence  to  common  prin- 
ciples of  equity  and  right.  Such,  however,  is  the  consequence  of  a 
rigid  application  of  the  maxim  caveat  emptor.  But  in  some  of  the 
States  the  restraints  of  this  maxim  or  rule  have  been  thrown  off 
in  a  large  degree.  We  shall  see  that  in  the  State  of  Pennsylvania 
the  purchaser  is  permitted  to  detain  the  purchase  money,  though 
he  took  a  conveyance  without  covenants  for  title,  if  he  purchased 
without  notice  of  the  defect  in  the  title.5  And,  with  the  same 
qualification,  in  the  States  of  Texas  and  South  Carolina,  the 
existence  of  a  paramount  title  to  the  premises  in  .a  stranger,  is 
a  good  defense  to  an  action  for  the  purchase  money,  though  the 
purchaser  holds  under  a  deed  with  general  warranty,  and  has  not 
been  disturbed  in  the  possession  of  the  premises.6  In  a  number 
of  other  States  he  is  permitted  to  enjoin  the  collection  of  the  pur- 
chase money  if  he  can  show  that  by  reason  of  the  non-residence 
or  insolvency  of  the  grantor  his  remedy  by  action  for  breach  of 
the  covenant  of  warranty  will  prove  unavailing  when  the  right  to 
maintain  the  action  shall  have  accrued.7  The  decisions  in  these 
States,  together  with  those  in  other  States,  directly  or  incidentally 
affirming  the  right  of  the  purchaser  to  detain  the  purchase  money 

solvency  or  non-residency  of  the  vendor,  and  a  palpable  and  threatening 
danger  of  immediate  or  ultimate  loss,  without  legal  remedy  by  reason  of  the 
defects  in  the  title  conveyed  and  the  inability  of  the  vendee  to  protect  him- 
self against  eviction  under  it.  And  to  sustain  such  a  bill  after  the  vendee 
has  accepted  the  conveyance,  the  onus  lies  on  him  to  establish  to  the  satisfac- 
tion of  the  chancellor  that  the  defect  of  title  and  imminent  danger  of  eviction 
exists." 

'Ante,  §  ISO;  Prop.  IV. 

"Post,  §  271. 

•Ante,  §§  189,  190. 

'Post,  §  331. 

87 


G9C  MARKETABLE   TITLE   TO   REAL   ESTATE. 

where  there  has  been  a  total  failure  of  the  title,  upon  reconvening 
or  offering  to  reconvey  the  premises  to  the  grantor,  justify  us,  it 
is  believed,  in  laying  down  the  following  proposition: 

PROPOSITION  III.  //  the  contract  has  been  executed  by  a  con- 
veyance with  a  covenant  of  seisin  or  of  good  right  to  convey,  and 
it  clearly  appears  that  the  covenantor  had  no  title,  tlie  covenantee, 
though  he  has  not  been  disturbed  in  the  possession,  will,  it  seems, 
in  some  of  the  American  States,  be  permitted  to  set  up  the  breach 
of  the  covenant  of  seisin  as  a  defense  to  an  action  for  the  purchase 
money,  upon  condition  that  he  reconvey  the  premises  to  the  cove- 
nantor, and  do  all  that  may  be  necessary  to  put  him  infstatu  quo.9 

•Owens  v.  Rector,  44  Mo.  390,  392;  Powell  v.  Hunter,  257  Mo.  440;  165 
S.  W.  1009;  Herron  v.  Barbour,  57  Okl.  71;  155  Pac.  506;  S.  C.  182  Pac, 
243;  Mercer  Co.  Bank  v.  Hayes,  34  X.  D.  601;  159  S.  W.  74;  McDaniel  v. 
Bryan,  8  111.  273;  Mhidd  v.  Green,  (Ky.)  14  S.  W.  Rep.  347;  Cartwright  v. 
Culver.  74  Mo.  179;  Kirtz  v.  Peck,  113  N.  Y.  222,  231;  21  N.  E.  Rep.  130; 
Lowry  v.  Hurd,  7  Minn.  356  (282)  ;  Buell  v.  Tate,  7  BL  (Ind.)  56;  Marvin 
v.  Applegate,  IS  Ind.  425;  McDunn  v.  DCS  Mbines,  34  Iowa,  467;  Beard  v. 
Dulaney,  36  Iowa,  16;  Barnett  v.  Clark,  5  Sneed  (Tenn.)  436;  Land  Co.  v. 
Hill,  3  Pick.  (Tenn.)  589,  598;  11  S.  W.  Rep.  797;  Kimball  v.  West,  15  Wall. 
(U.  S.)  377;  Michael  v.  Mills,  17  Ohio,  601;  Smith  v.  Hudson,  45  Ga.  208. 
See,  also,  the  cases  cited,  post,  §  271,  "  Rule  in  Pennsylvania,"  and,  ante, 
(|  189,  190,  "Rule  in  South  Carolina  and  Texas,"  and,  post,  S  331,  "Insolvency 
and  Non-residence  of  the  Covenantor."  Sir  Edward  Sugden  says  that,  where 
the  title  is  defective  the  covenantee  would  not  be  bound  to  wait  until  eviction, 
but  might  bring  his  action  of  covenant,  and,  if  necessary,  offer  to  reconvey 
the  interest  or  title  actually  vested  in  him.  2  Sugd.  Vend.  (14th  ed.)  611. 
No  authority  is  cited  for  the  proposition,  and  it  has  been  doubt  ed  by  Mr. 
Dart.  Dart  Vend.  (5th  ed.)  792.  In  Lawless  v.  Collier,  19  Mo.  480,  it  wan 
held  that  the  rule  which  limits  the  recovery  in  an  action  on  a  covenant  of 
seisin,  to  a  nominal  sum,  until  there  has  been  an  eviction,  has  no  application 
where  the  title  conveyed  li.is  been  defeated,  and*  the  grantee  or  his  assign* 
hold  by  a  title  adverse  to  that  acquired  from  their  grantor,  and  that  in  such 
cane  there  can  be  no  necessity  for  submitting  to  the  form  of  an  eviction  in 
order  to  be  entitled  to  a  recovery  of  full  damages  for  a  breach  of  the  cove- 
nant of  seisin;  neither  is  there  any  necessity  for  a  reconveyance  to  the 
grantor,  in  order  to  sustain  «urh  recovery.  It  is  true  these  principles  were 
declared  in  an  action  for  breach  of  the  covenant  of  seisin,  but  they  are  fully 
a»  applicable  where  micti  breach  in  sought  to  be  availed  of  as  a  defense  to  an 
action  for  the  purchase  money.  In  Akerly  v.  Vilas,  21  Wis.  88;  99  Am.  Dec. 
165,  which  wan  an  action  to  foreclose  a  purchase-money  mortgage,  it  was 
held  that  the  defendant  might,  under  a  statutory  provision  allowing  a  coun- 
terclaim to  be  act  up  in  foreclosure  proceedings,  counterclaim  for  a  breach 
of  the  covenant  of  seisin,  though  he  was  in  the  undisturbed  possession  of  the 


DETENTION  OF  PURCHASE  MONEY.  691 

In  one  of  those  cases  the  court  said :  "  We  fully  recognize  the 
principle  that  the  true  consideration  of  the  notes  given  for  the 
purchase  money,  was  the  land,  and  not  the  covenants  in  the  deed ; 
and  as  the  title  to  the  land  had  been  defeated  by  an  incumbrance 

premises.  See,  also,  Merritt  v.  Gouley,  58  Hun  (N.  Y.),  372,  12  N.  Y.  Supp. 
132.  The  proposition  stated  in  the  text  was  admitted,  though  the  point  was 
not  expressly  decided,  in  Yazel  v.  Palmer,  81  111.  82.  There  had  been  a  con- 
veyance in  that  case,  but  whether  with  or  without  covenants  for  title  does 
not  a-ppear.  The  grantee  had  resold  and  conveyed  the  premises,  and  when 
sued  for  the  purchase  money,  set  up  want  of  title  as  a  defense.  The  court 
said:  "He  (the  original  grantee)  cannot  withhold  the  purchase  money,  and 
still  retain  the  plaintiff's  title,  whatever  it  was,  which  he  obtained1  by  the 
conveyance.  Before  he  can  recoup  the  value  of  the  land  to  which  he  says  the 
title  failed,  he  must  cause  his  grantee  to  reconvey  it,  or  offer  to  do  so,  back 
to  plaintiff.  Xo  defense  can  be  interposed  until  the  parties  have  been  placed 
in  statu  quo  by  a  reconveyance,  or  an  offer  to  reconvey  to  plaintiff  whatever 
title  defendant  received  from  plaintiff,  no  matter  what  its  title  may  'be."  In 
Moyer  v.  Shoemaker,  5  Barb.  (N.  Y'.)  319,  it  was  held  that  the  covenantee 
could  not  maintain  assoimpsit  to  recover  back  the  purchase  money  on  failure 
of  the  title,  without  reconveying  the  premises.  The  right  to  rescind,  pro- 
vided the  covenantee  would  make  the  adverse  claimant  a  party,  so  that  the 
rights  of  all  parties  might  be  adjusted  in  the  suit,  wia3  admitted  in  Wiley 
v.  Fitzpatrick,  3  J.  J.  Marsh.  (Ky.)  583,  586.  In  Brick  v.  Coster,  4  Watts 
&  S.  (Pa.)  499,  it  was  said  that  an  affidavit  of  defense  by  a  grantee,  with 
warranty,  in  a  suit  for  the  purchase  money,  would  be  insufficient  unless  it 
alleged  adverse  claims  to  be  good,  or  that  affiant  believed  them  to  be  good. 
If  the  objection  to  the  title  be  an  outstanding  incumbrance,  the  grantee  will 
be  entitled  to  detain  the  purchase  money  until  the  grantor  removes  the  in- 
cumbrance. Brown  v.  Montgomery,  (Tex.  Civ.  App.)  31  S.  W.  Rep.  1079.  In 
Wisconsin  there  are  dicta  in  several  early  cases  which  support  the  proposi- 
tion stated  in  the  text.  Taft  v.  Kessel,  16  Wis.  273;  Nbonan  v.  Illsley,  21 
Wis.  138;  84  Am.  Dec.  742;  Mecklem  v.  Blake,  22  Wis.  495;  99  Am.  Dec.  68. 
But  they  are  inconsistent  with  later  decisions  in  that  State.  In  Smith  v. 
Hughes,  50  Wis.  625,  it  was  said :  "  The  counterclaims  of  the  defendant,  for 
a  rescission  of  the  bargain  and  for  damages,  are  predicated  upon  the  breach 
of  the  covenant  of  seisin  in  the  deed  of  the  respondents,  executed  and  delivered 
in  July,  1872.  It  is  too  well  settled  that  only  executory  contracts  can  be 
rescinded,  to  require  discussion.  This  method  of  relief  is  the  converse  of 
specific  performance,  and  in  its  very  nature  can  have  application  only  to 
executory  contracts,  and  this  court  has  settled  the  question  beyond  contro- 
versy by  repeated  decisions.  In  direct  application  to  this  case,  it  is  held  in 
Booth  v.  Ryan,  31  Wis.  45,  that,  especially,  a  rescission  cannot  be  made  after 
a  deed  with  full  covenants,  together  with  possession,  have  been  delivered  in 
full  execution  of  the  contract  of  sale.  *  *  *  The  remark  in  the  opinion  of 
Chief  Justice  DIXON,  in  Mecklem  v.  Blake,  22  Wis.  405;  99  Am.  Dec.  68, 
intimating  that  a  recission  might  be  made  in  such  a  case,  was  clearly  obiter, 


G92  MARKETABLE   TITLE   TO   BEAL   ESTATE. 

prior  to  the  deed  to  the  defendant,  the  title  at  the  time  of  the 
maturity  of  the  notes  had  failed;  and  so  the  consideration  of  the 
notes  failed  if  the  defendant  so  chose  to  treat  it,  and  the  defend- 
ant then  had  the  right  to  repudiate  the  contract  of  sale  and  the 
notes,  for  the  reason  that  the  consideration  of  the  notes  had  failed. 
But  the  mere  declaration  that  he  repudiated  the  contract  was  not 
sufficient  to  effectuate  that  purpose.  He  should  have  put  the  other 
parties  in  statu  quo  by  a  reconveyance  of  the  land,  or,  at  least, 
a  release  of  the  covenants  of  the  deed,  so  that  any  subsequent  title 
acquired  by  the  grantor,  would  not  enure  to  his  benefit,  and  vest 
in  him." '  These  views,  undoubtedly  at  variance  with  the  current 

and  without  due  consideration."  In  McClennan  v.  Prentice,  77  Wis.  124; 
45  N.  W.  Rep.  943,  it  was  held,  in  an  action  for  breach  of  a  covenant  of 
seisin  in  which  it  appeared  that  the  plaintiff  had  never  been  in  possession  of 
the  premises,  that  the  burden  of  proof  was  on  the  grantor  to  show  that  he 
was  seized  of  an  estate  in  fee  at  the  time  of  the  execution  of  the  deed,  and 
that  in  the  absence  of  such  proof  the  grantee  might,  on  tendering  a,  recon- 
r-  i/nnce,  rescind  the  contract  and  recover  back  the  purchase  price  paid,  with 
interest,  etc.  This  case  came  again  before  the  court,  and  is  reported  in  85 
Wis.  427.  Without  disapproving  the  decision  at  the  former  hearinp,  the  court 
announces  a  rule  inconsistent  therewith,  namely,  that  an  executed  contract 
cannot  be  rescinded,  except  upon  the  ground  of  mistake.  Apparently,  the 
court  draws  a  distinction  between  a  recission  by  a  decree  of  a  court  of  equity 
and  a  virtual  rescission  accomplished  at  law,  by  permitting  the  purchaser  to 
recover  back  or  detain  the  purchase  money  in  the  shape  of  damages  for  a 
breach  of  the  covenant  of  seisin.  In  Taylor  v.  Lyon,  2  Dana  (Ky. ),  279,  it 
was  said:  "If  he  (the  purchaser)  took  no  covenant  of  seisin,  which  iroi//<f 
have  enabled  him,  without  an  eviction,  to  put  the  title  to  a  legal  and 
decisive  teat  at  any  time,  he  cannot  call  on  the  chancellor  to  euppy  such  an 
omission  in  the  contract,  and,  by  anticipating  an  eviction,  to  decree  a 
rescission."  In  Jackson  v.  Norton,  6  Cai.  187,  the  right  of  the  covenantee 
to  a  perpetual  injunction  against  the  collection  of  the  purchase  money, 
provided  he  reconveyed  the  premises  to  the  grantor,  was  conceded.  In  Baird 
v.  Goodrich,  5  Heisk.  (Tenn.)  20,  the  covenantee,  on  failure  of  the  title  and 
suit  against  him  to  recover  the  land,  filed  a  bill  against  the  covenantor's 
representative  to  attach  the  estate  of  the  covenantor  in  his  hands,  and  hold 
it  BO  that  it  might  be  forthcoming  to  answer  the  covenantor's  liability  in 
cue  the  plaintiff  should  lose  the  property.  There  was  a  demurrer  on  the 
ground  that  the  plaintiff's  remedy  was  on  his  covenants,  but  the  demurrer 
w»«  overruled.  In  the  recent  case  of  Cross  v.  Lumber  Co.,  139  Tenn.  79; 
201  S.  W.  Rep.  141 ;  Ann.  Ca«.  1918  D,  983,  it  was  held  that  when  the  con- 
tract requires  the  conveyance  of  a  good  title  to  the  purchaser,  such  contract 
remains  "  executory  "  notwithstanding  a  conveyance  of  the  property  to  the 
purchaser,  the  title  conveyed  being  not  good. 

•  Deal  v.  Dodge,  26  111.  458.     See,  also,  Whitlock  v.  Denlinger,  59  111.  90. 


DETENTION    OF    PURCHASE    MONEY.  693 

of  American  authority,  find  support  in  a  number  of  adjudicated 
cases.10 

The  equity  of  this  rule  is  undeniable.  That  a  purchaser  with 
a  confessedly  bad  title  must  pay  the  purchase  money  and  await 
an  eviction  from  the  premises  before  he  can  have  the  benefit  of  a 
covenant  of  seisin  by  his  grantor,  may  easily  be  productive  of 
great  hardship ;  for  when  that  eviction  occurs  the  covenantor  may 
be  insolvent  or  a  non-resident ;  or  the  remedy  against  him  may  be 
barred  by  the  Statute  of  Limitations,  for  the  statute  begins  to  run, 
not  from  the  time  of  the  eviction,  but  from  the  delivery  of  the 
deed  containing  the  covenant.11  Therefore,  it  might  be  that  the 
covenantee  could  be  compelled  to  pay  money  with  the  certainty  of 
a  right  accruing  sometime  in  the  future  to  recover  it  back,  but 
with  no  prospect  of  enforcing  that  right.  The  answer  to  this  has 
been  that  the  hardship  so  produced  is  the  result  of  the  purchaser's 
own  negligence  in  failing  to  examine  the  title.  This  answer  is 
unsatisfactory :  First,  because  there  are  many  defects  of  title  not 
apparent  from  the  public  records  nor  upon  the  face  of  the  instru- 
ments under  which  the  vendor  claims,  and  which  the  most  skillful 
examination  of  the  title  would  not  disclose ;  and,  secondly,  because 
the  very  purpose  for  which  a  covenant  of  seisin  is  taken  is  to  pro- 
tect the  purchaser  against  defects  of  title  which  may  have  been 
overlooked  or  undiscovered.  Another  reason  assigned  for  refus- 
ing to  permit  the  purchaser  to  detain  the  purchase  money  upon  a 
breach  of  the  covenant  of  seisin,  is  the  temptation  which  that 
defense  offers  to  purchasers  to  search  out  defects  in  the  title  when 
pressed  for  the  purchase  money.12  This  objection  loses  its  force 
if  the  right  of  the  purchaser  to  detain  the  purchase  money  be  con- 
fined to  cases  in  which  there  is  a  clear  and  undoubted  failure  of 
the  title,  a  hostile  assertion  of  the  adverse  title,  and  a  moral  cer- 
tainty of  the  eviction  of  the  grantee.  It  has  also  been  urged  that 
the  purchaser  may  protect  himself  by  insisting  upon  an  express 

10  See  the  cases  cited  above. 

"Rawle  Covts.  (5th  ed.)  §  229.  Matteson  v.  Vaughn,  38  Mich.  373;  Spoor 
v.  Green,  L.  R.,  9  Exch.  99.  In  Sherwood  v.  Landon,  57  Mich.  219,  the 
eviction  did  not  occur  until  ten  years  after  the  covenant  of  seisin  was  made, 
while  an  action  on  the  covenant  was  held  to  be  barred  after  six  years. 

"Rawle  Covt.  (5th  ed.)    §  329.     See  also  Id.  §§  178,  183,  184. 


694  MARKETABLE    TITLE    TO    REAL    HSTATE. 

provision  in  the  conveyance  that  the  purchase  money  may  be 
detained  and  the  premises  be  restored  to  the  grantor  if  the  title 
should  be  found  to  be  bad,"  and  that  if  he  neglects  a  precaution 
of  this  kind,  he  should  not  complain  when  required  to  pay  the 
purchase  money  and  await  an  eviction  by  one  having  the  better 
title.  Such  a  provision,  however,  is  so  much  out  of  the  usual 
course,  that  its  absence  would  scarcely  warrant  a  presumption  of 
laches  against  the  purchaser. 

A  number  of  cases  may  be  found  in  which  it  is  decided  that 
a  mere  breach  of  the  covenant  of  seisin,  unattended  by  an  eviction 
from  the  premises,  is  no  defense  to  an  action  for  the  purchase 
money.14  In  most  of  these  cases,  however,  it  will  be  seen  either 

"In  Weaver  v.  Wilson,  48  111.  125,  and  Smith  v.  New-ton,  38  111.  230,  it 
was  provided  in  a  purchase-money  note  and  mortgage,  that  they  should  not 
be  payable  if  the  title  WHS  not  perfected.  Where  a  deed  with  general  war- 
ranty provided  that  deferred  payments  of  purchase  money  should  not  be 
made  until  "  acreage  of  clear  title  should  be  determined,"  it  was  held  that 
the  purchaser  might  detain  the  purchase  money  though  there  had  been  no 
eviction.  American  Asson.  v.  Short,  (Ky.)  30  S.  W.  Rep.  978. 

"Ante,  p.  481,  cases  cited  in  MeConihe  v.  Fales,  107  N.  Y.  404;  14  N.  E. 
Rep.  285;  Parkinson  v.  Sherman,  74  N.  Y.  02;  30  Am.  Rep.  268. 

Abbott  v.  Allen,  2  Johns.  Ch.  (X.  Y.)  519;  7  Am.  Dec.  554,  and  Bumpus  v. 
Plainer,  1  Johns.  Ch.  (N.  Y.)  213,  are  the  leading  cases  cited  to  sustain  the 
doctrine  that  a  purchaser  cannot,  on  .breach  of  the  covenant  of  seisin,  detain 
the  purchase  money  unless  he  has  been  evicted.  The  objections  to  the  title 
in  those  cases  amounted  to  no  more  than  that  it  WHS  doubtful  or  unmarket- 
able. In  neither  case  was  there  any  one  asserting  or  prosecuting  an  adverse 
title,  nor  was  any  offer  made  to  reconvey  the  premises.  Such  objections  as 
were  made  appear  to  have  been  ferreted  out  merely  for  the  purpose  of  delay- 
ing the  collection  of  the  purchase  money.  Chancellor  KENT  rendered  the 
decision  in  both  these  cases,  and  afterwards,  in  Johnson  v.  Gere  (2  Johns. 
Ch.  546),  granted  an  injunction  staying  the  collection  of  the  purchase  money, 
upon  an  allegation  that  there  was  an  outstanding  paramount  title  in  a 
stranger,  which  was  being  prosecuted  by  suit  in  ejectment  against  the  cove- 
nantee.  Johnson  v.  Gere,  however,  has  been  disapproved  in  many  subsequent 
New  York  decisions.  See  Miller  v.  Avery,  2  Barb.  Ch.  (N.  Y.)  595;  Platt  v. 
Gilchrist,  3  Sandf.  (N.  Y.  S.  C.)  118.  The  cases  citttl  l.y  Mr.  Rawle  (f.-vt. 
for  Title  [5th  ed.]  637)  to  the  proposition  that  the  purchase  money  cannot 
be  detained  upon  a  mere  breach  of  the  covenant  of  seisin,  may  be  seen  below, 
with  others  in  parentheses.  Some  pains  have  been  taken  to  indicate  briefly 
the  grounds  of  the  decision  in  most  of  these  cases,  for  in  nearly  all  of  them 
tin-re  were  circumstances  to  bring  the  case  within  the  except  ions  to  the  rule 
stated  at  the  head  of  thin  chapter;  such,  for  example,  that  the  purchaser 
made  no  offer  to  reconvey  the  premises  to  the  grantor,  or  that  the  objections 
to  the  title  were  of  a  misty  or  doubtful  character. 


DETENTION    OF    PURCHASE    MONEY.  695 

that  the  covenantee  was  seeking  to  recover  back  the  purchase 
money ;  or  that  he  had  purchased  with  notice  of  the  want  of  title ; 
or  that  he  was  seeking  to  keep  both  the  land  and  the  purchase 
money;  or  that  he  could  show  no  more  than  that  the  title  was 
doubtful  and  not  absolutely  bad.  Consequently,  they  cannot  be 
deemed  conclusive  against  the  alleged  right  of  the  covenantee  to 
resist  the  payment  of  the  purchase  money,  where  he  reconveys 
or  offers  to  reconvey  the  premises  to  the  grantor,  upon  a  complete 

Noonan  v.  Lee,  2  Bl.  (U.  S.)  499.  In  this  case,  it  is  true  that  the  cove- 
nantee offered  to  restore  the  .property,  but,  for  all  that  appeared  to  the 
contrary,  he  was  advised  of  the  state  of  the  title  when  he  bought.  It  also 
appeared  that  he  took  the  property  with  a  particular  purpose  in  view,  after 
the  accomplishment  of  which  he  attempted  to  throw  the  purchase  back  on 
the  hands  of  the  vendor  without  having  paid  any  of  the  purchase  money. 
Beck  v.  Simmons,  7  Ala.  76.  Here  the  covenantee  purchased-  knowing  that 
the  title  was  defective.  Burkett  v.  Munford,  70  Ala.  423.  The  contract  was 
executory  in  this  case,  and  the  court  merely  decided  that  a  rescission  should 
be  denied  in  saich  a  ease  if  the  purchaser  had  not  restored  the  premises  to 
the  grantor,  unlessi,  indeed,  it  was  necessary  for  him  to  detain  the  property 
until  he  should  be  indemnified  for  what  he  had  already  paid.  Roberts  v. 
Woolbright,  1  Ga.  Dec.  98;  McGhee  v.  Jones,  10  Ga.  127,  133.  Here,  also, 
the  contract  was  executory,  the  vendor  having  executed  a  bond  to  make  title, 
and  to  that  bond  the  court  seems  to  have  given  the  effect  of  a  conveyance 
with  general  warranty,  so  far  as  the  right  to  detain  the  purchase  money  is 
concerned.  Miller  v.  Long,  3  A.  K.  Marsh.  (Ky.)  334;  Perciful  v.  Hurd, 
5  J.  J.  Marsh.  (Ky.)  670;  Lewis  v.  Morton,  5  T.  B.  Mon.  (Ky.)  1.  Here 
the  objections  to  the  title  were  more  than  thirty  years  old.  So,  also,  in 
Vance  v.  House,  5  B.  Mon.  (Ky.)  537;  Casey  v.  Lucas,  2  Bush  (Ky.),  55. 
Here  it  was  said  that,  no  danger  of  eviction  being  alleged,  the  covenantee 
could  not  have  a  rescission  of  the  contract  without  an  effort  to  procure  the 
title,  or  without  showing  that  a  good  one,  could  not  be  made.  English  v. 
Thomason,  82  Ky.  281.  (In  Buford  v.  Guthrie,  14  Bush  [Ky.],  690,  the 
rule  that  an  executed  contract  for  the  sale  of  lands  cannot  be  rescinded 
except  upon  the  ground  of  fraud  or  mistake,  seems  to  have  been  asserted 
without  any  qualification  whatever.  See,  also,  Gale  v.  Conn,  3-  J.  J.  Marsh. 
[Ky.]  38.)  Beebe  v.  Swartwout,  3  Gil.  (111.)  162.  In  this  case  there  had 
been  a  constructive  eviction,  the  covenantee  not  having  been  able  to  get 
possession  of  part  of  the  land,  and  the  court  considered  that  the  remedy  at 
law  on  the  bond  was  sufficient.  Ohling  v.  Luitjens,  32  111.  23;  Lovingston  v. 
Short,  77  111.  587.  Here  the  covenantee  not  only  bought  with  notice  that  the 
title  to  part  of  the  land  was  doubtful,  and  asked  for  a  rescission  as  to  that 
part,  but  failed  to  show  that  any  one  was  claiming  or  asserting  a  para- 
mount title  to  that  portion.  Middlekauff  v.  Barick,  4  Gill  (Md.),  290.  In 
this  case  the  purchaser  took  a  conveyance  with  covenants  which  did  not 
embrace  the  defect  of  which  he  complained.  Haldane  v.  Sweet,  55  Mich.  196. 


696  MABKETABLE    TITLE    TO    REAL    ESTATE. 

and  palpable  failure  of  the  title.  In  a  State  in  which  the  rule 
that  a  breach  of  the  covenant  of  seisin  is  no  ground  for  detain- 
ing the  purchase  money  unless  the  covenantee  has  been  evicted, 
appears  to  be  firmly  rooted,  it  is,  nevertheless,  admitted  that  a 
judgment  in  ejectment  against  the  covenantee  in  favor  of  an 
adverse  claimant  will  justify  an  injunction  against  the  collection 
of  the  purchase  money,  though  it  is  clear  that  such  a  judgment 
does  not  amount  to  an  eviction,  unless  the  covenantee  chooses  to 

Rescission  was  denied  here  ( 1 )  because  the  covenantee  bought  with  notice  of 
certain  physical  incumbrances  of  which  he  complained,  and  (2)  that  the 
objections  made  to  the  title  consisted  of  doubtful  outstanding  claims.  Wilty 
T.  Hightower,  6  Sm.  &  M.  (Miss.)  345.  In  this  case  the  covenantee  was 
seeking  to  recover  back  and  not  to  detain  the  purchase  money,  and  it  was 
of  course  held  that  his  remedy  was  on  the  covenants.  McDonald  v.  Green, 
9  Sm.  &  M.  (Miss.)  138.  The  contract  was  executory  in  this  case.  So,  also, 
in  Green  v.  McDonald,  13  Sm.  &  M.  (MSss.)  445.  (See  Walker  v.  Gilbert. 
7  Sm.  &  M.  [M'iss.]  456.)  Cooley  v.  Rankin,  11  Mo.  647.  The  objections 
to  the  title  in  this  case  were  such  as  showed  it  to  be  merely  doubtful  and 
not  absolutely  bad.  Edington  v.  Nix,  49  Mo.  135.  Rescission  was  refused 
because  the  covenantee  made  no  offer  to  restore  the  premises,  and  was  seek- 
ing to  recover  back  and  not  to  detain  the  consideration.  Beach  v.  Waddell. 
4  Halst.  (N.  J.  Eq.)  299.  It  was  not  shown  here  that  the  title  had  failed. 
Leggett  v.  McCarty,  3  Edw.  Ch.  (N.  Y.)  124.  There  was  no  offer  to  return 
the  premises  here,  and  the  court  said  that  while  the  covenantee  held  posses- 
sion it  would  be  unreasonable  to  say  that  he  might  not  be  compelled  to  pay 
the  purchase  money.  Woodruff  v.  Bunce,  9  Paige  Ch.  (N.  Y.)  443;  38  Am. 
Dec.  559;  Whitworth  v.  Stuckey^  1  Rich.  Eq.  (S.  C.)  404;  Van  Lew  v.  Parr. 
2  Rich.  Eq.  (S.  C.)  321;  Maner  v.  Washington,  3  Strobh.  Eq.  (S.  C.)  171. 
The  entire  purchase,  money  had  been  paid  in  this  case,  and  the  object  of  the 
camplainant  was  to  recover  it  back.  Buchanan  v.  Alwell,  8  Humph.  (Tenn.) 
516.  The  contract  was  executory  in  this  case.  Young  v.  Butler,  1  Head 
(Tenn.)  639.  In  this  case  the  covenantee  expressly  declined  to  restore  the 
possession  because  he  had  gone  on  the  land  to  live  and  had  made  valuable 
improvements.  Cohen  v.  Woolard,  2  Tenn.  Ch.  686;  Jones  v.  Fulgham,  3 
Trnn.  Ch.  198;  Long  v.  Israel,  9  Leigh  (Va,),  564.  Here  the  covenantee 
sought  to  rcrorrr  bark  and  not  to  detain  the  purchase  money,  and  the  court 
said  (per  TVCKEB,  P.)  that  they  had  never  gone  so  far  as  to  relieve  a  cove- 
nantee complaining  of  failure  of  title  except  where  the  application  was  to 
restrain  the  recovery  of  the  purchase  money.  In  Young  v.  McClung,  9  Grat. 
(Va.)  336,  358,  the  purchaser  bought  at  a  judicial  sale,  and.  with  full 
knowledge  of  the  defective  title,  allowed  the  sale  to  be  confirmed  without 
objection.  In  Prevent  v.  Gratz,  3  Wash.  (C.  C.)  434,  439.  the  land  was  in 
the  possession  of  adverse  claimants,  and  there  was  no  obstacle  to  complete 
and  immediate  relief  on  the  covenants  for  title.  The  court  went  so  far  as  to 
deny  the  right  of  the  covenantee  to  detain  the  purchase  money,  though  the 


DETENTION    OF    PURCHASE    MONEY.  697 

surrender  the  possession  to  the  adverse  claimant.13  In  such  a 
case,  it  would  be  against  conscience  to  compel  the  covenantee  to 
pay  over  the  purchase  money  to  the  covenantor,  and  take  the  risk 
of  an  inability  to  get  it  back  in  the  form  of  damages,  after  he  shall 
have  been  evicted  by  legal  process  upon  the  judgment. 

The  permanent  detention  of  the  unpaid  purchase  money  upon 
a  breach  of  the  covenant  of  seizin  is  in  effect  a  rescission  of  the 

covenant  of  warranty  had  been  broken  by  a  constructive  eviction.  In  that 
respect  the  case  would  hardly  be  deemed  an  authority  at  the  present  day. 
Ante,  §  180.  Greenleaf  v.  Queen,  I  Pet.  (U.  S.)  138.  The  contract  was 
executory  in  this  case.  Patterson  v.  Taylor,  7  How.  (U.  S.)  132.  The  title 
in  this  case  was  not  absolutely  bad;  it  was  merely  doubtful  or  unmarketable 
at  most,  the  covenantor  having  been  in  possession  under  color  of  title  for 
more  than  twenty  years.  Kimiball  v.  Wesit,  15  Wall.  (U.  S.)  377,  3<79.  This 
was  a  suit  to  rescind  the  contract  and  recover  the  whole  consideration, 
$22,000,  and'  it  appeared  at  the  hearing  that  the  covenantor  had  at  his  own 
cost  removed  all  objections  to  the  title.  Smoot  v.  Coffin,  4  Mackey  (D.  C. ), 
407.  It  did  not  appear  in  this  case  that  there  was  a  clear  outstanding  title 
in  a  stranger. 

"Green  v.  McDonald,  13  Sm.  &  Marsh.  (Miss.)  445,  where  it  was  said  by 
the  court:  "It  seems  that  the  objection  to  granting  relief  before  eviction  in 
cases  of  the  failure  of  consideration1  arising  from  defects  in  the  title  is  placed 
chiefly  on  the  ground  of  incompetency  of  a  court  of  chancery  as  not  possess- 
ing any  direct  jurisdiction  over  legal  titles.  It  is  conceded  that  it  may  try 
titles  to  land  when  the  question  arises  incidentally,  but  it  is  understood  not 
to  be  within  its  province  when  the  case  depends  on  a  simiple  legal  title  and  is 
presented  directly  by  the  bill.  If  thia  be  the  true  reason  why  a  previous 
eviction  is  necessary  to  authorize  the  interposition  of  the  court,  a  judgment 
at  law  establishing  a  failure  of  title  would-  be  held  sufficient  for  that  purpose 
without  eviction."  If  this  be  true  it  may  be  added  that  it  is  difficult  to  per- 
ceive why  the  same  reasoning  would  not  apply  in  a  court  of  law  when  the 
purchaser  sets  up  a  judgment  in  ejectment  as  a  defense  to  an  action  for  the 
purchase  money.  In  Jaques  v.  Esler,  4  N.  J.  Eq.  461,  it  was  said:  "It  is 
well  settled  that  the  purchaser  of  real  estate  by  deed  of  warranty  has  a  right 
to  relief  in  equity  against  the  vendor  who  seeks  to  enforce  the  payment  of  a 
bond  and  'mortgage  given  for  the  purchase  money  until  a  suit  actually  brought 
to  recover  the  premises  by  a  person  claiming  them  by  paramount  title  shall 
have  been  determined.  He  is  not  obliged  to  look  merely  to  the  covenants  in 
the  deed.  He  is  not  to  be  driven  to  such  circuity  of  action,  nor  to  rely  upon 
that  as  his  sole  security.  The  fund  in  his  hands  is  a  security  of  which  it 
would  be  inequitable  to  deprive  him."  It  is  true  that  these  objections  were 
made  with  respect  to  the  right  of  the  covenantee  to  enjoin  the  collection  of 
the  purchase  money  before  eviction,  but  the  principle  of  the  decision  is 
applicable  in  any  case  in  which  the  purchaser  seeks  to  detain  the  purchase 
money  so  long  as  the  title  is  actually  threatened. 

88 


698  MARKETABLE    TITLE    TO    REAL    ESTATE. 

contract;"  and,  therefore,  this  alleged  right  of  the  purchaser  has 
been  denied  in  some  cases  upon  the  ground  that  an  executed  con- 
tract cannot  be  rescinded  unless  the  agreement  was  founded  in 
fraud  or  mistake.17  The  wisdom  and  expediency  of  this  rule  is 
obvious  where  the  contract  has  been  in  fact  fully  executed,  that  is, 
where  the  whole  purchase  money  has  been  paid  and  the  purchaser 
is  in  possession  of  the  premises.  The  vendor  may  have  invested 
the  purchase  money  in  other  property,  or  the  purchaser  may  have 
dealt  with  the  estate  in  such  a  manner  that  it  may  be  impossible 
to  put  the  vendor  in  as  good  a  position  as  he  was  in  before  the 
contract  was  executed.  But  it  may  be  seriously  doubted  whether 
a  contract  for  the  sale  of  lands  can  be  said  to  be  "executed" 
so  long  as  any  part  of  the  purchase  money  remains  unpaid,18 
especially  in  America,  where  it  is  a  common  practice  to  execute 
a  conveyance  to  the  purchaser  as  soon  as  the  contract  of  sale  is 
made,  and  to  take  a  mortgage  or  trust  upon  the  property  to  secure 
the  unpaid  purchase  money.  In  England,  where  transfers  of  real 
property  are  comparatively  infrequent,  it  seems  that  conveyances 
are  seldom  made  to  purchasers  until  all  the  purchase  money  has 
been  paid,  and,  therefore,  in  that  country  there  are  few,  if  any, 
occasions  to  modify  the  rule  against  the  rescission  of  executed 
contracts,  so  as  to  permit  the  detention  of  unpaid  purchase  money 
upon  a  clear  failure  of  the  title. 

An  able  and  discriminating  text  writer  admits  the  right  of  the 
purchaser  to  recover  the  consideration  money  as  damages  for  a 
breach  of  the  covenant  of  seisin,  where  the  failure  of  title  is  clear 
and  undoubted  and  the  breach  affects  the  whole  title,  and  declares 
that  the  effect  of  such  a  recovery  is  to  revest  the  title,  such  as  it  is, 

"A  perpetual  injunction  apainxt  proceedings  to  colhvt  the  purchase  money 
practically  amount*  to  rescission  of  an  executed  contract.  McWhirter  v. 
SwaftVr,  6  Baxt.  (Tenn.)  342,  347;  Golden  v.  Maupin,  2  J.  J.  Mhrsh.  (Ky.) 
237.  241. 

"  McClennan  v.  Prentice,  85  Wi*.  427. 

"A  contract  in  raid  to  be  executed  when  nothing  remains  to  be  done  by 
cither  party.  A  contract  is  said  to  be  executory  when  some  future  act 
remains  to  lie  done.  Story  on  Cont.  (5th  ed.)  $  92.  Farrinjfton  v.  Tennessee, 
5  Otto  (I*.  S.).  683.  Fox  v.  Kitton.  19  111.  519,  533.  Fletcher  v.  Beck,  6 
('ranch  (1T.  8.).  137.  A  contract  for  the  sale  of  lands  is  "  executed  "  when  the 
purchase  money  i»  paid,  possession  given,  and  a  deed  delivered  to  the  pur- 


DETENTION    OF    PURCHASE    MONEY.  699 

in  the  covenantor.19      But  elsewhere  the  same  author  lays  down  • 
that  equity  will  not  enjoin  the  collection  of  the  purchase  money 
and  rescind  an  executed  contract  for  the  sale  of  lands  merely 
because  the  title  has  failed;  in  other  words,  that  the  covenantee 
cannot  detain  the  purchase  money  merely  because  the  covenantor 

chaser.  Frazer  v.  Robinson,  42  Miss.  12.1.  In  no  case  can  a  contract  for  the 
sale  of  lands  be  said  to  be  "  executed "  until  the  purchase  money  has  been 
paid  and  a  conveyance  made  to  the  purchaser.  Herbemont  v.  Sharp,  2  McCord 
L.  (S.  C.)  265;  Robinson  v.  Robinson.,  44  Am.  227,  235.  Of  course  a  contract 
for  the  sale  of  lands  is  fully  executed  by  the  acceptance  of  a  conveyance,  in 
the  sense  of  the  rule  that  excludes  evidence  of  any  antecedent  agreement  re- 
pugnant to  or  inconsistent  with  the  conveyance.  Long  v.  Hartwell,  34  N".  J. 
L.  116.  In  Adams  v.  Reed,  (Utah)  40  Pac.  Rep.  720,  it  was  held  that  the 
contract  would  not  be  regarded  as  "executed,"  notwithstanding  a  quit-claim 
conveyance  had  been  executed  by  the  vendor  and  accepted  by  the  vendee,  if 
the  deed  conveyed  land1  other  than  that  called  for  by  the  contract. 

"Rawle  Covts.  (5th  ed.)  264.    Mr.  Rawle's  text  contains  no  positive  state- 
ment to  this  effect,  but  such  a  statement  is  found  in  a  note  on  the  page  cited. 
The  author  observes :    "  In  the  first  edition  of  this  treatise  it  was  said :    '  If 
nothing  had  been  paid  and  no  pecuniary  loss  had  been  suffered,  and  the  pos- 
session had  not  been  disturbed,  and  the  purchaser  did  not  offer  to  convey,  it 
is   believed  that  nominal   damages  only  would  in  general  be  allowed.     The 
technical  rule,  therefore,  that  the  covenant  for  seisin  is  broken,  if  at  all,  at 
once  and  completely,  is  as  respects  the  damages  little  more  than  a  technical 
one.'    Covenants  for  Title  (1st  ed.),  83   (citing  the  case  of  Collier  v.  Gamble, 
10  Mo.  472,  where  it  had  been  held  that  '  the  reasonable  rule  was  to  recover 
nominal  damages  only  until  the  estate  conveyed  was  defeated  or  the  right  to 
defeat  it  had  been  extinguished'),  and  this  passage  was  cited  in  the  more 
recent  case  of  Overhiser  v.  McCollister,  10  Ind.  44,  and  held  to  be  '  obviously 
just.'     The  treatise  then  went  on  to  say:    'Cases  may,  of  course,  occur  in 
which,  although  the  purchaser  may  have  paid  nothing  to  buy  in  the  para- 
mount title,  and  may  still  be  in  possession,  yet  where  the  failure  of  the  title 
is  so  complete  and  the  loss  so  morally  certain  to  happen,  that  a  court  might 
feel   authorized  in  directing  the  jury  to  assess  the  damages  by  the  consid- 
eration money.'     Upon  subsequent  consideration  the  opinion  was  formed  that 
the  first  passage  above  quoted  did  not  correctly  express  the  law,  and  it  was 
omitted  in  the  second  edition.    Since  then  the  case  in  Missouri  came  up  again 
(Lawless  v.   Collier,   19   Mo.   480),  where  the  second  of  the  'passages  above 
quoted  was  referred  to  and  the  case  decided  accordingly.     It  is  believed  that 
the  text  as  now  offered  contains  the  true  statement  of  the  law,  and  that  if 
the  breach  of  the  covenant  has  occurred,  affecting   the  whole  of  the  title, 
*     *     *     the  plaintiff  has  a  right  to  recover  damages  measured  by  the  con- 
sideration money,  the  effect  of  whose  receipt  will  be,  subject  to  the  exceptions 
hereafter  to  be  noticed,  to  revest  the  title,  such  as  it  is,  in  the  covenantor." 
If  this  be   sound  law  and  the  s-ame  author's  further  proposition,  that  the 
covenantee  may  for  the  avoidance  of  circuity  of  action  detain  the  purchase 


700  MARKETABLE    TITLE    TO    REAL    ESTATE. 

•has  no  title.20  If  the  purchaser  may  recover  back  the  purchase 
money  as  damages  upon  a  breach  of  the  covenant  of  seisin,  it 
would  seem  that  upon  the  same  evidence  and  for  the  avoidance 
of  circuity  of  action  he  should  be  permitted  to  detain  the  purchase 
money  by  way  of  recoupment  of  the  covenantor's  demand,  just  as 
he  may  do  upon  a  breach  of  the  covenant  of  warranty;  and  it  is 
difficult  to  discover  any  reason  for  admitting  that  defense  in  the 
one  case  which  would  not  apply  with  equal  force  in  the  other. 
If  he  paid  the  money  over  to  the  covenantor  he  might  immediately 
recover  it  back  as  damages  for  breach  of  the  covenant.  As  this 
recovery  is  permitted  only  upon  condition  that  the  covenantee 
reconvey  the  premises  to  the  covenantor,  or  upon  the  assumption 
that  the  effect  of  a  judgment  for  the  covenantee  operates  of  itself 
to  reinvest  the  covenantor  with  such  title  as  he  conveyed,  it  is 
plain  that  a  rescission  of  the  contract  is  thereby  practically  accom- 
plished. The  covenantee  gets  back  his  purchase  money  and  the 
premises  are  restored  to  the  covenantor.  We  have  seen  that  the 
covenantee  may  voluntarily  surrender  the  possession  to  an  adverse 
claimant,  or  buy  in  his  rights,  if  the  adverse  title  has  been  hostilely 
asserted ;  and  that  such  action  on  his  part  amounts  to  a  construc- 
tive eviction  from  the  premises  and  constitutes  a  breach  of  the 
covenant  of  warranty,  entitling  him  to  recover  damages  against 

money,  whenever  he  has  a  present  right  to  recover  damages  (Covt.  [5th  ed.] 
8  3331,  lie  sound,  the  conclusion  is  irresistible  that  a  elear  and  indisputable 
want  of  title  in  the  covenantor  will  justify  the  covenantee  in  detaining  the 
purchase  money,  provided  he  reoonveys  the  premises  to  the  grantor.  Mr. 
Rawle  practically  admits  this  conclusion,  but  adds  that  the  temptation 
offered  to  purchasers  to  ferret  out  defects  in  the  title  when  pressed  for  the 
pun-ham-  price  is  such  as  to  induce  a  leaning  in  favor  of  the  rule  that  unless 
there  has  been  a  bona  fide  eviction,  actual  or  const ructive,  the  grantee  is 
without  relief.  (Covts.  for  Title,  |  320.)  See.  also,  Rawle  Covts.  (5th  ed.) 
M  170,  1S5,  25ft,  where  the  author  assumes  the  right  of  the  purchaser  on 
breach  of  the  covenant  of  seisin  to  recover  substantial  damages  before  evic- 
tion. This  assumption  is  in  aid  of  the  author's  view  that  the  covenantee 
cannot,  l>efore  or  after  eviction,  buy  in  the  outstanding  title  and  require  the 
covenantee  to  take  it  in  satisfaction  of  the  broken  covenant.  The  reason 
which  he  gives  for  that  view  is,  that  the  covenantee  cannot  be  required  to 
elect  between  the  acceptance  of  the  after- acquired  title  and  the  recovery  of 
damages  for  breach  of  the  covenant  of  seisin  or  of  warranty,  or  to  give  up 
hit  right  to  rescind  the  contract  6;/  rrconveying  the  premi»c»  to  the  grantor. 
»R*wle  Covts.  (5th  ed.)  ||  376,  378. 


DETENTION  OF  PURCHASE  MONEY.  701 

the  covenantor,  or  to  set  up  those  facts  as  a  defense  to  an  action 
against  him  for  the  purchase  money.21  In  principle  and  in  prac- 
tical results  there  is  little  difference  between  the  exercise  of  these 
rights,  and  the  detention  of  the  purchase  money  upon  a  reconvey- 
ance of  the  estate  to  the  grantor  after  an  adverse  title  has  been 
hostilely  asserted  against  the  covenantee.  The  law  is  chiefly 
solicitous  that  the  covenantee  shall  not  enjoy  the  benefit  of  the 
contract  while  evading  its  obligations,  and  this  object  is  accom- 
plished by  compelling  him  either  to  give  up  the  premises  to  the 
paramount  claimant,  or  to  surrender  them  to  the  covenantor,  or 
to  apply  the  purchase  money  to  the  removal  of  adverse  claims. 

The  virtual  rescission  of  an  executed  contract  for  the  sale  of 
lands  by  detention  of  the  purchase  money  in  an  action  at  law 
would  seem  to  be  attended  with  no  serious  difficulty  where  none, 
or  a  small  portion,  of  the  purchase  money,  has  been  paid,  and  the 
courts  have  power  to  enter  judgment  for  the  defendant,  with  con- 
dition that  it  shall  be  inoperative  unless  he  reconvey  the  premises 
to  the  grantor.  But  much  practical  difficulty  arises  where  a  con- 
siderable part  of  the  purchase  money  has  been  paid,  for  in  most 
instances  purchasers  are  unwilling,  by  reconveying  the  premises, 
to  .sacrifice  what  they  have  already  paid  in  pursuance  of  the  con- 
tract. If,  however,  the  purchaser  should  prefer  to  lose  what  he 
may  have  paid  rather  than  pay  out  more  money  for  a  bad  title, 
no  reason  is  perceived  why  he  should  not  be  permitted  to  do  so. 
He  must  either  submit  to  his  loss  or  suffer  a  constructive  eviction 
by  compounding  with  the  adverse  claimant,  except  in  a  few  of  the 
States,  where  he  may  have  an  injunction  tjo  stay  the  collection  of 
the  purchase  money,  without,  it  seems,  being  required  to  convey 
tfhe  premises  to  the  grantor,  in  view  of  the  imminency  or  extreme 
probability  of  his  eviction.22 

§  265.  QUALIFICATIONS  OF  THE  FOREGOING  RULE.  A  pur- 
chaser who  has  not  been  evicted  by  a  paramount  claimant  should 
not,  upon  a  breach  of  the  covenant  for  seisin,  be  permitted  to 
detain  the  purchase  money,  unless  he  offers  to  reconvey  the  prem- 
ises to  the  grantor,  and  to  make  good  to  the  latter  any  loss  or 

"Ante,  §§  150,  187. 
22  Post,  §  337. 


702  MARKETABLE    TITLE    TO    REAL    ESTATE. 

damage  he  may  have  sustained  by  reason  of  the  purchaser's  occu- 
pation and  possession  of  the  premises.23  Neither  should  that  right 
be  accorded  the  purchaser  unless  it  appears  that  there  is  a  moral 
certainty  of  his  eviction  by  one  whose  better  title  is  clear  and 
undisputed,  and  who  is  hostilely  asserting  that  title.  In  each  and 
every  case  in  which  this  defense  is  set  up,  the  burden  will  be  upon 
the  defendant  to  show,  by  clear  and  satisfactory  evidence,  the 
absolute  want  of  title  in  the  grantor.24  The  mere  objection  that 
the  title  is  doubtful  or  unmarketable  should  be  no  ground  for 
detaining  the  purchase  money,  after  a  conveyance  with  covenants 
for  title  has  been  accepted.  As  was  said  by  the  court  in  a  case 
frequently  cited :  "  The  vendee  has  accepted  the  deed,  he  has 
received  possession,  he  has  enjoyed  it  without  disturbance;  he 
alone  has  stirred  up  adversary  claims,  and,  when  so  stirred,  neither 
himself  nor  the  alleged  claimants  have  been  able  to  make  good 
their  claims.  After  such  acceptance  of  the  possession  and  deed 
and  covenant  of  warranty,  a  vendee,  before  eviction  or  disturbance, 
cannot  receive  the  aid  of  a  court  of  equity  to  assist  him  to  with- 
hold the  purchase  money  or  rescind  the  contract,  but  by  taking 
on  himself  the  burden  of  showing  a  defect  in  the  title  of  the  ven- 
dor of  a  latent  character,  and  of  proving  superior  outstanding 
subsisting  adversary  rights  and  interests."  26  Xor  should  the  de- 

"Deal  v.  Dodge,  26  111.  458;  Melicharek  v.  Calkins,  (Cal.  App.)  183 
Pac.  457.  Cases  may  easily  be  supposed  in  which  the  better  legal  title  is  in 
a  stranger,  with  no  probability  that  it  will  ever  be  asserted  against  the 
purchaser.  Thus,  in  some  of  the  States,  neither  a  married  woman  nor  her 
heirs  are  estopped  by  her  covenant  of  warranty  from  recovering  her  separate 
estate  from  a  purchaser  who  holds  under  a  conveyance  by  her  not  executed 
in  the  manner  required  by  statute  to  pass  her  title,  though  the  other  heirs 
may  be  in  the  full  enjoyment  of  the  consideration  of  such  conveyance. 
I  n -t anirs  have  occurred  in  which  parties  who  might  have  had  the  benefit 
of  such  a  defect  have  freely  and  voluntarily  relinquished  all  their  rights 
in  the  premises. 

"Ante,  §  117.  Vance  v.  House,  5  B.  MOD.  (Ky.)  540;  Zerfing  v.  Seelig, 
14  S.  Dak.  303,  85  N.  W.  Rep.  585. 

•Cooley  v.  Rankin,  11  Mo.  642;  Lewis  v.  Morton,  5  T.  B.  Mon.  (Ky.)  1. 
In  an  action  on  a  bond  for  purchase  money  of  land,  the  defense  that  the 
title  was  doubtful  h  insufficient;  the  title  must  be  proven  to  be  absolutely 
bad.  Crawford  v.  Murphy,  22  I'a.  St.  84;  Schott  v.  McFarland,  1  Phil.  (Pa.) 
63.  In  Cliintoii  v.  Burges,  2  Dev.  Eq.  (N.  C.)  13,  a  much  cited  case,  the 
court,  by  Rum.N,  J.,  after  describing  the  objection  to  the  title  on  which  the 


DETENTION    OF    PURCHASE    MONEY.  703 

fense  of  want  of  title  be  admitted  in  any  case  in  which  the  pur- 
chaser accepted  a  conveyance  with  notice  of  the  defect ;  for  while 
notice  of  a  defect  of  title  does  not  affect  the  right  of  the  purchaser 
to  recover  on  the  covenants  for  title,  it  will,  as  a  general  rule, 
deprive  him  of  the  right  to  rescind  the  contract  on  the  ground 
that  the  title  has  failed.26 

The  grantee  seeking  to  rescind  for  want  of  title  in  the  grantor, 
must  have  acted  promptly  on  discovery  of  the  failure  of  title,  and 
must  be  able  to  place  the  grantor  in  statu  quo.  In  a  case  in  which 
he  had  been  guilty  of  great  delay  after  discovery  of  the  want  of 
title,  and  had  also  placed  an  incumbrance  on  the  property,  he  was 
denied  relief.27 

With  these  qualifications  it  is  believed  that  little  inconvenience 

application  for  an  injunction  was  founded,  as  a  minute  outstanding  interest, 
dependent  upon  a  contingency,  observed  that  it  could  never  form  grounds  for 
rescinding  a  contract  "  at  the  instance  of  a  purchaser  who  is  in  possession 
under  a  conveyance  executed  with  full  covenants  for  quiet  possession,  from  a 
vendor  not  alleged  to  be  in  failing  circumstances,  who  made  on  the  treaty, 
a  full  communication  of  his  title.  To  grant  the  prayer  of  the  bill  would  be 
to  proclaim  encouragement  to  dishonest  dealing,  and  an  invitation  to  pur- 
chasers to  expose  latent  defects  in>  their  vendor's  title,  instead  of  curing 
them  by  enjoyment." 

29  Payne  v.  Cabell,  7  T.  B.  Mon.  (Ky.)  198.  See,  also,  Whitworth  v. 
Stuckey,  1  Rich.  Eq.  ( S.  C. )  40S,  where  it  was  said :  "  In  the  frequent 
fluctuations  of  the  commercial  prosperity  of  the  country  —  fluctuations  to 
which  our  country  seems  more  liable  than  any  other  —  there  is  a  correspond- 
ing fluctuation  in  the  value  of  property.  He  who  purchases  land  at  a  high 
price  will  be  tempted1,  when  there  follows  a  great  fall  of  value,  to  discover 
and  bring  forward  some  claim  which  may  have  the  effect  of  ridding  him  of 
his  bargain.  But  this  is  a  betrayal  of  his  vendor's  title  and  against  good 
faith.  The  case  has  occurred  of  a  vendee  who,  upon  such  a  fall  of  property, 
has  been  at  great  expense  of  time,  labor  and  money,  in  seeking  informa- 
tion from  individuals  and  searching  public  offices  in  order  to  ferret  out  a 
paramount  title,  which  there  was  not  the  remotest  probability  would  ever  fee 
prosecuted,  which  did  not  appear  to  be  known  to  the  person  in  whom  it  was 
vested,  and  which  there  was  hardly  a  probability  that  he  would  prosecute 
successfully  even  if  he  knew  it.  This  was  scarcely  less  than  a  fraud;  yet, 
according  to  the  doctrine  contended  for,  relief  ought  to  have  been  granted 
in  such  a  case,  for  there  was  clearly  an  outstanding  title  in  some  one."  An- 
derson v.  Lincoln,  5  How.  (Miss.)  279;  Gartman  v.  Jones,  24  Miss.  234; 
Merritt  v.  Hunt,  4  Ired.  Eq.  (N.  C.)  406;  Henry  v.  Elliott,  6  Jones  Eq. 
(N.  C.)  175.  Contra,  Herron  v.  Barbour,  (Okl.)  182  Pac.  243. 

*'  Johnson  v.  Williamson,  145  Ind.  645,  43  N.  E.  Rep.  1054. 


704  MARKETABLE    TITLE    TO    REAL    ESTATE. 

would  result  from  a  rule  which  would  permit  the  grantee  to  detain 
the  unpaid  purchase  money  upon  a  clear  breach  of  the  covenant  of 
seisin.  Without  them,  such  a  rule  would  invite  purchasers  to  find, 
loopholes  by  which  to  escape  from  their  improvident  bargains, 
and  result  in  injury  to  the  entire  commonwealth  by  lessening  the 
stability  of  transactions  in  real  property. 

§  266.  BREACH  OF  THE  COVENANT  OF  SEISIN  AS  TO  PART  OF 
THE  PREMISES.  It  has  been  said  that  upon  a  "  partial "  breach 
of  the  covenant  of  seisin,  the  rule  limiting  the  covenantee's  recov- 
ery to  nominal  damages  before  eviction  does  not  apply,  as  where  a 
tenant  for  life  conveys  with  covenant  for  seisin  in  fee,  and  that 
in  such  a  case  the  covenantee  can  only  be  required  to  pay  the 
value  of  the  life  estate,  and  may  recoup  the  difference  between 
the  value  of  the  life  estate  and  the  fee.  The  same  authority  ex- 
tends this  principle  to  cases  in  which  the  title  to  a  specific  part  of 
the  subject  fails.28  Treating  this  as  a  proposition  that  the  cove- 
nantee may  detain  the  purchase  money  pro  tanto,  though  he  has 
not  been  disturbed  in  the  possession  of  the  part  to  which  title  has 
failed,  it  is  difficult  to  perceive  upon  what  grounds  rests  the  dis- 
tinction between  such  a  case  and  one  in  which  there  has  been  a 
complete  failure  of  title  to  the  entire  estate. 

"Rawle  Covts.   (5th  ed.)    §§  186,  187. 


CHAPTER  XXVII. 

OF  THE  DETENTION  OR  RESTITUTION  OF  THE  PURCHASE  MONEY 
WHERE  THE  DEED  CONTAINS  NO  COVENANTS  FOR  TITLE. 

GENERAL  PRINCIPLES.     §  267. 
EXCEPTION.     VOID   CONVEYANCES.     §   268. 
MERGER  OF  PRIOR  AGREEMENTS.     §   269. 
MERGER  IN  CASES  OF  FRAUD.     §   270. 

RULE    IN   PENNSYLVANIA   AS   TO   DETENTION    OF    THE    PUR- 
CHASE  MONEY.     §   271. 

§  267.  GENERAL  PRINCIPLES.  The  next  rule  which  we  shall 
state  in  respect  to  the  detention  or  recovery  back  of  the  purchase 
money,  after  the  contract  has  been  executed  by  the  delivery  and 
acceptance  of  a  conveyance,  is  as  follows: 

PROPOSITION  V.1  //  the  contract  has  been  executed  by  a  con- 
veyance of  the  land  to  the  purchaser  without  general  covenants  for 
title,  he  can,  if  the  title  fails,  neither  recover  back  2  the  purchase 

1For  Proposition.  IV,  see  ante,  §  180. 

2 Co.  Litt.  384,  a,  note;  Sugd.  Vend.  (14th  Eng.  ed.)  251,  549.  2  Kent 
Com.  (llth  ed.)  622  (473);  Rawle  Covts.  (5th  ed.)  §  321;  Maynard  v. 
Mosely,  3  Swanst.  651;  Bree  v.  Holbech,  Doug.  654;  Urmston  v.  Pate,  4 
Cruise  Dig.  90;  Typee  v.  Webb,  14  Beav.  14;  Cripps  v.  Reade,  6  T.  R.  606; 
Thomas  v.  Powell,  2  Cox  Ch.  394;  United)  States  v.  Bank  of  Ga.,  10  Wh. 
(U.  S.)  433;  Union  Pac.  R.  Co.  v.  Barnes,  64  Fed.  Rep.  80;  Corbett  v. 
Dawkins,  54  Ala.  282;  Story  v.  Kemp,  51  Ga.  399;  Botsford  v.  Wilson,  75 
111.  132;  Xiles  v.  Harmon,  80  111.  396;  Barry  v.  Guild,  126  111.  439,  18  N. 
E.  Rep.  759;  Major  v.  Brush,  7  Ind.  232;  Jenkinson  v.  Evving,  17  Ind. 
505 ;  Starkey  v.  Neese,  30  Ind.  224 ;  Stratton  v.  Kennard,  74  Ind.  303 ;  Allen 
v.  Pegram,  16  Iowa,  172;  Weight-man  v.  Spofford,  56  Iowa,  172.  In  Louis- 
inaa,  where  the  cavil  law  prevails  and  the  rule  caveat  emjttor  has  but  little 
foothold,  it  has  nevertheless  been  held  that  a  purchaser  taking  a  conveyance 
with  special  warranty,  and  warranty  of  only  such  title  as  the  vendor  had 
under  a  particular  grant,  was  not  entitled  to  compensation  on  failure  of  the 
title  through  a  defect  not  covered  by  the  warranty.  Pilcher  v.  Prewitt,  10 
La.  Ann.  568;  Lyons  v.  Fitzpatrick,  52  La.  Ann.  697,  27  So.  Rep.  110.  To  the 
text:  Getchell  v.  Chase,  37  N.  H.  106;  Bates  v.  Delavan,  5  Paige  Ch. 
(X.  Y.)  306;  Banks  v.  Walker,  2  Sandf.  Ch.  (X.  Y.)  348;  Whittemore  v. 
Farrington,  7  Hun  (N.  Y.),  392;  Granger  v.  Olcott,  1  Lans.  (N.  Y.)  169; 
Thorp  v.  Keokuk  Coal  Co.,  48  N.  Y.  253;  Wheeler  v.  State,  190  N.  Y.  406, 
83  N.  E.  54,  123  Am.  St.  Rep.  555;  Drott  v.  Stevens,  163  Wise.  571,  158 
N.  W.  329;  St.  Francis  Levee  Dist.  v.  Lumber  Co.,  86  Ark.  221,  110  S.  W. 
89  [705] 


706  MARKETABLE    TITLE    TO    REAL    ESTATE. 

money,  nor  detain*  that  which  remains  -unpaid,  either  at  Jaw  or 
in  equity;  unless  the  vendor  was  guilty  of  fraud,  or  the  contract 
was  founded  in  mistake  of  the  parties  as  to  some  fad  upon  which 
the  title  depended. 

805;  Goodman  v.  Hadley,  (Tex.  Civ.  App.)  122  S.  W.  282;  Joyce  v.  Ryan, 
4  Gr.  (Me.)  101:  Emerson  v.  Wash.  Co.,  9  Gr.  (Me.)  94;  Soper  v.  Stevens, 
2  Shep.  (Me.)  133:  Gates  v.  Winslow,  1  Mass.  65.  In  this  case  it  was  said 
that  the  condition  of  the  purchaser  was  the  same  as  that  of  one  who  gives 
away  voluntarily  a  sum  of  money.  Earle  v.  De  Witt.  6  Allen  (Mass.),  520; 
Bemia  v.  Bridgman,  42  Minn.  496,  44  N.  W.  Rep.  793;  Pintard  v.  Martin. 
1  Sm.  4  M.  Ch.  (Miss.)  126;  Higley  v.  Smith,  1  Chip.  (Vt.)  409:  Maynard 
v.  Moseley,  3  Swanst.  655  (reported  from  Lord  NOTTINGHAM'S  MSS.),  where 
it  was  said  by  that  eminent  jurist  that  although  the  purchaser  had  been 
evicted,  "  yet  he  that  purchases  lands  without  any  covenants  or  warranties 
against  prior  titles,  as  here,  where  the  defendants  sold  only  their  own  title, 
if  the  land  be  afterward  evicted  by  an  older  title,  can  never  exhibit  a  bill  in 
equity  to  have  his  purchase  money  again  upon  that  account;  possibly  there 
may  be  equity  to  stop  the  payment  of  such  purchase  money  as  is  behind,  but 
never  to  recover  what  is  paid,  for  the  chancery  mends  no  man's  bargain, 
though  it  sometimes  mends  his  assurance;  and  it  cannot  be  truly  said  that 
the  defendants  keep  the  money  for  nothing,  since  they  have  done  all  which 
was  agreed  to  be  done  for  it,  but  if  the  plaintiff  had  bought  that  which  falls 
out  to  lie  worth  nothing,  he  can  complain  of  none  but  himself."  In  Bree  v. 
Ilolbcch,  Doug.  654,  a  leading  English  case,  a  personal  representative  found 
among  the  papers  of  his  testator  a  mortgage  deed,  and  assigned  it  for  the 
mortgage  money,  affirming  and  reciting  in  the  deed  of  assignment  that  it  was 
a  mortgage  deed  made  or  mentioned  to  be  made,  between  the  mortgagor  and 
mortgagee  for  that  sum.  It  was  decided  that  the  assignee  could  not  recover 
back  the  mortgage  money,  though  the  mortgage  was  a  forgery,  unless  the 
assignor  knew  it  to  be  a  forgery.  The  question  was  whether  there  was  any 
fraud.  If  the  personal  representative  had  discovered  the  forgery  and  then 
assigned  the  mortgage  as  a  true  security  it  would  have  been  different.  He 
did  not  covenant  for  the  goodness  of  the  title,  but  only  that  neither  he  nor 
the  testator  had  inrumbered  the  estate.  It  was  incumbent  on  the  assignee  to 
look  to  the  goodness  of  it. 

•1  Sugd.  Vend.  (14th  Eng.  ed.)  251;  2d.  id.  549,  552;  Rawle  Covts. 
(5th  ed.)  8  3*21:  Ro»wall  v.  Vaughan,  2  Cro.  196;  Greenleaf  v.  Cook,  2  Wh. 
(U.  8.)  13;  Noonan  v.  Leo,  2  Black  (U.  S.)  499:  Buckner  v.  Street.  15  Fed. 
Rep.  365;  Griel  v.  Lomax.  9ft  Ala.  135,  5  So.  Rep.  325,  06.  diet.;  Strong  v. 
Waddell,  56  Ala.  471;  Crowell  v.  Packard,  35  Ark.  348:  Alexander  v. 
McCauley,  22  Ark.  553;  Reese  v.  Gordon.  19  Cal.  147;  Hastings  v.  O'Donnell. 
40  Cal.  198;  O'Sullivan  v.  Griffith,  153  Cal.  602,  95  Pac.  873:  Barkhamstead 
v.  Case,  5  Conn.  528,  13  Am.  Dec.  92;  McDonald  v.  Beall.  55  Ga.  2SS;  Patten 
v.  Stewart,  24  Ind.  332;  Bethell  v.  Bcthell,  92  Ind.  318;  Gibson  v.  Richart, 
83  Ind.  313:  Homer  v.  Lowe,  150  Ind.  406,  04  N.  E.  Rep.  218:  Bramlt  v. 
FoHter,  5  Cl.  (lo.)  287;  Butler  v.  MJller,  16  B.  Mon.  (Ky.)  627;  Middles- 


DETECTION  OR  RESTITUTION   OF    THE   PURCHASE    MONEY.       707 

This  proposition  forms,  so  to  speak,  the  most  conspicuous  land- 
mark in  the  outlines  of  the  law  denning  and  limiting  the  right  of 
the  purchaser  of  lands  to  relief  at  law  or  in  equity  in  case  the  title 
fails.  The  rule  therein  formulated  has  been  acknowledged  from 
an  early  period,  and  has  been  followed,  with  few  exceptions,  both 
in  England  and  America  down  to  the  present  time.  The  reasons 
for  the  rule  are  clear  and  satisfactory.  They  are,  in  the  first 
place,  that  a  purchaser  who  has  failed  to  protect  himself  by  de- 
manding appropriate  covenants,  is  not  entitled  to  relief;  and,  in 
the  second  place,  that  if  covenants  were  demanded  and  refused, 
the  vendor  should  not  be  held  liable  for  defects,  the  risk  of  which 
he  expressly  declined  to  assume.  The  purchaser  is  still  less  en- 
titled to  relief  if  he  makes  a  catching  bargain,  that  is,  agrees  to 
assume  the  risk  of  the  title,  and  to  accept  a  conveyance  without 
covenants.4  "'Such  deeds,"  it  has  been  said,  "  are  made  because 

kauff  v.  Barrick,  4  Gill  (Md.),  290;  Smith  v.  Chaney,  4  Md.  Ch.  246; 
Mitchell  v.  Christopher,  (Minn.)  58  X.  W.  Rep.  873;  Hulett  v.  Hamilton, 
(Minn.)  61  X.  W.  Rep.  672;  Insurance  Co.  v.  Marshall,  (Minn.)  57  X.  W. 
Rep.  658;  Pritchard  v.  Steamboat  Co.,  169  X.  C.  457,  86  S.  E.  171,  L.  R.  Ann. 
1916  A.  961.  Xorton  v.  Stroud  Bank,  17  Okl.  295,  87  Pac.  848.  A  rule 
varying  from  that  stated  in  the  text  exists  in  the  State  of  Pennsylvania. 
See  post,  this  chapter,  §  632;  Mclntyre  v.  Long,  71  Tex.  86,  8  S.  W.  Rep. 
622;  Heisch  v.  Adams,  (Tex.)  16  S.  W.  Rep.  790;  Scott  v.  Slaughter 
(Tex.  Civ.  App.),  80  S.  W.  Rep.  643;  Baldwin  v.  Drew,  (Tex.  Civ. 
App.)  180  S.  W.  614;  Commth.  v  McClanachan,  4  Rand  (Va.)  482.  In 
Scudder  v.  Andrews,  2  McL.  (U.  S.)  464,  n,  and  Wiley  v.  White,  3 
Stew.  &  P.  (Ala.)  355;  Gray  v.  Ward  (Tenn.  Ch.  App.),  52  S.  W.  Rep. 
1028,  and  perhaps  in  a  few  other  cases,  besides  the  Pennsylvania  and  South 
Carolina  decisions  hereafter  noticed,  there  are  dicta  to  the  effect  that  the 
purchase  money  may  be  detained  on  failure  of  the  title,  notwithstanding  the 
absence  of  covenants  in  the  conveyance.  There  are  no  authorities  cited  in 
support  of  these  intimations.  In  Louisiana  where  the  civil  law  prevails, 
it  has  been  held  that  a  purchaser  with  special  warranty  and  notice  of  a 
government  suit  affecting  the  title,  who  has  never  been  evicted  and  prob- 
ably never  will  be,  and  who  has  not  impugned  his  vendor's  title,  cannot 
insist  on  security  against  hostile  claims.  Pilcher  v.  Prewitt,  10  La.  Ann. 
568;  Medina  v.  Stoughton,  1  Salk.  211,  per  Lord  HOLT:  "If  the  seller  of 
goods  have  not  the  possession,  it  behooves  the  purchaser  to  take  care, 
caveat  emptor,  to  have  an  express  warranty,  or  a  good  title;  and  so  it  is  in 
tlie  case  of  land,  whether  the  seller  be  in  or  out  of  possession,  for  the  seller 
cannot  have  them  without  a  title,  and  the  buyer  is  at  his  peril  to  see  to  it." 
4  Breckenridge  v.  Waters,  5  T.  B.  Mon.  (Ky.)  150,  17  Am.  Dec.  46;  Butter 
v.  Miller,  15  B.  Mon.  (Ky.)  617. 


708  MARKETABLE    TITLE    TO    REAL    ESTATE. 

the  vendor  is  unwilling  to  warrant  the  title;  they  are  accepted 
because  the  grantee  is  willing  to  take  the  hazard  of  the  title  and 
believes  it  worth  the  price  he  pays  for  it,  or  agrees  to  pay.''  ;  These 
observations  undoubtedly  apply  with  full  force  in  a  locality  in 
which  it  is  customary  to  give  general  covenants  of  warranty,  but 
lose  much  of  their  application  wherever  it  is  the  custom  to  give 
only  a  quit  claim,  or  a  conveyance  with  limited  or  special  cove- 
nants for  title.  In  the  former  case  it  is  a  fair  presumption  that 
the  attention  of  the  parties  was  drawn  to  the  state  of  the  title,  and 
that  the  purchaser  expressly  bought  merely  such  title  as  the  ven- 
dor had.  In  the  latter  case,  that  is,  where  it  is  customary  to  give 
only  limited  covenants,  no  presumption  that  the  defective  title 
was  considered  in  the  bargain  necessarily  arises.  The  purchase 
price  agreed  to  be  paid  will  generally  be  a  fair  test  of  the  real 
understanding  of  the  parties  in  this  respect.  If  the  purchaser 
pays  the  full  fee  simple  market  value  of  the  premises,  it  could 
hardly  be  presumed  that  he  knew  the  title  was  questionable,  but 
was  nevertheless  willing  to  pay  as  much  for  a  clouded  title  as  for 
one  undoubtedly  clear.  These  considerations  have,  in  one  of  the 
States  at  least,  led  to  a  great  relaxation  of  the  rule  stated  at  the 
beginning  of  this  chapter,  with  respect  to  the  right  of  the  grantee 
to  detain  the  unpaid  purchase  money  where  the  title  has  failed.6 
But  the  rule  of  the  common  law  and  that  which  prevails  in  most 
of  the  American  States  is,  without  question,  that "  a  vendor  selling 
in  good  faith  is  not  responsible  for  the  goodness  of  his  title,  beyond 
the  extent  of  the  covenants  in  his  deed.  This  rule,  experience  has 
shown,  reconciles  the  claims  of  convenience  with  the  duties  of 
good  faith.  The  purchaser  is  stimulated  to  employ  vigilance  and 
care  in  reference  to  the  things  as  to  which  they  will  secure  him 
from  injustice,  while  it  affords  no  shelter  for  bad  faith  on  either 
part."7 

The  rule  is  thus  laid  down  by  Sugden:  "If  one  sells  another's 
estate,  without  covenant  or  warranty  for  the  enjoyment,  it  is  at 
the  peril  of  him  who  buys,  because,  the  thing  being  in  the  realty, 

•M.-Ni-al  v.  Cnlkin«,  50  111.  App.   17. 

•Pout,  |  271. 

T  Language  of  the  court  in  Krfeld  v.  Woolfolk,  22  How.  (U.  S.)  328. 


DETENTION    OR    RESTITUTION    OF    THE   PURCHASE    MONEY.       709 

he  might  have  looked  into  the  title,  and  there  is  no  reason  he 
should  have  an  action  by  the  law  where  he  did  not  provide  for 
himself."  This  is  one  of  the  plainest  applications  of  the  maxim 
caveat  emptor*  For  the  purposes  of  this  rule  a  quit-claim  con- 
veyance, or  a  conveyance,  with  "  special  warranty,"  or  limited 
covenants  for  title,  is  the  same  as  a  conveyance  without  covenants 
for  title,  unless  the  defect  of  which  the  grantee  complains,  was 
caused  by  the  act  of  the  grantor  or  some  one  claiming  under  him.9 
So,  if  the  warranty  be  against  a  particular  specified  claim,  the 
covenantee  cannot  complain  of  the  loss  of  the  land  through  other 
claims.10 

If  the  purchaser  accept  a  deed  without  covenants  for  title,  that 
is,  a  mere  quit-claim,  the  fact  that  he  did  so  under  protest,  claim- 
ing the  right  under  his  contract  to  require  a  deed  with  a  covenant 
against  the  grantor's  acts,  has  been  held  not  to  entitle  him  to 
detain  the  purchase  money  on  failure  of  the  title  and  loss  of  part 
of  the  premises ;  even  though  the  defect  in  the  title  consisted  of  a 
prior  conveyance  by  the  vendor  himself.11 

In  some  cases  it  has  been  strongly  contended  that  a  sale  of 
lands  in  which  it  does  not  appear  that  the  vendor  was  aware  of 
the  infirmity  of  his  title,  establishes  a  case  of  mistake  as  to  the 
title,  and  affords  ground  for  relief  if  the  vendor  conveyed  with 
special  or  limited  covenants.  Such  a  doctrine  would  provide  an 
escape  for  the  purchaser  from  nearly  every  improvident  bargain, 
if  the  title  should  be  faulty,  and  the  better  opinion  seems  to  be 
that  the  vendee  taking  a  quit-claim  deed,  is  entitled  to  no  relief 
on  the  ground  of  mistake,  unless  the  mistake  is  as  to  the  existence 
or  non-existence  of  some  particular  fact  upon  which  the  validity 
of  the  vendor's  title  depends.  The  vendor  may  feel  assured  of 

81  Sugd.  Vend.  (8th  Am.  ed.)   534  (356). 

9  Cross  V.  Xoble,,  67  Pa.  St.   78.     The  grantee  may,  by  his  conduct,  estop 
himself  from  claiming  that  there  has  been  a  breach  of  warranty;   as  where, 
knowing  the  objections  to  the  title,  he  took  a  deed  with  special  warranty, 
and  agreed  to  a  compromise  judgment  in  favor  of  adverse  claimants  of  the 
land.     Sour  Lake  Co.  v.  Jackson,  (Tex.  Civ.  App.)   130  S.  W.  662. 

10  Terrell  v.  Herron,  4  J.  J.  Marsh.    (Ky.)    519;   Breckenridge  v.  Waters,  5 
T.  B.  Mon.    (Ky.)    154,  17  Am.  Dec.  46;   Morrison  v.  Caldwell,  5  T.  B.  Mon. 
(Ky.)    439,  17  Am.  Dec.  84. 

11  Porter  v.  Cook,  114=  Wis.  60,  80  X.  W.  Rep.  823. 


710  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

the  sufficiency  of  his  title,  yet  be  unwilling  to  insure  the  purchaser 
against  recondite  claims,  which  the  most  searching  investigation 
might  fail  to  disclose.12  If  the  deed  contain  special  or  limited 
covenants  only,  and  it  was  executed  in  a  locality  or  section  where 
the  practice  is  to  insert  general  covenants,  it  will  be  presumed 
that  the  parties  knew  or  suspected  that  the  title  was  defective, 
and  that  the  purchaser  agreed  to  take  merely  such  title  as  the 
vendor  could  make.13  It  has  also  been  contended  that  the  grantee 
should  be  permitted  to  recover  back  the  purchase  money  when  he 
loses  the  estate,  without  regard  to  the  question  of  covenants  for 
title,  upon  the  principle  of  the  common  law  enounced  in  the  case 
of  Moses  v.  McFerlan,  that  assumpsit  will  lie  in  any  case  to  re- 
cover money  which  the  defendant,  ex  cequo  et  bono,  ought  not  to 
retain  in  his  hands.14  But  it  is  generally  considered  that  this  rule 
must  be  subordinated  to  that  other  principle  of  the  common  law, 
caveat  emptor. 

The  rule  that  a  purchaser  who  has  taken  no  covenants  for  title 
can  have  no  relief  if  evicted  from  the  premises  by  one  having  a 
better  right,  is  satisfactory  in  all  cases  in  which  it  appears  that 
the  purchaser  intended  to  accept  the  risks  of  a  defective  title,  pro- 
vided that  rule  be  limited  to  cases  in  which  the  estate  is  ln-i 
through  a  defect  in  the  title  proper,  that  is,  through  the  assertion 
of  an  outstanding  paramount  title  in  a  stranger.  But  it  is  not 
easy  to  perceive  any  sound  reason  why  a  purchaser  who  pays  off 
a  prior  incumbrance  on  the  land,  or  who  redeems  from  a  pur- 
chaser under  such  incumbrance,  should  not  be  surrogated  to  tin- 
rights  of  the  incumbrancer  without  regard  to  the  existence  or  non- 

11  Clare  v.  Lamb,  10  L.  R,  C.  P.  334.  In  Hitchcock  v.  Giddinjrs,  4  Price, 
136.  where  relief  was  pranted  on  the  ground  of  mistake,  a  remainder  man  had 
-"M  his  interest  in  ignorance  of  the  fact  that  the  remainder  had  been  barred 
by  a  common  recovery  Buffered  by  a  tenant  in  tail.  This  was  upon  the 
principle  that  if  A.  sell  property  to  B.,  under  the  impression  that  it  is  still 
in  existence,  when,  in  fart,  it  has  been  destroyed,  there  it  a  mistake  of  fact 
which  entitles  B.  to  detain  or  recover  back  the  purchase  money.  See  post, 
ch.  35,  "Mistake." 

"Oliver  v.  Piatt,  3  How.  (U.  8.)  41O;  Miller  v.  Kml.-y.  23  Ark.  743: 
Wood  folk  v.  lilount.  3  Hayw.  (Tenn.)  147,  9  Am.  Dec.  736;  Lowry  v.  Brown, 
1  Coldw.  (Tenn.)  459. 

"2  Burr.  1012. 


DETENTION   OR    RESTITUTION   OF   THE   PURCHASE    MONEY.       711 

existence  of  covenants  for  title  in  the  conveyance  under  which  he 
holds,  and  allowed  to  set  off  the  incumbrances  against  the  unpaid 
purchase  money.  The  doctrine  of  subrogation  is  the  creature  of 
equity,  and  is  in  no  wise  dependent  upon  any  contract  or  covenant 
between  the  parties.15  The  incumbrancer  might  subject  the  estate 
in  the  hands  of  the  vendor  to  the  payment  of  his  debt,  and  his 
assignee  would  have  the  same  right.  Inasmuch,  then,  as  any  per- 
son buying  the  incumbrance,  or  paying  it  off,  other  than  a  mere 
volunteer,  would  be  accorded  that  right,  justice  would-  seem  to 
require  that  a  purchaser,  paying  off  the  incumbrance  to  protect 
his  estate,  should  be  treated-  as  an  equitable  assignee  of  the  rights, 
powers  and  privileges  of  the  incumbrancer,  though  he  took  a  con- 
veyance without  covenants  for  title;  unless,  indeed,  it  should 
appear  that  the  existence  of  the  incumbrance  was  known  to  him 
and  influenced  the  consideration  of  the  conveyance. 

It  is  suggested  that  in  those  localities  in  which  it  is  the  custom 
to  convey  with  special  warranty  only,  the  purchaser  should  insist 
upon  a  provision  in  the  conveyance  by  which  he  would  have  the 
right  to  detain  the  purchase  money  and  surrender  the  estate  to 
the  vendor,  if  a  paramount  title  thereto  should  be  asserted  in  the 
future.  But  if  such  an  agreement  should  be  made,  care  should 
be  taken  to  see  that  it  is  actually  inserted  in  the  conveyance.  We 
shall  see  that  similar  agreements,  forming  part  of  the  executory 
contract  of  sale,  have  been  held  to  be  merged  in  a  conveyance  of 
the  premises  without  warranty,  and  were,  therefore,  unavailable 
to  the  purchaser  where  evicted  by  an  adverse  claimant.16 

§  268.  EXCEPTION.  VOID  CONVEYANCE.  An  exception  to 
the  rule  that  the  purchaser  cannot  recover  back  or  detain  the  pur- 
chase money  in  a  case  where  he  has  taken  a  conveyance  without 
covenants  for  title  has  been  held  to  exist  in  those  cases  where,  for 
want  of  authority  in  the  vendor  to  convey,  the  deed  is  absolutely 
void,17  as  where  the  sale  and  conveyance  was  made  by  an  assignee 

15  Sheldon  Subrogation,  ch.  1.  Compare,  Hancock  v.  Wiggins,  2S  Ind.  App. 
449,  63  N.  E.  Rep.  242. 

"M  Post,  §  269. 

"Shearer  v.  Fowler,  7  Mass.  31;  Williams  v.  Reed,  5  Pick.  (Mass.)  480, 
where  the  question  rose  upon  a  garnishment  of  the  vendor  by  a  creditor  of 
the  vendee,  the  creditor  claiming  that  the  vendee  was  entitled  to  a  return  of 


712  MARKETABLE    TITLE    TO    REAL    ESTATE. 

in  bankruptcy  who  had  no  authority  for  want  of  jurisdiction  in 
the  court  to  appoint  him.18  So,  also,  where  the  grantor,  an  ad- 
ministrator, had  acquired  title  by  purchasing  the  premises  at  his 
own  sale  and  had  paid  the  purchase  money  out  of  the  funds  of  the 
estate.19  So,  where  a  married  woman,  who  had  not  been  privily 
examined  when  she  joined  her  husband  in  executing  a  deed; 
ejected  the  purchaser,  the  representatives  of  the  husband  were 
restrained  from  collecting  the  purchase  money.20  It  has  been  held 
that  if  the  grantor  be  a  married  woman,  and  her  deed  be  void 
for  non-joinder  of  her  husband  or  other  reason,  the  purchaser  can- 
not recover  back  the  purchase  money  from  her,  unless  the  same 
remains  undisposed  of  in  her  hands,  or  has  been  converted  into 
other  property  so  that  it  can  be  traced.21  The  rule  that  the 
grantee  is  entitled  to  no  redress  where  the  deed  does  not  contain 
covenants  of  title,  does  not  apply  where  the  conveyance  was  of 
lands  forming  a  part  of  the  public  domain  to  which  the  grantor 
had  no  title.  The  reason  for  this  exception  is  that  public  lands 
cannot  be  made  the  subject-matter  of  private  contract,  and  such 
a  conveyance,  being  utterly  void,  the  grantee  therein  is  entitled 

the  purchase  money,  and  seeking  to  subject  it  to  his  claim.  Dill  v.  Ware- 
ham,  7  Mtet.  (Mass.)  438;  Holden  v.  Curtis.  2  X.  H.  61. 

"Earle  v.  Beckford1,  6  Allen   (Mass.),  549:  83  Am.  Dec.  651. 

"Beck  v.  Ulrieh,  19  Pa.  St.  636,  53  Am.  Dec.  507. 

"Lane  v.  Patrick,  3  Murph.   (N.  C.)   473. 

"Scott  v.  Battle,  85  N.  C.  184,  191,  30  Am.  Rep.  694,  whore  it  was  said: 
"  If  in  a  case  like  the  present  a  feme  covert  should  retain  and  have  actually 
in  hand  the  money  paJd  her  as  the  consideration  for  her  imperfect  and  dis- 
affirmed contract,  her  vendee  would  be  permitted  to  recover  the  same  at  law, 
or  if  she  had  converted  it  into  other  property  so  as  to  lie  traceable,  he  might 
pursue  it  in  its  new  shape  by  a  proceeding  in  rem,  and  subject  it  to  the  satis- 
faction of  his  demand.  But  if  nhe  has  consumed  it,  as  it  is  admitted  thin 
plaintiff  has  done,  the  party  paying  it  is  without  remedy,  and  this  because 
of  the  policy  of  the  law  which  forbid*  all  dealings  with  feme*  covert,  unless 
conducted  in  the  manner  prescribed  by  the  statute,  and  which  throws  the 
risk  in  every  such  case  upon  the  party  that  knowingly  deals  with  her."  See, 
also,  Martin  v.  Dwelly,  6  Wend.  (N.  Y.)  9,  21  Am.  Dec.  2*5;  Jones  v.  Cohen, 
82  N".  C.  75,  81.  A  contrary  view  to  the  above  was  taken  in  Shroyer  v. 
Nickel!,  55  Mo.  264.  where  it  was  held  that  a  feme  covert  grantor,  suing 
to  recover  the  premises,  her  deed  l*ing  void  for  want  of  proper  acknowledg- 
ment, moat  refund  the  purchase  money,  and  judgment  in  her  favor  wa«  made 
conditional  upon  such  repayment.  This  seems  the  more  equitable  view. 


DETENTION    OR    RESTITUTION   OF    THE   PURCHASE   MONEY.       713 

to  have  the  purchase  money  restored,  and  he  may  recover  it  back 
in  assumpsit.22 

These  principles  have  been  extended  to  a  case  in  which  the  void 
conveyance  contained  covenants  for  title,  and  the  grantee  had  not 
been  disturbed  in  the  possession.  In  that  case,  the  conveyance  was 
by  an  officer  of  a  court  under  an  order  which  was  void  for  want  of 
jurisdiction.  It  was  held  that  the  grantee  might  detain  the  pur- 
chase money,  though  the  conveyance  contained  covenants  for  title, 
and  the  grantee  had  not  been  evicted  or  disturbed  by  adverse 
claimants.23 

The  rule  that  the  purchaser  cannot  recover  back  the  purchase 
money  when  the  contract  has  been  performed  on  the  part  of  the 
vendor  by  the  execution  of  a  conveyance,  does  not  apply  where  the 

"Lamb  v.  James,  8  Tex.  485,  citing  Garber  v.  Armentrout,  32  Grat.  (Va.) 
235;  Lawson's  Rights  &  Rein.  §  3691. 

23Puckett  v.  McDonald,  6  How.  (Miss.)  269.  The  court  said  in  this  case: 
"  We  freely  admit  the  doctrine  that  where  the  vendee  of  land  is  let  into 
possession  under  a  deed  with  full  covenants,  and  there  has  been  no  eviction 
nor  any  fraud,  that  he  cannot  resist  the  payment  of  the  purchase  money  on 
the  alleged  ground  of  a  defect  of  title.  In  such  case,  he  is  driven  to  his 
remedy  upon  the  covenants  in  his  deed.  This  case,  however,  is  widely  differ- 
ent from  those  where  this  doctrine  is  applied.  Here  the  vendors  were  only 
acting  as  trustees  in  carrying  into  execution  an  order  of  the  probate  court. 
That  order  is  void,  and  consequently  nothing  passes  or  can  pass  by  their 
subsequent  act.  The  sale  is  virtually  made  by  the  court,  and  the  admin- 
istrators act  only  as  commissioners  to  execute  the  order  of  sale.  Their 
covenants  in  such  circumstances  cannot  furnish  a  foundation  upon  which 
an  action  can  be  maintained  against  them  personally,  nor  any  protection  to 
the  vendee;  nor  can  the  vendee  be  supposed  to  place  any  reliance  upon  such 
assurances,  since  the  contract  itself,  from  its  nature,  is  intended  to  convey 
only  the  title  of  the  deceased  (the  sale  of  the  decedent's  lands  had  been 
ordered  on  an  ex  parte  application  of  his  administrators  without  notice  to 
the  heirs).  The  purchaser  must  necessarily  in  such  case  rely  upon  the  title 
of  the  deceased,  and  the  validity  of  the  order  of  sale  by  the  court.  This  view 
of  the  subject  appears  to  be  fully  sustained  by  the  authorities.  See  2  Stew. 
(Ala.)  335  (Wiley  v.  White)  ;  S  Mass.  46  (Bliss  v.  Xegus).  It  is  absolutely 
void,  and  so  shown  to  be  by  the  record  of  the  court.  No  eviction  is*,  therefore, 
necessary,  since  the  paramount  title  of  the  heirs  is  as  effectually  established 
by  the  evidence  as  it  could  be  by  the  record  of  eviction."  See,  as  to  the 
necessity  of  surrender  of  the  premises  in  the  case  of  a  void  executory  con- 
tract, ante,  §  263. 

90 


714  MAKKKTABLE    TITLE    TO    REAL    ESTATE. 

conveyance  is  rejected  by  the  vendee  as  being  insufficient  and  not 
such  as  he  is  entitled  to  receive  under  the  contract.24 

§  2G9.  MERGER  IN  THE  CONVEYANCE  OF  ALL  AGREEMENTS 
RESPECTING  THE  TITLE.  All  agreements  between  the  parties 
respecting  the  title,  whether  verbal  or  in  writing,  are,  as  a  general 
rule,  merged  in  the  conveyance  of  the  premises;  so  that,  notwith- 
.-tanding  an  agreement  by  the  vendor  that  the  purchase  money 
hould  be  applied  to  the  removal  of  adverse  claims,  or  should  be 
withheld  if  the  title  failed,  the  purchaser,  accepting  a  conveyance 
without  covenants  for  title,  will,  in  the  absence  of  fraud  or  mis- 
take, be  compelled  to  pay  the  purchase  money.25  And  promises, 
express  or  implied,  to  give  a  good  title  are  merged  in  a  conveyance 

*«  Guttsohliek  v.  Bank  of  the  Metropolis,  5  Cranch  (C.  C.),  435.  In  this 
case,  it  seems  that  the  purchaser  rejected  the  deed  on  the  ground  of  in- 
sufficient execution  liy  the  vendor,  a  bank,  the  deed  being  from  the  president 
of  the  bank,  under  his  private  seal,  and  not  under  the  seal  of  the  corporation. 
The  court  said  that  the  purchaser  might  offer  the  deed  in  evidence  with  other 
facts  showing  the  title  to  be  defective. 

"Rawle  Covts.  (5th  ed.)  §  320;  Howes  v.  Barker,  3  Johns.  (N.  Y.)  506, 
3  Am.  Dec.  520,  where  it  was  held  that  this  rule  prevented  the  purchaser 
from  showing  that  there  was  a  mistake  in  the  quantity  of  land  conveyed, 
and  from  maintaining  an  action  of  assumpsit  to  recover  the  deficiency.  Fol- 
lowed in  Houghtaling  v.  Lewis,  10  Johns.  (X.  Y.)  297,  and  Bull  v.  Willard, 

0  Barb.   (N.  Y.)   641,  upon  similar  facts.     The  presumption  of  law  is,  that 
the  acceptance  of  a  deed   in  pursuance  of  articles  is  satisfaction  of  all   pre- 
viiMis  covenants,  and  where  the  conveyance  <-<nitains  none  of  the  usual  • 
nants,   the  law  supposes  that   the  grantee  agreed   to  take   the  title  at  his 
risk,  or  else  that  he  would  have  rejected  it   altogether.     Share  v.  Anderson, 
7    Serg.   &  Rawle    (Pa.),  43,    10  Am.   Dec.  421,  where  the   promise  was  to 
indemnify  the  purchaser  against  incumbninces.     Crotzer  v.  Russell,  9  Serg.  & 
R.   (Pa.)   78;  Ludwick  v.  Hunt/inger.  5  W.  &   I).   (Pa.)   51:  Shontz  v.  Brown. 
J7   I 'a.  St.  '131.  where  it  was  hi  Id  that  a  bond  to  convey  an  indefeasible  title 

merged  in  a  conveyance  with  special  warranty.     These  cases  seem  incon- 
•.t    with    later    IVnnsv  Ivania    <lc.  M<m-.      S.-e    Uose    v.    Zell,    141    Pa.    St. 

300,   21    Atl.    Rep.    770:    Whitemore    v.    Farringti.n.    7    Hun     (NT.    Y.  i . 

Griffith  v.   Kemp-hall.   1    Clark   C'h.    (X.   V       B71j    Karle  v.   De  Witt,   f,   All,  n 

(Mn*s.).  520;   Williams  v.  Hathaway.  1!)  Pi«k.  -7.    Hever  v.  North. 

107    Ind.  545.  S  N.   K.  Rep.  57<!:    IMiilhrook   v.    Km-wilcr.  f>2  Ind.  ftjiii;    I..-   v. 

Hill.    102   I  nil.   42,   1   N.    K.    Hep.   fxl;    Thompson   v.   Christian,   28  Ala. 

S.-it/inger  v.  Weaver,  1  Rawle  (Pa.).  377;  Jones  v.  Wood.  Hi  Pa.  St.  'J.~i.    l'm:i 
^eldni   v.   William-.  !>  Watts    (Pa.),   12;    I'.rown   v.    Morehead.   s   B 

(Pa.)   500;  Anderson  v.  Ixjng,  10  S.  &  R.    (Pa.)   55.  and   Penn.-ylvania  cases 

1  ited  infra,  this  section.     In  Jolm.son  v.  llailmrn.  3  Keyes  (N.  Y.),  12r».  it   \\;i- 
held  that  an  t-xccni  ment.  whether  written  or  oral,  is  Tiot   merged  in 


DETENTION    OK    RESTITUTION   OF    THE   PURCHASE    MONEY.       715 

without  covenants.26  This  doctrine  has  also  been  applied  in  exon- 
eration of  the  purchaser.  Thus,  it  has  been  held  that  an  agree- 
ment of  the  purchaser  to  erect  a  building  of  a  certain  value  on  the 
granted  premises,  was  merged  in  a  conveyance  of  the  premises 
subsequently  made,  in  which  such  agreement  was  not  mentioned.27 
The  case  of  Smith  v.  Chaney 28  affords  a  good  illustration  of  this 
rule.  There  the  vendor  had  agreed  in  writing  at  the  time  of  the 
sale  to  abate  the  purchase  money  in  proportion  to  the  quantity  of 
the  land  sold  of  which  peaceable  possession  could  not  be  given. 
Afterwards  the  purchaser  accepted  a  conveyance  of  the  premises 
without  covenant-s,  and  having  lost  a  part  of  the  land  through 

a  subsequent  writing  by  way  of  partial  execution,  unless  the  latter  is  ac- 
cepted in  substitution  or  in  full  performance  of  the  contract.  In  Coleman  v. 
Hart,  25  Ind.  256,  it  was  said  that  if  the  agreement  was  verbal  it  would  be 
merged  in  the  covenants  of  the  deed1;  and  this  upon  the  familiar  principle 
that  a  written  contract  is  conclusively  presumed  to  include  all  contempo- 
raneous agreements  between  the  parties.  The  rule  under  consideration,  how- 
ever, obviously  depends  upon  a  different  principle  of  wider  application,  which 
is  that  the  conveyance  is  a  second  contract  of  a  solemn  character,  superseding 
all  former  contracts  relating  to  the  title,  whether  verbal  or  in  writing.  In 
Kramer  v.  Ricke,  70  Iowa,  535,  2i5  N.  W.  Rep.  278,  there  was  a  conveyance 
with  warranty  to  the  purchaser,  and  a  contemporaneous  agreement  in  writing 
by  the  vendor  to  remove  all  adverse  claims  at  his  own  expense.  In  an  action 
for  the  purchase  money  the  purchas«r  defended  on  the  ground  that  the 
plaintiff  had  not  perfected  the  title  as  agreed,  and  the  agreement  in  question 
was  admitted  in  evidence.  The  question  of  merger  of  the  agreement  in  the 
conveyance  was  not  raised;  the  court  and  the  parties  seem  to  have  assumed 
that  the  agreement  was  properly  admitted  in  evidence.  In  a  case  in  which 
the  purchaser  took  a  quit-claim  deed  of  the  premises,  knowing  that  there 
was  a  defect  in  the  title,  and  the  vendor  by  a  separate  writing  agreed  to 
perfect  the  title,  but  without  specifying  any  time  therefor,  and  the  purchaser, 
at  the  request  of  the  vendor,  executed  his  note  to  a  third  person  for  the  pur- 
chase money,  it  was  held  that  the  giving  of  the  note  to  a  third  party  and 
the  taking  of  the  obligation  of  the  vendor  was  a  waiver  of  any  defense  to  the 
note  on  account  of  the  defective  title,  and  that  if  the  purchaser  had  any 
remedy  it  was  upon  the  obligation  of  the  vendor.  The  question  of  merger 
of  this  obligation  in  the  quit  claim  was  not  raised.  James  v.  Hays,  34 
Ind.  272. 

26  Clark  v.  Post,  113  N.  Y.  17,  20  N.  E.  Rep.  573. 

"West  Broadway  Real  Est.  Co.  v.  Bayliss,  (Md.)  31  Atl.  Rep.  442.  The 
question  how  far  this  decision  is  in  conflict  with  the  rule  that  collateral 
stipulations  of  which  the  deed  is  not  necessarily  a  performance  are  not 
merged  therein,  deserves  consideration.  Post,  this  chapter. 

*  4  Md.  Dec.  246. 


716  MARKETABLE:  TITLE  TO  REAL  ESTATE. 

defect  of  title,  sought  to  restrain  the  collection  of  the  purchase 
money  by  injunction,  but  the  court  said :  "  This  deed  must  be 
understood  as  taking  the  place  of  all  previous  agreements  upon  the 
subject,  and  as  containing  the  full  and  entire  contract  of  the 
parties;  and  yet  we  do  not  find  in  it  any  covenant  in  regard  to  the 
title  of  the  vendor.  It  seems  to  me  that  if  the  purchaser  had 
designed  to  guard  himself  against  an  apprehended  deficiency  in 
the  number  of  acres,  or  any  other  defect  in  the  title,-  to  the  whole  or 
any  part  of  the  land,  he  should  have  taken  care  to  have  had  proper 
covenants  inserted  in  the  deed." 

The  foregoing  rule  has  been  greatly  modified  in  the  State  of 
Pennsylvania.  It  will  be  seen  hereafter  that  a  peculiar  doctrine 
obtains  in  that  State  by  which  a  purchaser  who  has  taken  a  convey- 
ance without  covenants  for  title  in  ignorance  of  any  objections  to 
the  title  is  permitted  to  detain  the  purchase  money  upon  failure  of 
the  title.29  Another  class  of  decisions  there,  having  no  necessary 
connection  with  this  doctrine,  establish  the  rule  that  an  agreement 
by  the  vendor  to  remove  incumbrances  on  the  premises,  or  to  re- 
fund the  purchase  money  if  the  title  should  fail,  and  to  reimburse 
the  vendee  for  all  costs  and  expenses  incurred,  will  not  be  merged 
in  a  deed  containing  a  covenant  of  special  warranty,  but  no  cove- 
nant which  would  embrace  such  agreement ;  and  that  if  the  title 
should  fail  or  incumbrances  should  appear  the  purchaser  may  not 
only  detain,  but  may  recover  back  the  purchase  money.  Such  an 
agreement  is  there  considered  to  be  independent  of  and  collateral 
to  the  deed,  whether  made  before  or  after  the  execution  of  the  deed, 
and  though  not  in  writing  has  been  held  not  to  be  obnoxious  to  the 
rule  that  a  written  instrument  cannot  be  added  to.  modified  <u-  ex- 
plained by  a  contemporaneous  parol  agreement.80  These  decisions 

"Post,  5  271. 

••Close  v.  Zell,  141  Pa.  St.  3flO.  21  Atl.  Rep.  770.  This  case  contains  a 
full  exposition  of  the  Pennsylvania  doctrine  stated  in  the  text.  Mr.  Ju-ti'i- 
GREKX,  delivering  the  opinion  of  the  court,  said:  "  In  the  second  count  of  the 
plaintiff's  statement  their  cause  of  action  is  substantially  set  out  as  a  pnrol 
contract  of  indemnity  against  a  defective  title  to  certain  real  e-state  conveyed 
to  the  plaintiffs  by  the  defendant's  testator,  which  was  the  operative  induce- 
ment to  the  plaint iflfa  to  purchase  the  title  from  their  vendor.  The  deed 
contained  the  usual  covenant  of  special  warranty,  but  no  covenant  of  title, 
and  as  there  is  no  breach  of  any  of  the  covenants  of  the  deed,  no  cause  of 


DETENTION    OE   RESTITUTION    OF    THE   PURCHASE    MONEY.       717 

seem  plainly  in  conflict  with  Smith  v.  Chaney,  supra,  and  with 
the  weight  of  American  authority  upon  the  point.  At  the  same 
time  it  cannot  be  denied  that  they  establish  a  rule  which  in  many 
cases  will  prevent  hardship  and  effectuate  the  intent  of  the  parties. 
It  is  not  always  that  they  can  have  the  advice  and  assistance 
of  skilled  conveyancers  in  the  execution  of  their  contracts.  The 
popular  idea  of  a  conveyance  is  that  its  principal  office  is  merely 
to  pass  the  title  of  the  grantor,  and  few  purchasers  having  a  title 
bond  or  written  contract  to  indemnify  them  against  loss  in  case 
the  title  failed,  would  consider  it  necessary  to  have  the  same  assur- 
ance repeated  in  the  conveyance.  In  the  eyes  of  the  parties  the 
one  instrument  is  as  binding  as  the  other,  and  the  merger  of  the 
indemnity  in  the  conveyance  is,  it  is  believed,  in  most  cases,  to 
make  for  them  a  contract  that  they  never  intended. 

action  arises  under  it.  This  proceeding  is,  therefore,  not  in  any  sense  a  pro- 
ceeding to  change,  alter,  modify  or  reform  the  deed  in  question  in  any  respect. 
It  is  not  alleged  or  claimed  that  any  covenant  or  stipulation  was  omitted 
from  the  deed  by  fraud,  mistake  or  accident,  but  the  deed  just  as  it  is  set 
forth  in  the  statement  in  substance,  together  with  an  allegation  that  the 
grantor  agreed  with  the  plaintiffs  at  the  time  of  the  sale  and  delivery  of  the 
deed  that  he  would  refund  to  them  the  whole  of  the  consideration  money 
paid  by  the  grantees  to  the  grantor,  and  all  interest  and  all  costs  and  ex- 
penses incurred  in  the  event  that  the  grantees  should  not  acquire  under  the 
deed  a  good  title  to  the  premises  sold.  The  question  arises  whether  such 
a  contract  is  merged  in  the  deed  subsequently  executed1  or  whether  it  survives 
the  deed  and  confers  a  cause  of  action  which  may  be  enforced  upon  a  failure 
of  the  title.  It  will  be  observed  that  the  contract,  which  in  this  case  was 
verbal,  precedes  and  is  independent  of  the  deed.  It  stipulates  for  indemnity 
against  the  consequences  of  the  taking  of  the  title  conveyed  by  the  deed.  If, 
notwithstanding  the  deed  and  the  title  thereby  sought  to  be  conveyed,  the 
grantees  subsequently  sustained  loss  by  reason  of  the  fact  that  they  acquired 
no  title  by  the  deed,  is  there  any  legal  reason  why  they  cannot  recover  from 
the  grantor  the  money  which  he  had  received  from  them  and  which  he  prom- 
ised he  would  refund  to  them  in  case  the  title  failed?  This  is  a  question 
which  has  been  several  times  adjudged  by  this  court."  The  learned  judge 
then  cited  and  reviewed  the  cases  of  Drinker  v.  Byers,  2  Pen.  &  W.  (Pa.) 
528;  Brown  v.  Moorhead,  8  S.  &  R.  (Pa.)  569;  Frederick  v.  Campbell,  13  S. 
&  R.  (Pa.)  136;  Richardson  v.  Gosser,  26  Pa.  St.  335;  Cox  v.  Henry,  32  Pa. 
St.  18,  and  Anderson  v.  Washerbaugh,  43  Pa.  St.  115,  and  continuing  said: 
"  It  thus  appears  from  the  cases  now  cited  that,  .whether  the  agreement  for 
indemnity  was  made  before  or  at  the  time  of  the  sale  or  afterwards,  the 
right  to  recover  indemnity  in  an  action  on  the  special  agreement  is  sustained, 
and  that  whether  the  agreement  was  by  writing  or  spoken  words  is  a  matter 


718  MARKETABLE    TITLE    TO    REAL    ESTATE. 

§  270.  MERGER  IN  CASES'  OF  TRAT7D.  Where  the  vendor  has 
made  fraudulent  representations  respecting  the  title,  the  accept- 
ance of  a  conveyance  will  not  merge  either  the  purchaser's  right  to 
recover  back  the  purchase  money,  or  to  recover  damages  for  the  loss 
of  his  bargain  in  an  action  for  the  deceit,31  unless  he  had  notice  of 
the  fraud  when  the  conveyance  was  made.32  A  contrary  view  of 
the  law  has  been  taken  in  one  case,33  but  that  decision  was  after- 

of  indifference.  Such  an  agreement  is  not  -merged  in  the  deed  if  made  before 
or  at  the  time  of  the  deed,  and"  is  not  destroyed  b\  a  covenant  of  general 
warranty  in  the  deed  if  m«<1e  thereafter.  The  *ame  doctrine  was-  applied  in 
the  case  of  Robinson  v.  Bakewell,  25  Pa.  St.  424.  in  an  action  upon  a  similar 
bond,  given  one  day  after  the  deed,  and  although  the  deed  contained  a  cove- 
nant of  general  warranty,  and  a  recovery  was  had  for  all  costs,  charges  and 
expenses,  inchiding  counsel  fees  incurred  in  defending  the  title.  We  again 
enforced  the  same  doctrine  in  Walker  v.  France,  112  Pa.  St.  203,  5  Atl.  Rep. 
208.  Where  the  warranty  set  up  was  entirely  in  parol.  and  preceded  the  exe- 
cution of  the  written  agreement  for  thcJ  sale  of  the  land  from  which  this  part 
of  the  contract  was  omitted.  GORDON,  J.,  said:  'That  a  written  agreement 
may  be  modified,  explained,  reformed,  or  altogether  set  aside  by  parol 
evidence  of  an  oral  promise  or  undertaking  material  to  the  subject-matter 
of  the  contract  made  by  one  of  the  parties  at  the  time  of  the  execution  of  the 
writing,  and  which  induced  the  other  p/»rty  to  put  his  name  to  it,  must  now 
be  regarded  as  a  principle  of  law  so  well  settled  as  to  preclude  discussion.'  It 
is  not  at  all  necessary  to  invoke  the  support  of  this  principle  to  sustain  the 
present  proceeding.  There  is  no  question  here  of  altering  the  deed  for  the 
lots  in  question  by  inserting  a  clause  left  o.ut  of  it.  by  mistake,  fraud  or  an  i 
dent.  The  case  is  only  cited  to  show  that  where  the  parol  stipulation  is  the 
inducing  cause  to  the  execution  of  the  written  instrument  the  law  is 
sufficiently  flexible  to  give  relief  in  this  manner,  if  the  evidence  is  of  a  per- 
fectly clear  and  satisfactory  character.  But  the  case  is  of  authority  on  the 
point  that  a  contract  in  the  nature  of  guaranty  as  to  the  quality  of  the  land 
conveyed  is  not  merged  in  the  conveyance  and  may  be  enforced  independently 
of  it."  This  case  has  been  approvingly  cited  in  McGowan  v.  Bailey,  140  Pa. 
St.  572,  23  Atl.  Rep.  372,  387;  Kemp  v.  Pennsylvania  R.  Co.,  156  Pa.  St. 
430;  Elkin  v.  Timlin,  151  Pa.  St.  491.  25  Atl.  Rep.  139.  See,  also,  Witbeck 
v.  Waine,  10  X.  Y.  535;  Bogart  v.  Burkalter,  1  Den.  (X.  Y.)  126;  Carr  v. 
Roach,  2  tyer  (N.  Y.),  25  Colvin  v.  Schell,  1  Grant's  Cas.  (Pa.)  226;  Seldi-n 
v.  William*,  9  Watts  (Pa.),  P.  See,  also.  White  v.  Murray,  218  Fed.  933. 

"Chitty  Cont.  (10th  Am.  ed.)  330.  Alvarez  v.  Brennan,  7  Cal.  503,  "S 
Am.  Dec.  274;  Wright  v.  Carillo,  22  Cal.  004;  Gwinther  v.  Gi-rding.  3  Head 
(Tenn.),  19S;  Sargent  v.  Gutterj-on,  13  X,.  H.  473;  Dupree  v.  Savage,  (Tex. 
Civ.  A  pp.)  154  S.  W.  701. 

*  Vernol  v.  Vernol,  63  X.  Y.  45.    Thweatt  v.  McLeod,  56  Ala.  375. 

"Peabody  v.  Phelps,  9  Cal.  213,  where  it  was  held  that  an  action  for  false 
and  fraudulent  representation*  a«  to  the  naked  fact  of  title  in  the  vendor  of 
real  property  cannot  be  maintained  hy  the  purchaser  under  a  conveyance  with 


DETENTION    OR    RESTITUTION    OF    THE   PURCHASE    MONEY.       719 

wards  questioned  by  the  court  in  which  it  was  rendered,  and  would 
apparently  have  been  overruled  if  so  to  do  had  been  necessary  to 

express  covenants  for  title,  his  remedy  in  such  case  being  upon  the  covenants. 
The  court,  by  FIELD,  J.,  after  observing  that  they  had  been  unable  to  find  any 
case  in  which  the  exact  point  had  been  decided,  and  after  considering  several 
analogous  cases  (Wardell  v.  Fosdick,  13  Johns  [N.  Y.]  325,  7  Am.  Dec.  383; 
Monell  v.  Colden,  13  Johns.  [N.  Y.]  396,  7  Am.  Dec.  390;  Leonard  v.  Pitney, 
5  Wend.  [N.  Y.]  31;  Culver  v.  Avery,  7  Wend.  [N.  Y.]  380,  22  Am.  Dec. 
586;  Whitney  v.  Allaire,  1  Comst.  [N.  Y.]  313;  Bostwick  v.  Lewis,  1 
Day  [Conn.],  250;  2  Am.  Dec.  73;  Wade  v.  Thurman,  2  Bibb  [Ky.],  583), 
continued :  "  In  the  execution  of  a  conveyance,  all  previous  representations 
pending  the  negotiation  for  the  purchase  are  merged.  The  instrument  con- 
tains the  final  agreement  of  the  parties  and  by  it,  in  the  absence  of  fraud,* 
their  rights  and  liabilities  are  to  be  determined."  This  case,  if  intended  to 
establish  the  proposition  that  the  acceptance  of  a  conveyance  where  the 
vendor  was  guilty  of  fraud  as  to  the  title,  waives  all  rights  consequent  upon 
the  fraud  and  confines  the  purchaser  to  his  remedy  upon  the  covenants, 
whether  he  had  or  had  not  notice  of  the  fraud  at  the  time  the  deed  was 
accepted,  would  seem  not  to  be  in  harmony  with  other  authorities.  In  2 
Sugd.  Vend.  533,  it  is  said:  "Although  the  purchase  money  has  been  paid, 
and  the  conveyance  is  executed  by  all  the  parties,  yet  if  the  defect  do  not 
appear  on  the  face  of  the  title  deeds,  and  the  vendor  was  aware  of  the  defect 
and  concealed  it  from  the  purchaser,  or  suppressed  the  instrument  by  which 
the  incumbrance  was  created,  or  on  the  face  of  which  it  appeared,  he  is  in 
every  such  case  guilty  of  a  fraud  and  the  purchaser  may  either  bring  his 
action  on  the  case,  or  file  his  bill  in  equity  for  relief."  See,  also,  1  Sugd. 
Vend.  56.  The  practical  consequence  of  forcing  the  purchaser  to  his  action 
on  the  covenants,  is  to  deprive  him  of  the  right  to  recover  damages  for  the 
loss  of  his  bargain,  the  measure  of  damages  in  that  action  being  limited  to 
the  consideration  money  and  costs  in  defending  against  the  adverse  claimant. 
Rawle  Covt.  §  159.  In  Andrus  v.  St.  Louis  Smelting  Co.,  130  U.  S.  643,  9 
Sup.  Ct.  Rep.  645,  FIELD,  J.,  who  delivered  the  opinion  in  Peabody  v.  Phelps, 
supra,  Avhen  one  of  the  justices  of  the  Supreme  Court  of  the  State  of  Cali- 
fornia stated  the  rule  thus:  "Where  the  vendor  holding  in  good  faith  under 
an  instrument  purporting  to  transfer  the  premises  to  him,  or  under  a  judicial 
determination  of  a  claim  to  them  in  his  favor,  executes  a  conveyance  to  the 
purchaser  with  a  warranty  of  title  and  a  covenant  of  peaceable  possession,  his 
previous  representations  as  to  the  validity  of  his  title,  or  the  right  of  pos- 
session which  it  gave,  are  regarded,  however  highly  colored,  as  mere  ex- 
pressions of  confidence  in  his  title,  and  are  merged  in  the  warranty  and 
covenant,  which  determines  the  extent  of  his  liability."  In  such  a  case,  it 
may  be  observed,  the  vendor  could  scarcely  be  deemed  guilty  of  fraud,  and 
the  rule  thus  laid  down  in  no  wise  conflicts  with  the  proposition  that  actual 
fraud  by  the  vendor  is  not  merged  in  the  acceptance  of  a  conveyance  without 
notice  of  the  fraud. 


*  That  is,  fraud  by  which  the  purchaser  is  induced  to  accept  the  conveyance.  a« 
d:  nmnmhed  from  fraudulent  representations  as  to  the  title  when  the  contract 
wa=i  made;  else  the  observations  of  the  court  would  appear  to  be  contradictory. 


720  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

the  decision  of  the  case.31  But  if  the  purchaser,  with  every  oppor- 
tunity of  discovering  the  fraud  of  the  vendor  by  examining  the 
records  after  the  making  of  the  contract,  and  before  its  completion 
by  a  conveyance  with  covenants  of  general  warranty,  accept  such  a 
conveyance  without  examining  the  title,  he  will  be  compelled  to 
pay  the  purchase  money  and  look  to  his  covenants  for  redress  in 
case  he  should  be  thereafter  evicted.23  If  the  matters  alleged  by 

*'  Wright  v.  Carvillo,  2'2  Cal.  604.  The  case  is  also  disapproved  in  Kimball 
v.  Saguin  (Iowa),  53  N.  W.  Rep.  116. 

"Ante,  §  104.  Griilith  v.  Kempshall.  Clarke  Ch.  (X.  V.)  076,  the  court 
faying:  "  In  this  case  the  sale  was  a  public  auction,  pursuant  to  previous 
notice.  It  may  perhaps  be  fairly  presumed  that  the  company  casually  col- 
lected at  such  auction  were  ignorant  of  the  state  of  the  title  to  the  lands 
offered  for  sale.  They  could  hardly  be  expected,  preliminary  to  bidding,  to 
have  made  searches  for  themselves  as  to  the  title.  To  obviate  any  hesitation 
on  this  ground  on  the  part  of  the  bidders,  the  defendants,  the  sellers,  by 
one  of  their  number  and  by  the  auctioneer  employed  by  them,  declared 
according  to  (the  complaint)  that  a  clear  and  unincumbered  title  to  the  lots 
•sold  would  be  given  to  those  who  might  become  purchasers.  Upon  the  faith 
of  this  title  the  bids  were  made.  What  is  the  amount  of  this  declaration  of 
the  sellers?  Unquestionably  that  the  person  so  bidding  should  have  a  clear 
and  unincumbered  title:  and  this  assurance  could  be  enforced  by  any  of  the 
purchasers  at  such  sale  before  taking  their  deeds.  The  deeds  were  not  of 
course  ready  at  the  day  of  sale.  The  purchaser,  under  this  assurance,  would 
have  or  could  claim  time  to  examine  into  the  state  of  the  title.  They  could 
not  be  compelled  to  complete  the  purchase  until  such  time  was  given  them. 
If  upon  such  examination,  they  ascertained  that  the  title  was  incumbered 
or  invalid,  they  might  abandon  their  purchases,  because  the  assurance  held 
out  at  the  sale  was  not  sustained  by  the  fact.  Or  the  purchasers  might,  if 
they  chose,  instead  of  examining  into  the  title,  take  their  deeds,  protecting 
themselves  by  proper  covenants  as  to  title  and  against  incumhranci's.  They 
have  chosen  to  take  the  latter  course.  By  so  doing,  I  apprehend,  the  n.ssur- 
ance  made  at  the  sale  is  merged  in  the  covenants  contained  in  the  deeds. 
The  execution  and  acceptance  of  the  deeds  is  the  completion  of  the  executory 
contracts  made  by  the  bidding  at  the  auction,  and  the  terms  of  that  executory 
contract  cannot  now  lie  inquired  into,  unless  there  was  fraud  in  the  repre- 
sentations HO  made.  It  seems  to  me  that  the  representations  made  at  the 
sale  were  nothing  more  than  this,  that  the  title  was  clear  and  uninrumlwred ; 
and  if  it  did  not  prove  HO,  the  bidding  at  the  sale  should  not  amount  to  a 
contract.  It  \\a.-  for  the  purchasers,  after  the  »ule  and  before  taking  their 
deeds,  to  ascertain  whether  this  was  no,  whether  the  title  was  such  as  would 
be  gatirtfactory  to  them;  or,  in  other  words,  whether  they  were  willing  to  take 
(he  deeds  and  consider  the  contract  complete  and  perfect.  They  have  chosen 
to  connider  the  contract  complete  and  perfect,  by  the  acceptance  of  deed* 
without  inquiry  or  investigation,  guarding  theineelvea  by  covenants  from 


DETENTION    OR   RESTITUTION    OF    THE   PURCHASE    MONEY.       721 

the  grantee  to  have  been  falsely  represented  to  him  by  the  vendor, 
are  equally  open  to  both  parties,  and  the  grantee  examines  the  title, 
and  relies  upon  the  evidences  furnished  by  the  public  records,  and 
not  upon  the  representation  of  the  vendor,  the  contract  will  not  be 
rescinded,  but  the  grantee  will  be  left  to  his  remedy  upon  the  cove- 
nants, if  any.36 

If  the  purchaser  expressly  contracted  for  a  good  title  and,  was 
afterwards  induced  to  accept  a  quit-claim  conveyance  through  the 
fraudulent  representations  of  the  vendor  respecting  the  title,  the 
contract  is  not  merged  in  the  conveyance,  and  the  purchaser  is 
entitled  to  a  rescission  of  the  contract  and  to  recover  back  or 
detain  the  purchase  money.37 

the  grantors.  They  have  thought  it  proper  so  to  do,  and  execute  their  mort- 
gages for  the  purchase  money,  and  further,  to  make  valuable  erections  upon 
the  premises  so  purchased.  It  is  true  the  bill  charges  that  they  did  all  this, 
relying  upon  the  truth  of  the  representations  made  by  the  sellers.  I  cannot 
think  this  allegation  will  aid  the  complainants.  They  had  abundant  means 
and  opportunities  to  ascertain  for  themselves  the  truth  of  the  representa- 
tions; and,  in  my  opinion,  these  assurances  were  given  for  the  purpose  of 
enabling  the  purchasers  so  to  do.  They  did  not  choose  to  avail  themselves 
of  such  means.  They  have  been  negligent,  and  this  court  will  hardly  feel 
itself  called  upon  to  repair,  by  its  decree,  their  want  of  diligence  and  care 
of  their  OAvn  interests  and  rights."  The  main  points  of  difference  between 
Griffith  v.  Kempshall,  supra,  and  Peabody  v.  Phelps,  supra,  are:  (1)  That 
the  first  case  was  a  suit  to  restrain  the  collection  of  the  purchase  money  on 
the  ground  of  the  vendor's  fraud  until  he  should  remove  certain  ineum- 
brances;  while  the  second  was  an  action  at  law  to  recover  damages  for  the 
deceit,  and  the  effect  of  the  decision  was  to  drive  the  plaintiff  to  his  action 
on  the  covenant,  in  which  he  could  recover  no  damages  for  the  loss  of  his 
bargain.  ( 2 )  That  in  the  first  case  there  was  a  covenant  of  general  warranty, 
while  in  the  second  the  covenant  was  limited  to  the  acts  of  the  grantor  and 
his  heir;  so  that  while  the  first  case  merely  drives  the  purchaser  to  a  dif- 
ferent form  of  redress,  the  second  case  not  only  deprives  him  of  damages  for 
the  loss  of  his  bargain  (i.  e.,  the  value  of  the  premises  in  excess  of  the  pur- 
chase money),  but  the  premises  having  been  lost  through  paramount  title 
and  not  through  any  one  claiming  under  the  grantor,  denies  him  any  relief 
whatever.  (3)  In  the  first  case  a  considerable  period  elapsed  between  the 
making  of  the  contract  and  the  acceptance  of  the  conveyance  in  which  the 
purchaser  might  have  examined  the  title.  In  the  second  case  it  seems  that 
tfie  sale  was  immediately  consummated  by  a  conveyance,  so  that  the  pur- 
chaser could  not  have  examined  the  title  without  deferring  the  conveyance. 

38  Farnsworth  v.  Duffner,  142  U.  S.  43. 

37 Rhode  v.  Alley,  27  Tex.  445,  where  it  was  said:    "It  cannot  be  questioned 

91 


722  MARKETABLE    TITLE    TO    REAL    ESTATE. 

In  a  case  in  which  the  sale  was  without  fraud  in  the  first 
instance,  false  representations  respecting  the  title,  made  by  the 
vendor  some  time  afterwards  when  a  deed  is  accepted  and  a 
security  for  the  purchase  money  given,  have  been  held  no  ground 
for  rescinding  the  contract  or  detaining  the  purchase  money.18 
It  may  be  doubted  whether  this  decision  can  be  reconciled  with 
those  which  hold  that  fraud  of  which  the  purchaser  is  ignorant  is 
not  merged  in  a  conveyance  with  covenants  for  title. 

§  271.  KULE  IN  PENNSYLVANIA.  The  decisions  in  Pennsyl- 
vania upon  the  right  of  a  purchaser  to  detain  the  purchase  money 
must  be  carefully  distinguished  from  those  rendered  elsewhere,  for 
they  establish  a  doctrine  which  does  not,  in  its  entirety,  exist  in  the 
other  States.  The  principal  features  of  that  doctrine  are  that 
wherever  the  title  of  the  vendor  fails  the  purchaser  may  detain  the 
purchase  money  whether  the  contract  be  executed  or  executory, 
and,  if  executed,  whether  the  deed  contains  covenants  for  title  or 
not,  unless  he  expressly  assumed  the  risk  of  the  title,  and  that  the 
purchaser  may  defeat  the  recovery  of  the  purchase  money  in  every 
such  case  by  showing  a  clear  outstanding  title  in  another,  or  a 
valid  iucumbrance  on  the  property  equal  to  the  purchase  money, 

that  it  is  competent  for  a  purchaser  of  land  who  has  received  a  deed  with 
special  warranty  to  show  that  a  fraud  has  been  practiced  upon  him  in  respect 
to  the  title.  If  a  vendor  of  land  has  a  perfect  title  in  himself,  his  vendee  may 
well  lie  content  to  accept  from  him  a  deed  with  special  warranty  because  such 
a  deed  would,  in  that  case,  vest  an  unimpeachable  title  in  the  vendee.  Ordi- 
narily, when  a  vendor  accepts  a  quit-claim  deed  or  a  deed  with  special  war- 
ranty, the  presumption  of  law  is  that  he  acts  upon  his  own  judgment  and 
knowledge  of  the  title,  and  he  will  not  be  heard  to  complain  that  he  has  not 
acquired  a  perfect  title.  But  where,  in  the  negotiations  preliminary  to  the 
execution  of  the  contract,  the  purchaser  stipulates  for  a  perfect  title  and  is 
afterwards  induced,  by  the  false  or  fraudulent  representations  of  the  vendor, 
to  accept  a  quit-claim  deed  with  special  warranty,  in  the  belief  that  he  U 
acquiring  a  perfect  title,  and  one  free  from  litigation  at  the  time,  he  will 
IK?  permitted  to  show  that  he  was  deceived  in  respect  to  the  title,  and  may 
be  relieved  against  such  contract."  Citing,  among  other  cases,  Hayea  v. 
Bonner,  14  Tex.  620,  in  which,  however,  the  contract  had  not  been  executed 
by  a  conveyance,  but  the  purchaser  had,  by  reason  of  the  vendor's  fraud, 
agreed  to  accept  a  quit -claim  conveyance.  See,  also,  Wilson  v.  Higbee,  02 
Fed.  Rep.  723;  Ballou  v.  Lucas,  .r>0  Iowa,  24,  12  N.  \V.  Rep.  745;  Atwood  v. 
Chapman,  68  Me.  38,  28  Am.  Kep.  5. 
"Kirkland  v.  Wade,  61  Oa.  478. 


DETENTION    OR   RESTITUTION    OF    THE   PURCHASE    MONEY.       723 

though  he  has  not  been  evicted  or  disturbed  in  the  possession.39 
The  results  of  those  decisions  may  be  conveniently  stated  in  the 
following  propositions : 

"In  Beaupland  v.  McKeen,  28  Pa.  St.  130,  70  Am.  Dec.  115,  the  court 
eaid,  WOODWARD,  J.,  delivering  the  opinion :  "  We  have  gone  further  in  Penn- 
sylvania in  relieving  purchasers  of  real  estate  from  payment  of  purchase 
money  on  the  ground  of  defects  and  incumbrances  than  courts  of  justice  have 
gone  in  any  other  State  or  country  where  the  common  law  obtains.  All  ad- 
minister not  only  equitable  relief  while  the  contract  remains  executory,  but 
after  it  has  been  executed  by  deed  made  and  delivered,  we  give  the  purchaser, 
besides  the  full  benefit  of  any  covenants  his  deed  may  contain,  the  right  to 
defend  himself  from  payment  of  the  purchase  money,  however  solemn  the 
instrument  by  which  it  is  secured,  if  he  can  show  a  clear  outstanding  defect 
or  incumbrance,  unless  he  expressly  assumes  the  risk  of  it.  In  England  and 
in  most  of  the  States  around  us  the  equitable  right  of  the  purchaser  to 
detain  unpaid  purchase  money  depends  on  the  covenants  in  his  deed.  He  is 
not  compelled  to  pay  what  he  could  recover  back  in  damages  by  action  at 
law,  but,  as  his  equity  springs  from  breach  of  a  legal  covenant,  he  has  no 
title  to  relief  where  there  is  no  covenant,  or  a  covenant  but  no  breach."  It 
must  not  be  supposed  from  this  language  that  the  presence  or  absence  of 
covenants  in  the  conveyance  to  the  purchaser  is  of  no  importance  in-  this 
State.  Under  certain  circumstances  either  is  of  the  utmost  importance,  as 
will  be  seen  hereafter. 

An  exellent  summary  of  the  Pennsylvania  doctrine  is  contained  in  the  case 
of  Wilson  v.  Cochran,  46  Pa.  St.  230,  86  Am.  Dec.  574.  It  is  there  said: 
"  The  detention  of  purchase  money  on  account  of  breaches  of  the  vendor's 
covenant  is  a  mode  of  defense  that  is  peculiar  to  our  Pennsylvania  juris- 
prudence, but  the  principle  is  well  settled  with  us  that  where  a  vendor  has 
conveyed  with  covenants  on  which  he  would  be  liable  to  the  vendee  in  dam- 
ages for  a  defect  of  title,  the  vendee  may  detain  purchase  money  to  the  extent 
which  he  would  be  entitled  to  recover  damages  upon  the  contract,  and  he  is 
not  obliged  to  restore  possession  to  his  vendor  before  or  at  the  time  of  avail- 
ing himself  of  such  a  defense.  Where  there  is  a  known  defect,  but  no  cove- 
nant or  fraud,  the  vendee  can  avail  himself  of  nothing,  being  presumed  to 
have  been  compensated  for  the  risk  in  the  collateral  advantages  of  the  bar- 
gain. But  where  there  is  a  covenant  against  a  known  defect,  he  shall  not 
detain  purchase  money  unless  the  covenant  has  been  broken.  If  the  covenant 
be  for  seisin  or  against  incumbrances,  it  is  broken  as  soon  as  made  if  a  defect 
of  title  or  incumbrance  exist,  but  if  it  be  a  covenant  of  warranty  it  binds  the 
grantor  to  defend  the  possession  against  every  claimant  of  it  by  right,  and  is 
consequently  a  covenant  against  rightful  eviction.  To  maintain  an  action 
for  breach  of  it,  an  eviction  must  be  laid  and  proved,  not  necessarily  by 
judicial  process  or  the  application  of  physical  force,  but  by  the  legal  force 
of  an  irresistible  title.  There  must  be  proof  at  the  least  of  an  involuntary 
loss  of  the  possession.  And  as  the  right  to  detain  purchase  money  is  in  the 
nature  of  an  action  on  the  covenant,  and  is  allowed  to  prevent  circuity,  the 
vendee  who  seeks  to  detain  by  virtue  of  a  covenant  of  warranty  is  as  much 


,  '24  MAKKETABLE    TITLE    TO    REAL    ESTATE. 

(1)  A  purciiaser  who  has  received  a  conveyance  of  the  purchased 
premises  may  defend  himself  against  the  payment  of  the  purchase 
money  whether  the  conveyance  be  with  or  without 40  covenants  for 
title,  wherever  there  is  a  clear  failure  of  title  on  the  part  of  the 
vendor,  and  whether  there  has  been  an  eviction  or  not,  unless  h«i 
expressly  assumed  the  risk  of  the  title,  or  unless  the  defect  of  title 
was  known  to  him  and  he  expressly  took  a  covenant  against  it  for 
his  protection.41  If  the  defect  of  title  consist  of  an  incumbrauce  it 
is  not  necessary  that  he  shall  have  discharged  it  in  order  to  avail 
himself  of  the  right  to  detain  the  purchase  money.42  Xor  i>  ir 
necessary  that  he  shall  have  restored  the  possession  of  the  premises 
to  the  vendor  before  making  such  a  defense,  if  the  retention  of  the 
premises  be  necessary  to  indemnify  him  for  what  he  has  already 
paid,43  unless  the  vendor  is  merely  seeking  to  foreclose  a  security 
for  the  purchase  money,  such  as  a  vendor'-  lien,  in  which  no  judg- 

bound  to  prove  an  eviction  as  if  he  were  plaintiff  in  an  action  of  covenant. 
Until  eviction  the  covenant  i.-i  part  of  the  consideration  of  the  purchase  money 
he  agreed  to  pay,  and  holding  the  covenant  he  may  not  withhold  the  pun-ha-t* 
money.  But  after  eviction  he  has  a  right  to  have  his  damages  deducted  from 
the  purchase  money. 

"The  expression  "without  covenants,"  as  used  here  and  in  the  following 
pages,  means  without  covenants  embracing  the  defect  of  which  tin-  pun-ha-cr 
complains.     If  the  defect  he  one  not  created  by  the  grantor  or  hi- 
conveyance  with  special  or  limited  warranty  mily  is  the  same  as  a  c«mve\ 
with  no  covenants  at  all,  as  respects  the  right  to  detain  the  purchase  nnmcy. 
v.  Noble,  67  Pa.  St.  IS. 

"  Steinhatier  v.  Witman.  1  S.  A  U.  (Pa.)  4&S,  the  lending  cast-;  Hart  v. 
Porter.  5  S.  &  M.  (Pa.i  2H1  :  Shaiv  v.  Anderson.  7  S.  &  K.  (Pa.)  (51,  10  Am. 
Her.  421;  Carnahan  v.  Hall.  Add.  (Pa.)  127 ;  Ooucher  v.  Helmhold.  I  Miles 
(Pa.)  407;  Beaupland  v.  McKeen,  28  Pa.  St.  130.  70  Am.  !>«•".  IM;  I.Iovd  v. 
K.m-ell.  IS  Pa.  St.  73;  Youngman  v.  Linn.  52  Pa.  St.  413:  Cross  v.  N.il.le.  <17 
l  St  74:  Wil>..n's  ApjM'al.  M!»  Pa.  St.  inf..  In  Seaton  v.  Harry.  4  W.  &  S. 
(Pa.  1M.  a  p;i  r»  it  ioner  \\lio  hid  taken  the  whole  premise*  at  a  valuation 
.1  lli-wed  to  detain  the  valuation  nn-ney  to  the  extent  of  an  incumbraii'  •• 
on  the  prcmNi*)  created  by  the  ancestor.  It  will  he  remembered  that  a  war- 
ranty of  title  is  implied  in  cases  of  partition  and  exchange.  Ante.  §  137. 

•Unbind  v.  Miller.  3  w.  A-  s.   (Pa.i   :;!w:  P,.ke  v.  Kelh.  i::  8.  A   i:.  165. 

In    this   rase,   however,   the   i-i-ntraet   wa-.  executory. 

"WiNun  v.  CiH-hran,  46  Pa.  St.  I      P.-yntell  v.  Spenser. 

6  Pa.  St.  256.  The  >aine  rule  exists  where  the  cm, tract  i-  UMCatOTJ.  Hen- 
•haw  v.  (;.m>,  7  Pa.  St.  117.  Hut.  <.f  MUTM,  the  pur.hu-er  mu.>t  ultimately 
K've  uj)  the  pu-.sessiiin.  He  rannot  keep  the  land  and  the  purchase  money  too. 
Congregation  v.  Mil  i  i-,. 


DETENTION    OR   RESTITUTION    OF    THE   PURCHASE    MONEY.       725 

ment  or  decree  over  against  the  purchaser  in  case  of  a  deficiency  is 
asked.  In  such  a  case,  if  none  of  the  purchase  money  has  been 
paid  and  there  has  been  no  breach  of  any  covenant  by  the  vendor, 
it  is  no  concern  of  the  purchaser  whether  the  title  be  good  or  bad 
and  he  must  restore  the  possession.44 

An  exception  to  the  rule  that  the  purchaser  may  detain  the  pur- 
chase money,  though  he  has  accepted  a  conveyance  without  cove- 
nants for  title,  exists  in  those  cases  where  there  is  a  deficiency  in 
the  quantity  of  land  conveyed,  unless  the  deficiency  is  so  great  that 
it  is  evidence  of  deceit.40  Where  the  contract  has  been  executed  by 
deed,  it  will  not  be  opened  to  allow  for  a  deficiency  in  quantity 
even  though  there  was  a  mistake  as  to  the  true  quantity.46 

(2)  The  adverse  title  or  incumbrance  which  will  justify  the  pur- 
chaser in  rescinding  the  contract  and  detaining  the  purchase  money 
after  a  deed  has  been  executed  and  where  there  has  been  no  evic- 
tion, must  not  be  merely  such  as  creates  a  doubt  as  to  the  title ;  it 
must  amount  to  a  clear  failure  of  the  title,47  and  if  an  incumbrance, 

44  Hersey  v.  Turbett,  27  Pa.  St.  424.  See,  also,  Hulfish  v.  O'Brien,  5  C.  E. 
Green  (N.  J.),  230,  and.  ante,  §  184. 

45 Bailey  v.  Snyder,  13  S.  &  R.  (Pa.)  160;  Dickinson  v.  Voorhees,  7  W.  &  S. 
(Pa.)  353;  Coughenour  v.  Stauft,  2(7  Pa.  St.  191;  Rodger*  v.  Olshoffsky,  110 
Pa.  St.  147,  2  Atl.  Rep.  44. 

48  Farmers'  Bank  v.  Galbraith,  10  Pa.  St.  490. 

47Ludwick  v.  Huntzinger,  5  W.  &  S.  (Pa.)  58;  Brick  v.  Coster,  4  W.  &  S. 
(Pa.)  494;  Culler  v.  Motzer,  13  S.  &  R.  (Pa.)  356,  15  Am.  Dec.  604;  Penn. 
v.  Preston,  2  Rawle  (Pa.),  19;  Bradford  v.  Potts,  9-  Pa.  St.  37;  Crawford  v. 
Murphy,  22  Pa.  St.  87;  Asay  v.  Lieber,  92  Pa.  St.  377;  Little  v.  Thropp, 
245  Pa.  539,  91  Atl.  924.  A  different  rule  prevails  where  the  contract  is  still 
executory.  A  suit  to  recover  purchase  money  on  articles  of  agreement  is  in 
the  nature  of  a  bill  for  specific  performance;  hence,  where  the  title  to  the 
land  is  doubtful  or  not  marketable,  the  plaintiff  cannot  recover.  Murray  v. 
Ellis,  112  Pa.  St.  492,  3  Atl.  Rep.  845;  Hertzberg  v.  Irwin,  11  Xorris  (Pa.), 
48.  In  Ludwick  v.  Huntzinger,  5  W.  &  S.  (Pa.)  58,  the  court,  after  stating 
the  rule  as-  above  when  the  contract  has  been  executed,  continued :  "  It  is 
proper  to  observe  that  a  different  principle  governs  where  the  contract  for 
the  purchase  of  land  remains  in  fieri,  and  the  action  is  brought  on  the  con- 
tract itself  with  a  view  to  enforce  the  payment  of  the  purchase  money 
according  to  its  terms.  There,  if  it  should  appear  that  the  title  of  the 
vendor  to  the  land  is  anywise  doubtful,  the  vendee  will  not  be  held  bound 
to  pay  the  purchase  money  for  it  (5  Binn.  365),  unless  it  should  also  appear 
that  he  had  expressly  agreed  to  do  so.  Dorsey  v.  Jackman,  1  S.  &  R.  (Pa.) 
42,  7  Am.  Dec.  611;  Pennsylvania  v.  Sims,  Add.  (Pa.)  9." 


726  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

it  must  equal  in  amount  the  whole  of  the  unpaid  purchase  money.48 
If  the  Encumbrance  goes  only  to  a  part  of  the  purchase  money,  or 
if  the  title  fails  as  to  part  of  the  premises  only,  the  contract  will 
not  be  rescinded,  but  the  purchase  money  will  be  abated  to  the 
extent  of  the  loss  or  injury  suffered.49 

(3)  Mere  constructive  notice  of  the  existence  of  an  ineumbrance 
or  defect  of  title,  as  where  these  are  disclosed  by  the  record  or  lie  in 
the  chain  of  the  vendor's  title,  is  not  sufficient  to  charge  the  pur- 
chaser with  notice  of  the  defective  title  and  raise  the  presumption, 
where  there  are  no  covenants,  that  he  assumed  the  risk  of  the  title.50 

*McGinnis  v.  Xoble,  7  W.  &  S.  (Pa.)  454;  Dentler  v.  Brown,  11  Pa.  St. 
298.  In  these  two  cases  it  was  also  hold  that  the  purchaser  was  not  bound 
to  pay  off  an  ineumbrance  maturing  at  a  time  when  no  installment  of  the 
purchase  money  was  due.  Harper  v.  Jeffries,  5  Whart.  (Pa.)  26;  Mellon 's 
Appeal,  32  Pa.  St.  127.  The  rule  stated  in  the  text  is  also  applicable  where 
the  contract  is  still  executory.  Garrard  v.  Lautz,  12  Pa.  St.  192;  Garrett  v. 
Crosson,  32  Pa.  St.  375;  Renshaw  v.  Gaus,  7  Pa.  St.  117. 

«*Lee  v.  Dean,  3  Whart.  (Pa.)  331;  Stehley  v.  Irwin,  8  Pa.  St.  500;  White 
v.  Lowery,  27  Pa.  St.  255;  Beaupland  v.  McKeen,  28  Pa.  St.  134,  70  Am. 
Dec.  115. 

"Thomas  v.  Harris,  43  Pa.  St.  231;  Murphy  v.  Richardson,  28  Pa.  St.  293; 
Roland  v.  Miller,  3  W.  &  S.  (Pa.)  390,  semble;  Banks  v.  Ammon,  27  Pa.  St. 
172,  semble;  Wilson  v.  Cochran,  46  Pa.  St.  232,  semble;  86  Am.  Dec.  574.  In 
Thomas  v.  Harris.  43  Pa.  St.  241,  it  was  said  upon  this  point:  "In  the  case 
now  before  us,  the  only  ground  for  a  presumption  that  the  purchaser  agreed 
to  run  the  risk  of  any  claim  of  the  widow  to  dower  is  that  he  took  a  deed 
from  her  under  a  decree  of  the  court  for  the  estate  of  the  deceased  husband, 
and  also  for  her  own  interest,  when,  it  is  said,  he  knew  or  should  have 
known  that  she  wa«  entitled  to  dmver  in  the  land  if  she  conveyed  only  her 
husband'*  interest.  No  evidence  of  actual  knowledge  is  in  the  case.  *  •  • 
He  is  chargeable,  therefore,  only  with  constructive  notice  of  any  defect  in  the 
title.  In  such  a  case  there  is  no  reason  that  a  purchaser  binds  himself  to 
pay  the  purchase  money,  no  matter  what  may  prove  the  defects  of  title.  It 
is  only  when  he  has  actual  knowledge  of  the  defect  that  he  is  presumed  to 
waive  compliance  with  the  covenant  of  his  vendor.  Were  it  not  so,  a 
vendor's  deed  on  record  to  a  third  person  would  not  excuse  a  subsequent  pur- 
chaser from  him  from  paying  all  the  agreed  purchase  money  after  he  has 
accepted  a  deed,  an  injustice  too  revolting  to  find  any  place  in  the  law. 

But  where  the  question  is  whether  the  vendor  has  fraudulently  withheld 
from  the  purchaser  knowledge  of  the  existence  of  an  ineumbrance  on  the 
premises,  and  whether  the  purchaser  had  waived  the  right  to  rewind  by  per- 
forming the  contract  with  notice  of  the  ineumbrance,  a  different  rule  from 
that  stated  in  the  text  has  been  applied  in  Pennsylvania.  In  such  a  case, 
Stephens'  Appeal,  87  Pa.  St.  202,  it  was  held  that  the  record  of  the  im  um- 


DETENTION   OR   RESTITUTION    OF    THE   PURCHASE   MONEY.       727 

If  the  purchaser  has  taken  covenants  with  knowledge  of  the 
existence  of  a  defect  or  incumbrance,  his  right  to  recover  on  the 
covenants  will  not  be  affected  thereby,  for  it  will  be  presumed  that 
he  took  the  covenants  expressly  for  his  protection.51  But  if  he  took 
no  covenants,  then  it  becomes  important  to  inquire  whether  he 
intended  to  risk  the  title,  and  upon  this  question  his  knowledge  of 
the  existence  of  the  defect  or  incumbrance  is  of  the  utmost 
importance.52 

(4)  The  fact  that  the  purchaser,  with  knowledge  of  the  de- 
fective title,  accepts  a  deed  without  covenants  against  the  defect, 
raises  a  presumption  that  he  assumed  the  risk'  of  the  title,63  and 
was  compensated  for  the  risk  in  the  collateral  advantages  of  the 
bargain ;  °4  but  such  presumption  is  not  conclusive,  and  may  be 
rebutted  by  the  purchaser  in  an  action  against  him  for  the  pur- 

brance  "  was  constructive  notice  to  the  purchaser  equally  as  effective  as 
actual  notice,"  citing  Evans  v.  Jones,  1  Yeates  (Pa.),  172;  Kuhn's  Appeal,  2 
Barr  (Pa.),  264.  Both  of  these,  however,  were  cases  arising  between  the 
purchaser  and  a  prior  purchaser  or  creditor,  and  not  between  purchaser  and 
vendor  upon  the  question  of  notice  as  affecting  the  right  to  rescind.  In 
Peck  v.  Jones,  70  Pa.  St.  84,  where  the  record  disclosed  the  defect  and  there 
was  nothing  to  show  that  the  vendor  had  actual  knowledge  thereof,  the  court 
said  that  the  purchaser  was  as  much  chargeable  with  notice  of  the  defect 
from  the  record  as  the  vendor. 

Xor  is  the  rule  that  constructive  notice  of  defects  from  their  appearance 
of  record  will  not  affect  the  purchaser's  rights  against  the  vendor  held  to 
apply  in  Pennsylvania,  where  the  purchaser  seeks  to  rescind  an  executoiy 
contract  and  recover  back  payments  made  in  ignorance  of  the  existence  of  an 
incumbrance  on  the  property.  In  such  a  case  it  is  said  that  the  constructive 
notice  which  the  record  of  a  judgment  lien,  standing  in  the  line  of  the 
vendor's  title,  gives  to  the  vendee,  is  as  effectual  as  actual  notice.  Boyd  v. 
McCullough,  137  Pa.  St.  7,  20  Atl.  Rep.  630. 

"Thomas  v.  Harris,  43  Pa.  St.  241. 

52  Cases  cited  supra,  n.  41,  p.  724. 

"•Ludwick  v.  Huntzinger,  5  W.  &  S.  (Pa.)  58;  Lighty  v.  Shorb,  3  Pa.  447, 
23  Am.  Dec.  334;  Smith  v.  Sillyman,  3  Whart.  (Pa.)  589;  Hart  v.  Porter,  5 
S.  &  R.  (Pa.)  201;  Fuhrman  v.  Loudon,  13  S.  &  R.  (Pa.)  386,  15  Am.  Dec. 
60S;  Beidelman  v.  Foulk,  5  Watts  (Pa.),  308;  Ross'  Appeal,  9  Pa.  St.  491. 
He  is  chargeable  with  constructive  notice  of  the  incumbrance  if  the  fact  of 
its  existence  could  have  been  discovered  by  inquiry  of  a  party  in  possession 
of  the  property.  Lazarus  v.  Coal  Co.,  246  Pa.  178,  92  Atl.  121. 

54  Lighty  v.  Shorb,  3>  Pa.  St.  452,  34  Am.  Dec.  334;  Youngman  v.  Linn, 
52  Pa.  St.  413;  Lazarus  v.  Coal  Co.,  246  Pa.  178,  92  Atl.  121. 


728  MARKETABLE    TITLE    TO    REAL    ESTATE. 

chase  money. "  This  rule  is  materially  moditied  by  that  which 
follows  next. 

(."))  The  acceptance  of  a  deed  without  covenants,  when  the  pur- 
chaser has  notice  of  a  pecuniary  incumbrance  on  the  property, 
which  can  be  discharged  out  of  the  purchase  money,  does  not  raise 
a  presumption  that  the  purchaser  assumed  the  risk  of  the  title; 
that  is,  the  payment  of  the  incumbrance  in  addition  to  the  purchase 
money.6'  On  the  contrary,  the  presumption  is  that  the  purchaser 
intended  to  apply  the  purchase  money  to  the  satisfaction  of  the 
incumbrance.  It  has  been  held,  however,  that  this  rule  does  not 
apply  where  the  purchaser  secures  the  purchase  money  by  the 
execution  of  a  written  obligation  to  pay  the  same  after  he  receives 
notice  of  the  incumbrance.07  The  exception  would  seem  prac- 
tically to  destroy  the  rule,  for  it  is  but  seldom  that  the  vendor 
delivers  a  conveyance  of  the  property  until  he  has  received  a  writ- 
ten obligation  of  some  kind  to  pay  the  purchase  money. 

If  the  purchaser  has  notice  of  an  incumbrance  or  defect,  and 
takes  a  deed  with  a  covenant  which  embraces  it,  the  presumption 

"Rawle  Covts.  §  344.  Thomas  v.  Harris,  43  Pa.  St.  231;  Drinker  v.  Byara, 
2  Pa.  St.  528.  The  rule  stated  in  the  text  is  the  inevitable  conclusion  from 
the  decision  rendered  upon  the  facts  in  this  case,  though  it  is  not  therein 
announced  in  so  many  words.  Doubts  having  arise  n  about  the  title,  the  pur- 
chaser took  from  the  vendor  an  agreement  to  save  him  harmless  in  case  any 
adverse  title  should  be  successfully  maintained,  and  then  accepted  a  deed 
without  covenants  against  the  anticipated  claims.  The  purchaser  lost  a  part 
of  the  property  by  the  successful  assertion  of  these  claims,  and  he  was  allowed 
to  set  up  that  fact  as  a  defense  to  an  action  on  the  purchase-money  mort- 
gage. "  Such  a  decision,"  Mr.  Rawle  observes,  "  could  not  have  been  mnde  if 
the  purchaser's  notice  and  the  absence  of  a  covenant  were  deemed  conclusive 
evidence  that  he  was  to  run  the  risk  of  the  title,"  and  Mr.  Rawle 's  observa- 
tion is  fully  sustained  by  the  case  of  Smith  v.  Chancy,  4  Md.  Ch.  24(5,  where, 
under  precisely  similar  circumstances,  the  purchaser  was  denied  relief,  the 
court  saying  that  the  agreement  for  indemnity  was  merged  in  the  conveyance 
without  covenant*. 

*Wol1»ert  v.  Lucas,  10  Pa.  St.  73,  49  Am.  Dec.  578. 

"  Lukens  v.  Jones,  4  Phila.  (Pa.)  18,  distinguishing  Wolbert  v.  Lucas,  10 
Pa.  St.  73,  49  Am.  Dec.  578.  This  was  not  a  decision  of  a  court  of  last 
resort,  and  possibly  may  not  be  recognized  in  Pennsylvania  as  of  binding 
authority.  The  report  does  not  show  whether  there  was  a  conveyance  to  the 
purchaser  or  not.  Presumably  there  was,  for  otherwise  the  case  would  have 
been  more  clearly  distinguishable  from  Wolbrrt  v.  Lucas,  supra,  where  there 
was  »  conveyance  without  a  covenant  embracing  the  incumbrance. 


DETENTION    OR    RESTITUTION    OF    THE   PURCHASE    MONEY.       729 

is  that  the  covenant  was  taken  by  the  purchaser  for  his  protection, 
and  he  cannot  detain  the  purchase  money  unless  the  covenant  has 
been  broken.68 

5SLighty  v.  Shorb,  3  Pa.  St.  447,  34  Am.  Dec.  334;  Fuhrman  v.  Lundon,  13 
S.  &  R.  (Pa.)  386,  15  Am.  Dec.  608;  Horbach  v.  Gray,  8  Watts  (Pa.), 
497;  Ives  v.  Niles,  5  Watts  (Pa.),  323;  Smith  v.  Sillyman,  3  Whart.  (Pa.) 
539;  Bradford  v.  Potts,  9  Pa.  St.  37;  Juvenal  v.  Jackson,  14  Pa.  St.  410; 
Kerr  v.  Kitchen,  17  Pa.  St.  433;  Murphy  v.  Richardson,  27  Pa.  St.  293; 
Wilson  v.  Cochran,  46  Pa.  St.  230,  86  Am.  Dec.  574;  Youngman  v.  Linn,  52 
Pa.  St.  413;  Wilson's  Appeal,  109  Pa.  St.  106.  In  the  case  of  Eby  v.  Elder, 
122  Pa.  St.  342,  15  Atl.  Rep.  423,  the  purchaser,  under  a  conveyance  with  a 
covenant  against  incumbrances,  resisted  the  payment  of  the  purchase  money 
on  the  ground  that  the  premises  were  traversed  by  a  private  right  of  way 
which  impaired  their  value.  The  court  charged  the  juxy  that  if  they  found 
from  the  evidence  that  at  the  time  of  the  purchase  the  land  was  openly  and 
plainly  subjected  to  the  easement;  that  the  physical  condition  of  the  ground 
was  openly  and  plainly  affected  thereby,  then,  since  there  was  no  express 
agreement  or  covenant  relating  thereto,  the  continuance  of  the  easement 
would  not  be  a  breach  of  the  covenant  against  incumbrances,  and  the 
plaintiff  would  be  entitled  to  recover  the  purchase  money.  This  decision  was 
affirmed  on  appeal.  The  same  decision  had  been  previously  made  in  the  case 
of  Wilson  v.  Cochran,  48  Pa.  St.  108,  816  Am.  Dec.  574.  The  ground  of  these 
decisions  was  that  the  purchaser  could  not  detain  the  purchase  money  unless 
there  had  been  an  eviction,  and  that  there  could  be  no  eviction  where  he 
purchased  with  actual  notice  of  the  incumbrance.  Mr.  Rawle  comments  upon 
the  latter  case  as  follows :  "  While  the  court  say  expressly  that  the  existence 
and  user  of  a  paramount  right  of  way  was  a  breach  of  the  covenant  of  war- 
ranty, when  the  purchaser  had  notice  of  it,  yet,  that,  nevertheless,  this  would 
not  constitute  an  eviction  when  the  purchaser  had  such  notice;  but  this  is 
hardly  the  correct  manner  of  stating  the  proposition,  for  in  both  cases  he  is 
equally  evicted,  and  none  the  less  so  by  reason  of  his  knowledge;  but  in  the 
latter  instance  he  is  not  allowed  to  detain  the  purchase  money  for  the  reason 
that  the  possible  assertion  of  the  paramount  right  constituted  one  of  the 
elements  of  the  contract,  and  was  within  the  intention  of  both  parties  when 
the  deed  was  made."  The  result  of  this  reasoning  is  that  in  some  cases  the 
purchaser  cannot  detain  the  purchase  money  even  though  there  has  been  an 
eviction.  It  is  to  be  observed  that  both  of  the  foregoing  cases  were  those 
in  which  relief  was  claimed  on  account  of  a  physical  incumbrance.  There 
would  seem  to  be  no  doubt  as  to  the  right  of  the  purchaser  to  protect  himself 
against  a  known  pecuniary  incumbrance,  and  to  detain  the  purchase  money  in 
case  of  an  eviction.  Rawle  Covts.  §  347,  et  seq. 

A  purchaser  with  general  warranty  is  chargeable  with  notice  of  an  incum- 
brance caused  by  a  public  highway  through  the  purchased  premises,  and  it 
will  be  conclusively  presumed  that  he  estimated  the  disadvantages  to  the 
premises  thence  ensuing  in  adjusting  the  purchase  price.  But  if  the  incum- 
brance consist  of  a  private  right  of  way  the  rule  is  different,  and  he  will  be 
92 


730  MARKETABLE    TITLE    TO    REAL    ESTATE. 

In  respect  to  the  right  to  recover  back  the  purchase  money  the 
rule  in  Pennsylvania  is  the  same  as  that  which  generally  exists 
elsewhere,  namely,  that  if  the  purchaser  has  failed  to  protect  him- 
self by  taking  covenants  for  title  embracing  the  defect  of  which  he 
complains  he  cannot  recover  back  the  purchase  money  by  way  of 
damages  for  breach  of  the  contract.59  If  he  has  taken  such  cove- 
nants and  they  have  been  broken,  he  cannot  recover  back  the  pur- 
entitled  to  detain  the  pun-base  money  to  the  extent  of  the  damages  caused 
him  by  the  road,  if  he  purchased  without  actual  knowledge  of  the  easement. 
Wilson  v.  Cochran,  48  Pa.  St.  107,  89  Am.  Dec.  574;  Eby  v.  Elder,  122  Pa. 
St.  342.  15  Atl.  Rep.  423.  The  same  rule  has  been  observed  elsewhere.  Butt 
v.  RifTe,  7&  Ky.  352.  The  grounds  upon  which  these  decisions  rest,  so  far  as 
they  apply  to  the  public  highway,  is  the  open,  notorious  and  visible  char- 
acter of  the  incumhrance.  It  is  not  easy  to  perceive  why  the  same  reasoning 
would  not  apply  in  the  case  of  a  private  right  of  way  sufficiently  marked  by 
travel  to  attract  the  attention  of  a  purchaser. 

"Moss  v.  Hanson,  17  Pa,  St.  379:  Dorsey  v.  Jackman,  1  S.  &  R,  (Pa.) 
42.  7  Am.  Dec.  (HI;  Light y  v.  Shorb,  3  Pa.  447,  34  Am.  Dec.  334;  Kerr  v. 
Kitchen.  7  Pa.  St.  486.  In  Steinhauer  v.  Witman,  1  S.  &  R.  (Pa.)  4.38, 
Judge  YEATES  admitted  that  money  paid,  where  there  was  a  conveyance  but 
no  covenant,  could  not  be  recovered  back,  and  observed  that  it  was  a  hardship 
but  that  such  was  the  law.  "  To  adopt  a  cant  expression,  '  the  funeral  has 
pa^ed  by,  the  dead  cannot  be  resuscitated.'  Hut  in  my  sense  of  the  Penn- 
sylvania system  of  law,  there  is  a  locus  pirnitentiir  until  the  money  is  paid. 
Something  remains  in  fieri,  and  the  plain  dictates  of  common  sense  and 
common  honesty  point  out  the  correct  path  to  l>e  pursued."  It  was  prohablv 
thi-  vigorous  language  that  led  to  the  distinction  of  Judge  VKATKS  as  the 
early  champion  and  advocate  of  what  is  known  as  "  the  Pennsylvania 
equitable  doctrine  "  as  to  detention  of  the  purchase  money. 

In  a  note  to  the  case  of  Goettel  v.  Sage,  27  Am.  Law  Reg.  (N.  S.)  250, 
1888,  S.  C.,  117  Pa.  St.  208,  10  Atl.  Rep.  8S9,  it  is  said  that  the  distinction 
between  detention  and  recovery  back  of  the  purchase  money  seems  to  have 
disappeared.  The  writer  cites  no  authority  for  this  proposition,  unless  the 
cases  Johnson's  Appeal,  114  Pa.  St.  132,  6  Atl.  Rep.  500;  Wilson's  Appeal, 
10U  Pa.  St.  000,  and  Babcock  v.  Day,  104  Pa.  St.  4,  referred  to  in  a  general 
way  by  him,  are  intended  a.s  such.  In  each  of  these  the  contract  was  re- 
scinded on  the  ground  of  mutual  mistake  of  the  parties  respecting  the  title, 
a  form  of  relief  to  the  purchaser  referable  to  entirely  different  principle* 
from  those  upon  which  he  is  permitted  to  detain  the  purchase  money  in 
Pennsylvania.  See  Rawle's  Covts.  (5th  ed..  1887),  88  335,  351,  where  the 
right  of  the  purchaser  in  that  State  to  recover  back  the  purchane  money  (aa 
damages  where  he  has  failed  to  take  covenants,  i-  denied.  Also,  Farmers' 
Bank  v.  Galbraith,  1<>  I'a.  St.  490;  Phillip*  v.  Scott,  2  Watts  (Pa.),  318; 
Croninter  v.  Cr  on  inter,  I  W.  &.  S.  (Pa.)  442;  Frederick  v.  Campbell,  13  S.  & 
R.  (Pa.)  130;  Boar  v.  McCormick,  1  S.  &  R.  (Pa.)  106. 


DETENTION    OE    RESTITUTION    OF    THE   PURCHASE    MONEY.       731 

chase  money  eo  nomine,  by  action  of  assumpsit,  but  must  resort  to 
his  covenants.60  If  the  purchase  money  remains  unpaid  and  the 
covenants  have  been  actually  broken  and  a  present  right  to  recover 
damages  has  accrued  to  the  purchaser,  he  may,  to  prevent  a  circuity 
of  action,  detain  the  purchase  money  to  the  extent  of  such  dam- 
ages.61 It  has  been  held,  however,  in  Pennsylvania,  that  a  stipula- 
tion by  the  vendor,  verbal  or  written,  to  refund  the  purchase  money 
and  reimburse  the  purchaser  for  expenses  incurred  in  case  the  title 
should  fail,  will  not  be  merged  in  a  deed  subsequently  accepted  by 
the  vendee  which  Contains  only  a  covenant  of  special  warranty.62 
The  Pennsylvania  equitable  doctrine  will  not  justify  the  purchaser 
in  detaining  the  purchase  money  where  he  is  disturbed  in  the  pos- 
session by  a  mere  wrongdoer.63  Xor  does  it  apply  in  a  case  in 

Tia/wle  Covts.  (5th  eel.)  pp.  554,  576,  n. 

"Christy  v.  Reynolds,  16  S.  &  R.  (Pa.)  258;  Ives  v.  N'les,  5  Watts  (Pa.), 
323;  Poyntell  v.  Spencer,  6  Pa.  St.  257;  Wilson's  Appeal,  109  Pa.  St.  606. 

02  Close  v.  Zell,  141  Pa.  St.  390,  21  Atl.  Rep.  770,  citing  Drinker  v.  Byers, 
2  Pen.  &  W.  (Pa.)  528;  Richardson  v.  Gosser,  26  Pa.  St.  335;  Cox  v.  Henry, 
32  Pa.  St.  18.  The  purchaser  having  been  induced  to  accept  the  conveyance 
in  consideration  of  such  agreement,  the  rule  against  the  admission  of  parol 
evidence  to  alter  a  written  contract  does  not  apply  in  such  case.  Walker  v. 
France,  112  Pa.  St.  203,  5  Atl.  Rep.  208. 

63  Spear  v.  Allison,  20  Pa.  St.  200. 

MFox  v.  Mensch,  3  AVatts  (Pa.),  493;  King  v.  Gunnison,  4  Pa.  St.  171. 
The  purchaser  may,  it  seems,  object  to  the  title  before  confirmation  of  the 
sule.  Kennedy's  Appeal,  4  Pa.  St.  149.  This  is  unimportant,  however,  as 
rospects  the  practical  application  of  the  rule  stated  in  the  text,  since  there 
can  be  no  valid  conveyance  until  the  sale  has  been  confirmed.  Bashore  v. 
Whisler,  3  Watts  (Pa.),  493,  where  it  was  said:  "It  cannot  now  be  ques- 
tioned that  a  defendant  may  allege  defect  of  title  in  the  whole  or  in  part,  as 
a  defense  in  a  suit  brought  by  a  vendor  against  a  vendee  to  recover  unpaid 
purchase  money.  This  principle,  which  was  first  ruled  in  Steinhauer  v. 
Witman,  1  S.  &  R.  (Pa.)  438,  has  been  since  affirmed  in  Hart  v.  Porter,  5 
S.  &  R.  (Pa.)  200,  and  in  other  cases  to  which  it  is  unnecessary  particularly 
to  refer.  Although  this  principle  as  applied  to  private  contracts  is  un- 
doubted, yet  it  has  never  been  understood,  either  by  the  profession  or  the 
public,  to  be  applicable  to  judicial  sales.  In  Friedly  v.  Scheetz,  9  S.  &  R. 
(Pa.)  156,  11  Am.  Dec.  691,  it  was  ruled  that  a  sheriff's  sale  cannot  be 
objected  to  by  the  purchaser,  merely  on  the  ground  of  defect  of  title,  but  that 
in  all  such  cases  it  is  binding  except  where  there  be  fraud  or  misdescription 
of  the  property  in  some  material  respect.  It  was  also  ruled  in  the  same 
case,  that  a  purchaser  cannot  object  to  a  sheriff's  sale  because  of  a  defect  of 
title  of  which  he  had  notice.  That,  therefore,  when  he  has  bought  after 


732  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

which  the  purchase  was  made  at  a  sale  under  a  decree  of  court," 
or  a  sale  by  a  sheriff  or  other  officer.65 

Rules  in  respect  to  the  detention  of  the  purchase  money,  in 
manv  respects  similar  to  those  which  prevail  in  the  State  of 
Pennsylvania,  exist  in  the  States  of  Texas  and  South  Carolina, 

being  publicly  notified  at  the  sale  of  such  defect,  he  cannot  give  evidence  of 
want  of  title  in  a  suit  brought  against  him  for  the  purchase  money.  The 
doctrine  of  Steinhauer  v.  Witman  does  not  extend  to  judicial  sales,  nor  has 
it  been  contended  by  any  one  that  the  usage  asserted  and  maintained  by 
Justice  YEATES  extended  to  them.  At  a  judicial  Rale  the  interest  of  the 
debtor  and  no  more  is  sold.  The  purchaser  acquires  the  title  puch  as  he  held 
it.  There  is  no  warranty  of  title;  and  if  the  vendee  of  the  sheriff  purchases 
without  a  sufficient  examination  it  is  his  fault,  and  is  a  matter  with  which 
the  debtor  has1  no  concern.  He  agrees  to  run  the  risk  of  the  title.  The  rule 
is  careat  emptor." 

«Friedly  v.  Scheetz,  9  S.  &  R.  (Pa.)  181;  11  Am.  Dec.  691;  Weidler  v. 
Bank,  11  S.  &  R.  (Pa.)  134.  The  Pennsylvania  equitable  doctrine  has 
resulted  in  several  peculiarities,  if  not  incongruities.  For  example:  (1) 
t'nder  some  circumstances  the  purchaser  has  greater  rights-  as-  a  plaintiff 
than  as  a  defendant;  thus,  the  fact  that  he  was  aware  of  the  defect  of  title 
at  the  time  he  took  a  conveyance  with  covenants  embracing  the  defect  will 
not  affect  his  right  to  recover  on  the  covenant.  This  is  the  rule  everywhere. 
But  if  with  knowledge  of  the  defect  he  took  no  covenant  he  cannot,  as  a 
general  rule,  detain  the  purchase  money.  (2)  Under  other  circumstances  he 
has  greater  rights  as  a  defendant  than  as  plaintiff;  thus,  as  we  have  here- 
tofore seen,  if  he  takes  a  deed  without  covenants  he  may,  as  defendant,  detain 
the  purchase  money  if  he  was  ignorant  of  the  defect  of  title  when  the  deed 
was  made,  while  under  the  same  circumstances  he  could  have  no  relief  what- 
ever as  plaintiff.  And  again,  he  may  in  such  case  exercise  his  right  to  detain 
the  purchase  money  though  he  has  never  been  evicted,  while  if  he  had  taken 
a  conveyance  with  covenants  of  warranty  he  could  neither  detain  the  pur- 
chase money,  nor  recover  it  back  as  damages,  unless  he  had  been  actually  or 
constructively  evicted.  (3)  In  Wilson  v.  Cochran,  46  Pa.  St.  230,  it  is  said 
that  the  vendee  may  detain  the  purchase  money  to  the  extent  which  he  would 
be  entitled  to  recover  damages  upon  his  covenants,  and  that  he  is  not  obliged 
to  restore  possession  to  his  vendor  before  or  at  the  time  of  availing  himself 
of  such  defense,  from  which  it  is  to  -be  inferred  that  he  may  make  such 
defense  thouph  he  has  not  been  evicted ;  and  yet  in  the  same  opinion  it  is 
Baid  that  the  right  to  detain  the  purchase  money  is  in  the  nature  of  an  action 
on  the  covenant,  and  that  the  vendee  who  seeks  to  detain  by  virtue  of  a 
covenant  of  warranty  is  as  much  bound1  to  prove  an  eviction  as  if  he  were 
plaintiff  in  an  action  of  covenant.  It  will  be  remembered  that  there  are 
several  derisions  supporting  both  of  these  propositions.  It  is  difficult  to  per- 
ceive  of  what  benefit  to  the  purchaser  in  the  permission  to  make  a  certain 
•  defense  without  restoring  the-  possession,  when  his  right  to  make  such  a 
defense  is  altogether  predicated  upon  the  fact  that  he  has  been  turned-  out  of 


DETENTION    OR   RESTITUTION    OF    THE   PURCHASE    MONEY.       733 

and  may  be  seen  in  a  foregoing  part  of  this  work.66  Some  apology 
is  due  the  student  for  considering  at  such  length  rules  relating  to 
the  detention  of  the  purchase  money  applicable  only  in  particular 
localities.  The  rules  in  question  mark  the  greatest  innovations 
and  inroads  upon  the  doctrines  of  the  common  law  in  that  regard 
that  have  been  made  in  America,  and  it  has  been  deemed  expedient 
to  set  them  forth  with  considerable  particularity. 

the  possession,  or  has  never  been  able  to  get  possession.  But  these  incon- 
sistencies or  incongruities  are  perhaps  no  more  illogical  than  the  universal 
rule  which  permits  the  purchaser  to  detain  the  purchase  money  where  he  is 
entitled  to  recover  damages  for  breach  of  a  covenant,  and  denies  him  the 
right  to  recover  back  that  which  has  been  already  paid.  The  foregoing 
observations  have  been  made  merely  to  illustrate  the  difficulties  and  per- 
plexities into  which  a  partial  departure  from  the  rules  of  the  common  law 
controlling  the  rights  of  the  grantee  has  led.  The  remedy  would  seem  to 
be  either  to  maintain  a  strict  adherence  to  those  rules,  or  to  cut  them  up 
root  and  branch  and  supply  their  place  with  others  framed  in  the  spirit  of 
the  civil  law  which  rejects  the  maxim  caveat  emptor,  and  decrees  the  reim- 
bursement of  the  purchaser  wherever  he  loses  the  estate  through  defective 
title,  the  risks  of  which  he  did  not  accept,  without  regard  to  the  existence 
or  non-existence  of  covenants  for  title  on  the  part  of  the  vendor. 

'"Ante,  §§  18&,  190.  In  Louisiana  it  is  provided  by  statute  that  the 
grantee,  if  evicted  under  a  superior  title,  is  entitled  to  a  return  of  the  pur- 
chase money,  though  there  was  no  warranty  of  the  title,  unless  he  knew  of 
the  defects  in  his  grantor's  title,  and  purchased  at  his  peril.  Ellis  v.  Cross- 
ley,  119  Fed.  Rep,  779. 


CHAPTER  XXVIII. 

OF  RESTITUTION"  OF  THK   PURCHASE  MONEY  WHERE  THERE  ARE 
COVENANTS  FOR  TITLE. 

GENERAL  RULE.      §   272. 
EXCEPTIONS.      §   273. 

§  272.  GENERAL  RULE.  We  have  seen  that  after  a  contract 
for  the  sale  of  lands  has  been  executed  by  a  conveyance  to  the 
purchaser,  he  may,  for  the  avoidance  of  circuity  of  action,  detain 
the  purchase  money  in  all  cases  where  there  has  been  such  a  breach 
of  the  covenants  for  title,  as  would  entitle  him  to  recover  sub- 
stantial damages  against  the  grantor.  This,  however,  is  solely  for 
the  avoidance  of  circuity  of  action,  and  he  can  in  no  case,  after 
the  contract  has  been  executed,  recover  back  the  purchase  money 
as  such.  We.  therefore,  state  the  following  proposition: 

PROPOSITION  VI.  After  a  contract  for  the  sale  of  lands  has  been 
executed  by  a  conveyance,  ivith  covenants  for  title,  the  purchaser 
cannot;  though  he  has  been  evicted  by  one  claiming  under  a  para- 
mount title,  or  has  discharged  an  incumbrance  on  the  estate,  recover 
ba-ck  the  purchase  money  eo  nomine,  either  by  suit  in  equity,  or  by 
action  against  the  vendor  for  money  had  and  received  to  the  plain- 
tiff's use.  His  remedy  is  upon  the  covenants  for  title.1 

'1  Supl.  Vend.  (8th  Am.  ed.  i  ;  Rawle  Covt.  (5th  ed.)  §  320.  Tillotson  v. 
Grapes,  4  N.  H.  448;  Banks  v.  Walker,  2  Sandf.  Ch.  (N.  Y.)  348;  Hunt  v. 
Arindon,  4  Hill  (N'.  Y.),  345;  40  Am.  Dec.  283;  Miller  v.  Watson,  5  Cow. 
(N.  Y.)  105;  4  Wend.  (X.  Y.)  267;  Meyer  v.  Shoemaker,  5  Barb.  (N.  Y.  S. 
C.)  319;  Willy  v.  Hiphtmver.  0  Sm.  &  M.  (Mi*s.)  345;  Maner  v.  Washing- 
ton, 3  Strobh.  Eq.  (S.  C.)  171;  Major  v.  Brunh,  7  Ind.  232;  Davenport  v. 
WhMer.  46  Iowa,  2*7;  Wilson  v.  Irish,  62  Iowa.  260;  17  N.  W.  Rep.  511: 
TempMon  v.  JackKon,  13  Mo.  7ft;  Smyth  v.  Boron",  156  Mo.  App.  18;  135 
S.  W  D73;  Renter  v.  La  we,  86  Wi«.  106;  Earlc  v.  De  Witt,  6  Allen  (Mans.). 
526;  Joyce  v.  Ryan.  4  C.reenl.  (Me.)  101;  Van  Riswick  v.  Wallarh,  3 
McArth.  (I).  C.)  3SH.  In  Bradley  v.  Dibrell.  3  Heink.  (Tenn.)  522,  where  the 
covenantor  included  in  bin  conveyance  about  twenty  acres  to  which  he  had 
no  title  and  poMsetwion  of  which  was  not  delivered  to  the  covenantee,  com- 
pensation for  the  deficiency  wan  decreed  to  the  covenantee.  There  wan  a 
constructive  eviction  here  and  the  plaintiff  might  have  recovered  at  law  on 

1734  J 


RESTITUTION   OF  PURCHASE-MONEY.  735 

This  rule  is  comparatively  of  little  importance  to  the  purchaser 
where  an  actual  breach  of  the  covenants  has  occurred,  for,  in  an 
action  on  the  covenant,  the  damages  are  measured  by  the  purchase 
money,  so  that,  practically,  the  purchase  money  is  recovered  back 
in  this  form.2 

If  the  purchaser  cannot  recover  back  the  purchase  money,  eo 
nomine,  after  a  breach  of  the  covenant  has  occurred,  a,  fortiori  he 
cannot  recover  it  back  before  the  happening  of  the  breach.  As 
respects  the  covenants  of  seisin,  which  is  broken  as  soon  as  made  if 
the  covenantor  have  no  title,  we  have  seen  that  a  purchaser  will, 
in  some  of  the  States,  be  allowed  to  detain  the  purchase  money, 
if  it  clearly  appears  that  the  title  is  worthless,  and  he  tenders  a 
reconveyance  to  the  grantor.3  But  there  seems  to  be  no  case  in 
which  the  covenantee  has  been  suffered  to  recover  back  the  purchase 

his  covenants,  but  relief  in  equity  seems  to  have  been  granted  on  the  ground 
of  fraud  'by  the  vendor.  In  Fitzpatrick  v.  Hoffman,  (Mich.)  62  N.  W.  Rep. 
349,  it  was  held  that  a  grantee  with  warranty  who  had  been  compelled  to 
satisfy  to  an  adverse  claimant  the  value  of  timber  cut  from  the  warranted 
lands,  might  recover  the  amount  so  expended  in  assumpsit  against  the 
grantor.  In  the  case  of  Oliver  v.  Kneedler,  141  Iowa,  158;  119  N".  W.  525, 
a  grantee  of  vacant  lots  with  warranty  was  permitted  to  recover  the  con- 
sideration money  on  failure  of  the  title,  though  there  had  been  no  breach 
of  the  warranty.  The  court  said  that  the  action  was  for  recovery  of  the 
consideration,  and  not  for  damages  for  breach  of  warranty.  In  Mengel  Box 
Co.  v.  Ferguson,  124  Tenn.  433;  137  S.  W.  101,  it  was  held  that  a  suit  in 
equity  might  be  maintained  to  recover  damages  for  breach  of  covenants  of 
seisin  and  of  warranty.  In  Mississippi,  it  is  held  that  the  covenantee  may 
sue  either  in  equity  or  in  assumpsit  to  recover  the  purchase  money,  even 
though  he  has  not  been  actually  or  constructively  evicted  from,  the  premises. 
Copwood  v.  McCandless,  99  Miss.  364;  54  So.  1007.  In  Oklahoma,  the  cove- 
nantee, when  sued  for  the  balance  of  the  purchase  money,  may  by  way  of 
counterclaim,  recover  such  of  the  purchase  money  as  he  has  already  paid. 
Joiner  v.  Trust  Co.,  33  Okl.  266;  124  Pac.  1073. 

*It  is  frequently  said,  as  in  Kerr  v.  Kitchen,  7  Pa.  St.  486,  that  a  pur- 
chaser cannot  recover  back  the  consideration  money  after  acceptance  of  a 
conveyance,  unless  there  be  fraud  or  warranty.  This  is  an  expression  likely 
to  mislead  unless  it  is  borne  in  mind  that  the  damages  for  a  breach  of  war- 
ranty are  measured  by  the  consideration  money.  Strictly  speaking  he  re- 
covers damages  for  the  fraud  or  breach  of  warranty  and  not  the  consideration 
money  eo  nomine. 

3  Ante,  Ch.  26. 


736  MAKKETABLE    TITLL.    TO    BEAL.    ESTATE. 

money,  in  an  action  at  law,4  upon  like  conditions.*  A  different 
rule  prevails  at  the  civil  law.  If  the  purchaser  does  not  get  such 
a  title  as  his  contract  requires,  he  can,  irrespective  of  the  existence 
of  covenants  for  title,  recover  back  the  purchase  money,6  upon  coii- 

4  In  Elliott  v.  Garvin,  166  Fed.  278;  92  C.  C.  A.  190,  a  claim  against  the 
estate  of  a  deceased  covenantor  for  the  amount  of  the  purchase,  the  title 
having  failed,  was  allowed. 

*Mr.  Fawlc  says  in  this  connection:  "It  would  at  first  sight  seem  imma- 
terial whether  the  position,  of  the  purchaser  were  that  of  a  defendant  resist- 
ing payment  of  the  purchase  money,  or  that  of  a  plaint  ill  seeking  to  recover 
it  bac-k  in  an  action  for  money  had  and  received,  as  there  would  seem  to  be 
no  reason  on  principle  why,  if  the  purchaser  have  a  right  permanently  to 
detain  unpaid  purchase  money  on  the  ground  of  a  defect  of  title,  he  should 
be  prevented  from,  recovering  back  that  for  which  he  has  received  no  value. 
But  the  position  of  a  purchaser  of  real  estate  as  a  plaintiff,  must  at  law 
necessarily  be  confined  to  a  -suit  upon  the  covenants  in  his  deed,  which  suit 
(though  the  same  end  be  obtained  by  means  of  it)  depends  to  some  extent 
upon  different  principles  and  machinery  from  an  action  which  seeks  to  rescind 
the  contract  and  recover  back  its  consideration.  Hence,  it  may  be  safely  said 
that,  at  law,  a  purchaser  has  no  right,  after  the  execution  of  his  deed,  to 
recover  back  his  consideration  money  on  the  ground  of  a  defect  or  failure  of 
title.  His  remedy  in  such  case  is  by  an  action  of  covenant,  and  not  by  an 
action  of  assumpsit.  But  when  the  position  of  the  purchaser  is  tliat  of.  a 
defendant,  although  'the  technical  rule  remits  him  back  to  his  covenants  in 
his  deed,'  yet,  as  has  been  said,  it  is  now  considered  that  he  should  not  IHJ 
compelled  to  pay  over  purchase  money  which  he  might  the  next  day  recover 
in  the  shape  of  damngea  for  a  breach  of  hi-3  covenants,  and  hence,  to  prevent 
circuity  of  action,  the  defense  at  law  of  a  failure  of  title  lias  been  in  some 
cases  allowed." 

•Bates  v.  Delavan,  5  Paige  Ch.  (X.  Y.)  306,  where  it  waa  said  by  WAL- 
WOKTII,  Ch.:  "By  the  civil  law  an  action  of  redhibition,  to  rescind  a  sale 
and  to  compel  the  vendor  to  take  back  the  property  and  restore  the  purchase 
money,  could  be  brought  by  the  vendee,  wherever  there  wan  error  in  the 
essentials  of  the  agreement,  although  both  parties  were  ignorant  of  the 
defect  which  rendered  the  property  sold  unavailable  to  the  purchaser  for  the 
purposes  for  which  it  was  intended.  *  *  *  I  agree,  however,  with  the 
learned  commentator  on  American  Law  (2  Kent  Com.  [2d  ed.]  473),  that  the 
weight  of  authority  both  in  this  State  and  in  Kngland  is  against  this 
principle,  so  far  as  a  mere  failure  of  title  is  concerned,  and  that  the  vendee 
who  has  consummated  his  agreement  by  taking  a  conveyance  of  the  property, 
must  be  limited  to  the  rights  which  he  has  derived  under  the  covenants 
therein,  if  he  has  taken  the  precaution  to  secure  himself  by  covenants."  In 
Louisiana  where  legislation  is  cast  in  the  moulds  of  the  civil  law,  the  pur- 
chaser may  upon  a  complete  failure  of  the  title,  recover  back  the  purchase 
money  to  nomine,  though  he  has  taken  a  conveyance  with  warranty.  Boyer  v. 
Am«t,  41  Ka.  Ann.  725. 


RESTITUTION  OF  PURCHASE-MONEY.  737 

dition  only  that  he  restore  the  premises  to  the  vendor.7  Nor  in 
such  a  case  can  he  recover  upon  a  contemporaneous  agreement  by 
the  vendor  to  refund  the  purchase  money  if  the  title  should  fail. 
All  such  agreements  are  merged  in  the  conveyance,  and  the  pur- 
chaser must  seek  his  remedy  on  the  covenants  therein  contained, 
if  any.8  Neither  can  the  covenantee,  upon  breach  of  the  covenants 
for  title,  maintain  a  bill  in  equity  to  compel  the  vendor  to  restore 
the  purchase  money  paid.  His  remedy  at  law  upon  the  covenants 
is  complete.9 

If  the  purchaser  accept  a  conveyance  of  the  premises  from  a 
third  person  instead  of  the  seller,  and  is  afterwards  evicted  by  one 
holding  a  better  title,  he  is,  in  the  absence  of  fraud,  without  remedy 
against  the  seller.  His  remedy  is  upon  the  covenants  in  the  deed 
which  he  accepted.19 

§  273.  EXCEPTION'S.  The  rule  that  the  purchaser  cannot  re- 
cover back  the  purchase  money  after  the  contract  has  been  exe- 
cuted by  a  conveyance  with  covenants  for  title  does  not  apply 
where  by  mistake  there  is  no  such  land  as  the  deed  purports  to 
convey,11  nor  where  the  deed  is  so  defective  that  it  is  absolutely 
inoperative  as  a  conveyance.12 

In  one  of  the  States,  at  least,  and  possibly  in  others,  if, 
after  payment  of  the  purchase  money  and  delivery  of  a  deed,  it 
is  found  that  the  title  conveyed  is  worthless,  a  suit  in  equity  for 
rescission  of  the  contract  and  return  of  the  purchase  money  can 

7 Brown  v.  Reeves,  19  Mart.  (La.)  235.    2  Kent  Com.  (llth  ed.)  621  (472). 

8  Earle  v.  De  Witt,  6  Allen  ( M'ass. ) ,  533.  The  conveyance  in  this  case  con- 
tained no  covenant  embracing  the  defect  of  title  of  which  the  plaintiff  com- 
plained. The  decision  is,  therefore,  with  stronger  reason,  an  authority  for 
the  proposition  stated  above. 

"Ohling  v.  Luitjens,  32  111.  231;  Beebe  v.  Swartwout,  3  Gil.   (111.)    16&. 

10  Baker  v.  Savidge,  53  Neb.  146;  73  N.  W.  Rep.  543. 

"D'Utricht  v.  Melchor,  1  Dall.  (Pa.)  428.  In  this  case  it  was  objected 
that  the  covenantee's  remedy  was  <by  action  on  the  covenant,  or  by  action  of 
deceit,  and  that  judgment  against  the  defendant  in  the  action  brought  could 
not  be  pleaded  in  bar,  if  covenant  should1  afterwards  be  bronght.  But  the 
court  held  that  assumpsit  would  lie. 

"Tollensen  v.  Gunderson,  1  Wis.  104  (115).  There  was  no  lack  of  proper 
words  of  conveyance  in  the  deed  in  this  case;  the  trouble  lay  in  the  descrip- 
tion of  the  premises,  which  was  "  the  northeast  quarter  of  the  west  half,  con- 
taining twenty-acres,"  without  identifying  the  "  west  half." 

93 


738  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

be  maintained  by  the  grantee — this  iipon  the  ground  that  the 
courts  will  not  remit  the  grantee  to  an  action  on  the  covenants 
of  title  in  which  the  relief  would  be  the  same  as  in  equity,  that  is, 
return  of  the  purchase  money  paid  with  interest." 

"Weise  v.  Grove.  123  Iowa,  5S9;  90  X.  W.  250;  Smith  v.  Bricker,  86 
Iowa,  285;  53  X.  W.  250;  Clapp  v.  Greenlee,  100  Iowa,  595;  69  X.  W.  1049; 
Campbell  v.  Spears,  120  Iowa,  673;  94  X.  W.  1126;  Strother  v.  Leigh,  151 
Iowa,  214;  130  X.  W.  1019.  In  this  last  case  it  was  held  that  the  grants 
did  not  waive  her  right  to  rescind  by  bringing  a  suit  to  try  title  to  the  land. 


CHAPTER  XXIX. 

OP   DETENTION   OR  RESTITUTION   OF   THE    PURCHASE-MONEY    IN 
CASES  OF  FRAUD. 

GENERAL  RULE.     §   274. 
EXECUTED    CONTRACT.     §   275. 
WAIVER  OF  FRAUD.     §   276. 

§  274.  GENERAL  RULE.  Fraud  by  the  vendor  in  misrepresent- 
ing or  concealing  facts  material  to  the  validity  of  his  title,  sweeps 
away,  as  a  general  rule,  all  distinctions  between  executory  and 
executed  contracts,  with  respect  to  the  right  of  the  purchaser  to 
recover  back  or  detain  the  purchase  money  on  failure  of  the  title. 
What  acts  and  conduct  of  the  vendor  constitute  such  fraud  has 
already  been  considered.1 

PROPOSITION  VII.  //  the  vendor  fraudulently  induced  the  pur- 
chaser to  accept  a  bad  iHle,  the  latter  may,  at  law,  recover  back 
or  detain  the  purchase  money  as  damages,  whether  the  contract  is 
executory  or  has  been  executed;  and,  if  executed,  whether  the  con- 
veyance was  with  or  without  covenants  for  title;  and,  if  with  cove- 
nants for  title,  ivhether  those  covenants  have  or  have  not  been 
broken.2 

As  a  general  rule,  the  purchaser  cannot  maintain  an  action  to 
recover  back  the  purchase  money  on  the  ground  that  the  vendor  has 
been  guilty  of  fraud  in  respect  to  the  title,  unless  he  shows  that  he 
has  actually  rescinded  the  contract,  notified  the  vendor  of  his  in- 
tent to  rescind,  and  has  offered  to  restore  the  premises  to  the 
vendee.3  The  purchaser,  however,  is  not  bound  to  rescind  in  order 

1Ante,  ch.  11.     See,  also,  post,  ch.  34. 

2  2  Sugd.  Vend.  (8th  Am.  ed.)  chs.  13  and  15;  2  Warvelle  Vend.  917; 
Rawle  Covts.  (5th  ed.)  §§  167,  322.  Post,  ch.  35.  Ante,  ch.  11.  Edwards  v. 
McLeay,  Coop.  3*08;  Young  v.  Harris,  2  Ala.  Ill;  Diggs  v.  Kirby,  40  Ark. 
420;  Sorrells  v.  MteHenry,  38  Ark.  127;  Coffee  v.  Newsom,  2  Kelly  (Ga.), 
460;  Haight  v.  Hayt,  19  N.  Y.  474;  Van  Lew  v.  Parr,  2  Rich.  Eq.  (S.  C.) 
338;  Lamb  v.  Smith,  &  Rand.  (Va.)  552;  Fristoe  v.  Latham,  18  Ky.  Law 
R.  157;  36  S.  W.  Rep.  920;  Knight  v.  Schroader,  148  Ky.  610;  147  S.  W. 
37*8;  Brand  v.  Odom,  (Tex.  Civ.  App.)  156  S.  W.  547. 

"Pearsoll  v.  Chapin,  44  Pa.  St.  9;  Babcock  v.  Case,  61  Pa.  St.  427;  10  Am. 
Dec.  654;  Morrow  v.  Rees,  69  Pa.  St.  368. 

[739] 


740  MABKETABLE    TITLE    TO    REAL    ESTATE. 

to  obtain  relief  in  a  case  of  fraud.  lie  may  affirm  the  contract, 
keep  the  premises,  and  maintain  an  action  of  deceit  to  recover 
damages  from  the  vendor.4  In  most  cases,  this  is  the  better  course 
for  him  to  pursue,  where  the  purchase  money  has  been  fully  paid, 
because  in  such  an  action  his  recovery  is  not  limited  to  the  con- 
sideration money;  he  may  recover  damages  for  the  loss  of  his 
bargain,  though  they  be  greatly  in  excess  of  the  consideration 
money  and  interest,  while,  it  is  apprehended,  he  could  not  recover 
less  than  the  purchase  money  and  interest.  These  observations 
apply  as  well  where  the  contract  has  been  executed  by  a  conveyance 
with  covenants  for  title,  as  where  it  is  executory,5  for  the  measure 
of  damages  upon  a  substantial  breach  of  the  covenants  for  title  is 
the  purchase  money,  with  interest.  If  the  purchaser  seeks  relief 
in  equity,  he  can  have  a  return  of  his  purchase  money,  but  no  dam- 
ages, because  the  remedy  at  law  in  that  respect  is  complete.'  There 
can  be  no  question  of  the  right  of  the  purchaser  to  recover  back 7  or 

4 Ante,  §101.  Gwinther  v.  Gerding,  3  Head  (Term.),  198;  White  v.  Seaver, 
25  Barb.  (N.  Y.)  235,  where,  however,  the  purchaser  elected  to  rescind.  The 
converse  of  this  proposition  is  also  true.  The  purchaser  is  not  bound  to 
resort  to  his  remedy  at  law  for  damages,  but  may  proceed  in  equity  to 
rescind  the  contract.  Bodley  v.  Bosley,  1  Barb.  Ch.  (X.  Y.)  125.  "Courts  of 
equity  have  generally  concurrent  jurisdiction  with  common-law  courts  in 
those  cases  where  common-law  courts  have  jurisdiction  because  of  fraud ;  and 
though,  where  the  vendor  has  fraudulently  misrepresented  the  quantity  of 
land,  and  thus  induced  the  vendee  to  purchase,  a  common-law  suit  for  deceit 
would  lie,  yet  this  is  concurrent  with  the  right  of  the  vendee  to  stay  the 
collection  in  a  court  of  equity  till  abatement  has  been  made."  Kelly  v.  Riley, 
22  W.  Va.  250. 

•  Ante,  "  M«rger,"  ch.  27,  §  270. 

•2  Warvelle  Vend.  055.  Robertson  v.  Hogshead,  3  Leigh  (Va.),  723  (667). 
Bodley  v.  Bodley,  1  Sandf.  (N.  Y.)  125. 

'Rawle  Covte.  (5th  ed.)  ft*  319,  et  aeq.;  Dart's  V.  &  P.  612;  2  Warvelle 
Vend.  834,  851,  952;  Wade  v.  Thurman,  2  Bibb  (Ky.),  583,  citing  Co.  Litt. 
384a,  Butler's  note,  and  Com.  Dig.  236;  Lyon  v.  Anable,  4  Conn.  350;  Spoor 
v.  Til-mi.  97  Va.  279;  33  S.  E.  Rep.  609;  Norris  v.  Hay,  87  Pac.  380;  149 
Cal.  695;  Crane  v.  Development  Co.,  164  Cal.  676;  130  Pac.  429;  Soherhlingcr 
v.  Gault,  35  Okl.  416;  130  Pac.  305;  Martinez  v.  Coggin,  (Tex.  Civ.  App.) 
135  S.  W.  679;  Fountain  Val.  Co.  v.  Wagoner,  59  Colo.  56;  147  Pac.  333. 
In  such  cases  the  purchaser  is  entitled  to  recover  back  the  pun-haae  money  by 
unit  at  law  a»  well  as  in  equity.  O'Neal  v.  Miller,  9  Ga.  App.  180;  70  S.  E. 
971. 


DETENTION    OB    RESTITUTION    OF    PURCHASE-MONEY.          741 

to  detain 8  the  purchase  money  where  the  contract  is  executory  and 
the  vendor  has  been  guilty  of  fraud  respecting  the  title,  for  he  has 
that  privilege,  though  there  has  been  no  fraud  and  the  title  has 
merely  failed,  except,  of  course,  in  cases  where  he  has  waived  his 
objections  to  the  title,  or  where  the  vendor  has  the  right  to  remove 
them.9  He  waives  his  right  to  rescind  on  the  ground  of  fraudulent 
representations  as  -to  the  title,  by  failing  to  promptly  exercise  that 
right.10 

If  he  gives  notice  of  rescission  based  solely  on  the  failure  of  the 
abstract  to  show  a  good  title,  he  cannot  afterwards  claim  a  right  to 
rescind  on  the  ground  of  false  representations  as  to  the  title.11 

The  remedy  by  action  to  recover  back  the  purchase  money  due 
upon  an  executory  contract  for  the  sale  of  lands  where  the  vendor 
was  guilty  of  fraud  respecting  the  title,  is  concurrent  with  his 
remedy  at  law  for  damages  in  an  action  of  deceit,12  and  in  equity, 
for  a  rescission  of  the  contract  and  return  of  the  purchase  money.13 

8  Authorities  cited,  supra.  Kerr  on  Fraud  (Am.  ed. ),  330.  Green  v. 
Chandler,  25  Tex.  148;  Settle  v.  Stephens,  18  Tex.  Civ.  App.  605;  45  S.  W. 
Rep.  969.  In  such  a  case,  the  purchaser  must  show  that  the  vendor  inten- 
tionally misrepresented  or  concealed  some  fact  materially  affecting  the  title. 
Camp  v.  Pulver,  5  Barb.  (N.  Y.)  91. 

"Ante,  §  184.  Post,  §  329.  Webster  v.  Haworth,  8  Cal.  21;  78  Am,  Dec. 
287.  Here  the  purchaser  had  bought  at  a  sale  under  execution,  the  execution 
creditor  falsely  stating  that  his  judgment  was  the  first  lien  on  the  land.  The 
court  said  that  the  fact  that  the  purchaser  might  have  discovered  the  falsity 
of  the  statement  by  examining  the  public  records  did  not  affect  his  right  to 
relief.  Before  such  an-  examination  could  have  been  had,  the  sale  would  have 
been  over  and  the  opportunity  to  purchase  would  have  been  lost.  Benedict 
v.  Hunt,  32  Iowa,  27,  was  a  suit  by  a  mortgagee  against  one  who  had  pur- 
chased from  the  mortgagor  and  assumed  the  payment  of  the  mortgage.  It 
was  held  that  the  fraudulent  representations  of  the*  mortgagor  respecting  the 
title  were  no  reason-  for  denying  a  foreclosure*  of  the  mortgage,  but  was  a 
defense  against  the  plaintiff's  claim  for  a  personal  judgment  against  the 
purchaser. 

10  Brown  v.  Gordon,  7c  Min.  Co.,  44  Colo.  311;  97  Pac.  1042,  unless  his 
delay  was  caused  by  promises  of  the  vendor  to  settle  the  matter.  Fountain 
Val.  Co.  v.  Wagoner,  59  Colo.  55;  147  Pac.  333. 

u  Hawes  v.  Swenzey,  123  Iowa,  51 ;  98  N.  W.  586. 

"Ante,  ch.  2. 

"As  in  Smith  v.  Robertson,  23  Ala.  312. 


742  MAEKETABLE    TITLE    TO    REAL    ESTATE. 

At  common  law  neither  failure  of  the  consideration,14  nor  fraud,13 
in  the  procurement  of  a  contract  to  pay  money,  evidenced  by  a 
sealed  instrument,  could  toe  set  up  at  law  in  defense  of  an  action  on 
that  instrument,  the  defendant  being  remitted  to  equity  for  relief. 
But  now,  by  statute  in  most  of  our  States  equitable  defenses  are 
fully  allowed  in  actions  on  contracts,  so  that  if  the  purchase  money 
of  land  be  secured  by  bond  or  other  sealed  instrument,  the  defense 
that  the  promise  to  pay  was  induced  by  the  vendor's  fraudulent 
representations  as  to  the  title,  may  be  made  at  law,  as  well  as  in 
equity.18 

§  275.  EXECUTED  CONTRACTS.  If  the  purchaser  accepts  a 
conveyance  in  ignorance  of  the  fraud  of  his  vendor  in  relation  to 
the  title,  he  may,  in  an  action  for  money  had  and  received  to  his 
use,  recover  back  the  purchase  money  paid,  whether  the  conveyance 
was  with 1T  or  without  covenant?18  for  title.  And  in  a  like  case  he 

"Vrooman    v.   Phelps,    2    Johns.    (X.    Y.)     178.      1    Waite's    Actions   & 
Defenses,  701. 

"Wyche  v.  Macklin,  2  Rand.  (Va.)  426;  Franchot  v.  Leach,  3  Cow.  (X. 
Y.)  506;  Rogers  v.  Colt,  1  Zab.  (X.  J.  L.)  704;  Holly  v.  Younge,  27  Ala. 
203. 

'•1  Waite'g  Actions  &  Defenses,  701,  §  3.  Case  v  Boughton,  11  Wend. 
(X.  Y.)-  106.  Mr.  Warvelle,  in  his  work  on  Vendors,  page  653,  says  that  as  a 
rule  the  only  fraud  which  can  'be  -shown  at  law  to  avoid  a  deed,  or  the  effect 
of  its  covenants,  is  fraud*  in  the  execution,  as  where  it  was  untruly  read,  or 
where  there  has  been  a  substitution  of  one  installment  for  another,  and  mat- 
ters of  that  kind,  but  that  misrepresentation  of  collateral  facts,  fraud  in  the 
consideration,  etc.,  form  no  defense  at  law.  This  was  true  at  common  law 
in  an  action  on  a  scaled  instrument,  and  the  authorities  cited*  by  Mr.  Warvelle 
consist  chiefly  of  early  American  decisions  in  which  that  rule  was  applied. 
But  that  rule  has,  as  we  have  seen  (ante,  p.  494),  been  very  generally  relaxed 
by  statute  in  the  American  States,  so  that  in  an  action  on  a  bond  or  other 
sealed  instrument  the  defendant  is  free  to  pleud  fraud  in  the  procurement  or 
failure  of  the  consideration,  of  the  contract,  and  is  no  longer  driven  to 
equity  for  relief.  See,  also,  Rawle  Covta.  (5th  ed.)  §§  325,  332,  n.  4;  1 
Waite's  Actions  &  Defenses,  701. 

"Moreland  v.  Atchison,  10  Tex.  303.  The  cases  illustrating  this  rule  are 
comparatively  few,  because  resort  is  nearly  always  had  to  equity  to  rewind 
the  contract,  cancel  the  conveyance  and  decree  a  restitution  of  the  purchase 
money  where  the  grantor  has  been  guilty  of  fraud.  The  same  may  be  said  of 
B»m  where  the  consideration  remains  unpaid.  A  bill  is  generally  filed  to 
rescind  the  contract  and  restrain  the  grantor  from  proceeding  to  collect. 

-I).,rt.  V.  A  P.  612,  614;  Ilawle  Covts.  (5th  ed.)  |  322;  2  Warvelle  Vend. 
017;  Kerr  on  Fraud  (Am,  ed.),  327;  Pearttoll  v.  Chapin,  44  Pa.  St.  9;  More- 


DETENTION    OK    KESTITUTION    OF    PUHCHASE-MONEY.          743 

may  detain  the  purchase  money,  if  unpaid,19  though  there  were  no 
covenants.20  The  law  does  not  require  a  purchaser  to  take  cove- 
nants as  a  protection  against  fraud.21  If  facts  affecting  the  title 
have  been  concealed  from  the  purchaser,  he  will  be  entitled  to 
relief,  even  though  he  agreed  to  take  the  title  such  as  it  is.22 

land  v.  Atchinson,  19  Tex.  303;  Tucker  v.  Gordon,  4  Des.  (S.  C.)  53;  Nelson 
v.  Hamilton  Co.,  102  Iowa,  229;  71  X.  W.  Rep.  206.  A  purchaser  who  stipu- 
lates for  a  perfect  title,  but  is  induced  by  the  fraudulent  representations  of 
the  vendor  to  accept  a  quit-claim  deed,  may  recover  back  the  purchase  money 
or  detain  that  which  remains  unpaid.  Rhode  v.  Alley,  27  Tex.  443,  citing 
Mitchell  v.  Zimmerman,  4  Tex.  75;  51  Am.  Dec.  717;  York  v.  Gregg,  9  Tex. 
85;  Hays  v.  Bonner,  14  Tex.  629.  The  contract,  however,  was  executory  in 
each  of  these  three  cases.  Foster  v.  Gillam,  13  Pa.  St.  340.  In  Treat  v. 
Orono,  26  Me.  217,  it  was  held  that  the  purchase  money  could  only  be  re- 
covered back  from  a  party  to  the  fraud.  There  the  alleged  fraudulent  repre- 
sentations and  the  conveyance  had  been  made  by  a  municipal  officer,  but  the 
purchase  money  had  been  paid  to  the  municipality.  In  Walbridge  v.  Day,  31 
111.  379 ;  83  Am.  Dec.  237,  it  was  held  that  one  purchasing  from  the  grantee 
did  not  acquire  his  right  to  recover  back  the  purchase  money  from  the  orig- 
inal grantor  who  had  fraudulently  represented  the  title  to  be  good.  See, 
also,  Lejetme  v.  Herbert,  4  La.  Ann.  59. 

18  See  authorities  cited,  supra.  Whitney  v.  Allaire,  1  Comst.  (X.  Y. )  305; 
White  v.  Lowry,  27  Pa.  St.  254;  Concord  Bank  v.  Gregg,  14  N.  H.  331.  It 
is  a  novel  doctrine  that  a  written  warranty  is  a  bar  to  a  suit  or  defense 
founded  on  fraud  in  the  same  transaction,  and  the  cases  are  numerous,  not 
only  that  fraud  vitiates  all  contracts  tainted  by  it,  but  that  it  may  be  set  up 
in  contests  as  to  the  consideration  of  the  sales,  whether  a  warranty  existed 
or  not.  Smith  v.  Babcock,  2  Woodb.  &  M.  (U.  S.)  266.  A  vendor  selling 
land  subject  to  a  lien  for  unpaid  purchase  money,  which  he  does  not  disclose 
to  the  purchaser,  is  guilty  of  fraud,  and  the  purchaser  may  rescind  the  con- 
tract, though  he  holds  under  a  conveyance  with  warranty.  East  Tenn.  Nat. 
Bank  v.  First  Nat.  Bank,  7  Lea  (Tenn.),  420.  Case  may  be  maintained 
against  a  vendor  who  falsely  states  that  there  are  no  incumbrances  on  the 
estate,  though  the  purchaser  holds  under  a  covenant  against  incumbrances. 
Ward  v.  Wiman,  17  Wend.  (N.  Y.)  193;  Wardell  v.  Fosdick,  13  Johns.  (N. 
Y.)  325;  7  Am.  Dec.  383.  Where  the  grantor  fraudulently  concealed  the  fact 
that  certain  persons  were  in  adverse  possession  of  a  part  of  the  land,  the 
purchaser  was  allowed  to  detain  the  unpaid  purchase  money,  though  the  per- 
sons in  possession  disclaimed  any  interest  in  the  land.  Schamberg  v.  Leslie, 
19  Ky.  Law  R.  599-,  41  S.  W.  Hep.  265. 

20  See  authorities  cited,   supra.      1   Bigelow  on  Fraud,   415;    Rawle  Covts. 
•  (5th  ed.)    §   322.     Diggs  v.  Kirby,   40  Ark.   420;   Tucker  v.  Gordon,  4  Des. 

(S.  C.)  53;  Rogers  v.  Norton,  101  Ky.  650;  42  S.  W.  Rep.  97. 

21  Walsh  v.  Hall,  66  N.  C.  233. 

12  Farrell  v.  Lloyd,  69  Pa.  St.  239,  248.;  Lloyd  v.  Tarrell,  48  Pa.  St.  73. 


744  MARKETABLE    TITLE    TO    REAL    ESTATE. 

Fraud  by  the  grantor  vitiates  the  contract  so  far  as  he  is  con- 
cerned, and  he  can  claim  no  rights  under  it.  Hence,  it  follows  that 
the  purchaser  may,  where  the  conveyance  contains  covenants  for 
title,  in  case  of  fraud,  detain  the  purchase  money,  whether  the 
covenants  have  or  have  not  been  broken.23  He  cannot  be  compelled 
to  remain,  during  the  time  in  which  the  rights  of  an  adverse 
claimant  may  be  asserted,  in  a  state  of  uncertainty  whether,  on  any 
day  during  that  period,  he  may  not  have  his  title  impeached.24 
Where  the  contract  is  rescinded  for  defect  of  title  concealed  by  the 
vendor,  the  purchaser  will  be  entitled  to  a  decree  for  the  repayment 
of  the  purchase  money,  with  costs,  and  all  expenses  to  which  he 
had  been  put  relative  to  the  sale,  and  for  repairs  during  the  time 
he  had  possession.25 

In  some  cases  it  has  been  held  that  the  covenantee  cannot  set  up 
fraud  as  a  defense  to  an  action  for  the  purchase  money;  not,  in- 
deed, because  there  is  a  remedy  over  on  the  covenants  if  the  title 
fail,  but  because  a  court  of  law  cannot  do  complete  justice  between 
the  parties  by  placing  them  in  statu  quo,  and  that  the  remedy  of 
the  covenantee  in  such  case  is  in  equity.26  It  may  be  doubted 
whether  this  doctrine  exists  to  any  great  extent  in  the  United 
States,  in  view  of  generally  prevalent  legislation  admitting  equit- 
able defenses  in  actions  founded  on  contracts.  As  a  general  rule 
there  is  no  doubt  that  fraud  is  equally  cognizable  at  law  as  in 
equity.  The  principal  reason  for  going  into  a  court  of  equity  in 
such  cases  is  to  obtain  a  discovery.27 

"See  authorities  cited,  supra.  This  proposition  (in  the  form  of  an  excep- 
tion to  the  general  rule  that  a  purchaser  holding  under  a  deed  with  cove- 
nants cannot  detain  the,  purchase  money,  unless  the  covenants  have  been 
broken)  has  been  reiterated  so  frequently  in  the  decisions,  that  a  citation  of 
cases  to  support  it  seems  almost  an  a  fleet  at  ion.  Ed  wards  v.  Me  I. cay.  Coop. 
308;  2  Swanst.  287;  Stewart  v.  Insall,  »  Tex.  3J>7.  The  general  rule  is  that 
the  vendee  of  land  who  has  not  been  evicted,  must  rely  upon  his  covenants 
in  the  deed,  but  a  fraudulent  sale  is  always  an  exception  to  that  rule.  Gilpin 
v.  Smith,  II  S:n.  £  M.  (Miss.)  100. 

Ml  Sugd.  Vend.    (8th  Am.  ed.)    375   (246). 

"1  Sugd.  Vend.   (8th  Am.  ed.)   375  (246). 

"Cnllum  v.  Branch  Bank,  4  Ala.  35;  37  Am.  Dec.  726;  SUrk  v.  Hill,  6 
Ala.  785;  Pat  ton  v.  England,  15  Ala.  71. 

"Allen  v.  Hopson,  1  Freem.  Ch.   I  Mi-.)  276. 


DETENTION    OK    RESTITUTION    OF    PURCHASE-MONEY.          745 

A  statement  made  in  good  faith,  false  but  not  fraudulent,  will 
not  entitle  the  purchaser  to  recover  back  the  purchase  money  in  a 
case  to  which  the  covenants  do  not  extend.  The  scienter  or  fraud 
is  the  gist  of  the  action  where  there  are  no  covenants.28  What  con- 
duct or  representations  on  the  part  of  the  vendor  amount  to  fraud 
will  be  found  elsewhere  considered  in  this  work.29  The  purchaser 
has  a  remedy  not  only  against  the  grantor  in  a  case  of  fraud,  but 
against  third  persons  having  an  interest  in  the  transaction  who  aid 
in  practicing  the  deceit.  Thus,  a  note  broker  was  compelled  to 
refund  to  a  mortgagee  money  loaned  on  the  security  of  the  mort- 
gage, he  having  falsely  represented  that  there  were  no  prior  in- 
cumb ranees  on  the  property.30 

§  276.  WAIVER  IN  CASES  OF  FRAUD.  Of  course,  if  the  pur- 
chaser accept  a  conveyance  with  knowledge  of  the  fraud,  he  waives 
all  right  to  rescind  the  contract  because  of  the  fraud,  and  must  look 
to  his  covenants  for  redress.31  And  when  the  fraud  comes  to  his 
knowledge  after  the  acceptance  of  a  conveyance,  he  must  promptly 
exercise  his  right  to  rescind  the  contract.32  It  has  been  held  in 

28  2  Sugd.  Vend1.   (8th  Am.  ed.)   553.     Early  v.  Garrett,  4  Man.  &  Ry.  687. 

29Ante,  §  101. 

30Turnbull  v.  G-adsden,  2  Strobh.  Eq.    (S.  C.)    14. 

31 2  Warvelle  Vend.  919.    Ante,  §  270. 

32  Provident  L.  &  Tr.  Co.  v.  Mclntosh,  (Kan?)  75  Pac.  Rep.  498,;  Vaughn 
v.  Smith,  34  Oreg.  54;  55  Pac.  Rep.  99;  Duetzmann  v.  Kountze,  147  Iowa, 
158;  125  N.  W.  1007.  The  case  Lockrodge  v.  Foster,  4  Scam.  (111.)  570, 
affords  a  good  illustration  of  this  rule.  There  the  covenantee  had  taken 
possession  of  the  premises  with  knowledge  of  the  fraud,  and  the  court,  in 
denying  him  relief,  said :  "  Under  the  circumstances,  if  the  complainant  had 
resorted  to  equity  in  proper  time,  and  it  had  appeared  that  the  vendor  or 
his  legal  representatives  were  not  in  a  situation  to  perfect  the  title,  a 
rescission  of  the  contract  might  have  been  obtained.  But  on  discovering 
the  fraud,  he  was  at  liberty  to  consider  the  contract  at  an  end,  and  take 
the  necessary  steps  to  procure  its  rescission  or  to  confirm  it,  end-  rely  en  his 
covenants  of  warranty  to  make  good  the  failure  of  title.  This  was  a  privi- 
lege on  his  part.  The  election  rested  solely  with  him,  but  he  was  bound1  to 
make  it  within  a  reasonable  time.  The  whole  case,  in  our  opinion,  shows 
most  conclusively  that  he  elected  to  confirm  the  contract.  From  his  own 
showing,  he  discovered  the  fraud  in  the  fall  of  1837,  at  the  time  he  took 
possession  of  the  land,  before  he  made  any  improvements  on  it,  and  while  a 
great  portion  of  the  purchase  money  was  unpaid.  After  the  discovery  he 
proceeded  to  erect  a  dwelling  house  and  make  valuable  improvements  on  the 

94 


746  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

several  cases  and  there  are  dicta  in  others,  that  if  the  purchaser 
accept  a  conveyance  of  the  premises,  he  cannot  afterwards  maintain 
an  action  to  recover  damages  for  deceit  of  the  vendor  in  respect  to 
the  title;  all  that  passed  between  the  parties  in  the  course  of  the 
negotiation  being  regarded  as  merged  in  the  deed,  and  that  the 
purchaser's  remedy  is  upon  the  covenants,  if  any.83  The  better 
opinion,  however,  seems  to  be  that  only  matters  as  to  which  the 
purchaser  was  informed  can  be  regarded  as  merged  in  the  deed, 
and  that  if  he  were  ignorant  of  the  fraud  which  would  have  avoided 
the  contract,  he  loses  none  of  his  rights  by  accepting  the  deed." 

premises.  More  than  four  years  afterwards,  when  sued  for  the  balance  of  the 
purchase  money,  lie  makes  no  complaint  and  interposes  no  defense,  but  per- 
mits judgment  to  go  against  him,  and  not  until  a  partial  payment  of  the 
judgment  does  he  manifest  any  disposition  towards  a  rescission  of  the  con- 
tract. *  *  *  After  all  these  acts  of  continuation  and  acquiescence,  and 
five  years  subsequent  to  the  discovery  of  the  fraud,  he  comes  into  a  court  of 
equity,  and  asks  that  the  contract  may  be  annulled.  We  have  no  hesitation 
in  saying  that  he  is  effectually  concluded  by  his  own  positive  acts  from  at- 
taining this  object." 

"Peabody  v.  Phelps,  9  Cal.  214;  Leonard  v.  Pitney,  5  Wend.  (X.  Y.)  30. 
See,  also,  Peay  v.  Wright,  22  Ark.  198.  The  old  English  cases  of  Roswell  v. 
Vaughn,  1  Cro.  James,  196,  and  Lyaney  v.  Selby,  2  Ld.  Raym.  1119,  have  also 
been  cited  in  support  of  this  view.  In  the  first  case,  however,  there  does  not 
appear  to  hare  been  a  conveyance.  Relief  was  denied  the  purchaser  prin- 
cipally upon  the  ground  that  the  vendor  was  not  in  possession,  and  that  he 
should  have  looked  more  carefully  to  the  title.  In  Whitney  v.  Allaire,  1 
Comst.  (X.  Y. )  314,  the  right  of  a  covenantee  to  maintain  an  action  to  re- 
cover damages  for  deceit  respecting  the  title  was  questioned  by  BKONSON,  J., 
dissenting,  who  said,  "  In  the  usual  course  of  business  men  insert  covenants 
in  their  conveyances  of  real  estate  where  it  is  intended  that  the  vendor  ahal! 
answer  for  the  goodness  of  the  title;  and  it  is  easy  to  see  that  bad  conse- 
quences may  follow  if  the  vendee  shall  be  allowed  to  lay  aside  his  deed,  and 
have  an  action  founded  upon  conversations  about  the  title  pending  the  bar- 
gain. *  *  I  do  not  intend  to  express  a  definite  opinion  on  the  point, 
and  have  only  said  enough  to  show  that  it  is  a  grave  question,  which,  as  it  is 
not  necessarily  before  UH,  should  not  be  regarded  as  settled  by  our  decision.1' 
It  may  IT  doubted  whether  this  query  would  be  made  in  a  case  in  which  the 
covenantor  had  studiously  concealed  an  incumbrance  or  defect  in  the  title,  as 
in  Prout  r.  Roberts,  32  Ala.  427. 

"Ante,  |  209.  2  Warvelle  Vend.  957.  That  author  attributes  the  cases 
holding  the  opposite  view,  to  the  fact  that  the  grantee  has  his  remedy  over 
for  breach  of  the  covenants  for  title.  Those  cases,  however,  set-in  rather  to 
proceed  upon  the  idea  that  the  fraud  is  merged  in  the  conveyance,  whether 
with  or  without  covenants  for  title.  As  to  cases  in  which  there  ha*  been 


DETENTION    OK    RESTITUTION    OF    PURCHASE-MONEY.          747 

Indeed,  it  may  be  doubted  whether  in  such  a  case  the  purchaser 
would  be  held  to  have  waived  his  right  to  recover  damages  for  the 
fraud.  The  acceptance  of  a  conveyance  is  an  election  to  affirm 
the  contract,  but  it  has  been  held  that  the  purchaser  does  not  waive 
his  right  to  damages  by  affirming  the  contract  after  discovering 
the  fraud.30  True,  in  such  a  case,  the  purchaser  could  not  rescind 

fraud  as  to  the  title  and  also  a  breach  of  the  covenants.  Mr.  Warvelle  per- 
tinently observes,  "  The  liability  of  the  offending  party  is  totally  distinct  in 
either  case.  In  the  one  it  arises  ex  contractu,  in  the  other  ex  delicto;  and 
the  rule  upon  which  damages  are  awarded  is  different  in  each  instance.  Xor 
is  there  any  inconsistency  in  the  prosecution  of  the  two  remedies,  as  they 
both  proceed  upon  the  theory  of  an  affirmance  of  the  contract,  and  although 
differing  in  form,  one  does  not  allege  what  the  other  denies.  A  recovery  in 
one,  therefore,  will  not  preclude  a  prosecution  of,  or  recovery  in,  the  other, 
although,  of  course,  there  can  be  but  one  satisfaction  for  the  damages  sus- 
tained." Citing  Bowen  v.  Mandeville,  95  N.  Y.  237;  Allaire  v.  Whitney,  1 
Hill  (N.  Y.),  484;  Kimball  v.  Saguin,  (Iowa)  53  N.  W.  Rep.  116,  criticising 
Peabody  v.  Phelps,  supra.  Lee  v.  Dean.  3  Whart.  (Pa.)  315;  Orendorff  v. 
Tallman,  (Ala.)  7  So.  Rep.  821;  Gwinther  v.  Gerding,  3  Head  (Tenn.),  197; 
Bostwick  v.  Lewis,  1  Day  (Conn.),  250,  2  Am.  Dec.  73;  Whitney  v.  Allaire, 
1  Comst.  (N.  Y.)  314,  semble,  BHONSON,  J.,  dissenting;  Monell  v.  Golden,  13 
Johns.  (N.  Y.)  396,  7  Am.  Dec.  390;  Culver  v.  Avery,  7  Wend.  (N.  Y.)  380, 
22  Am.  Dec.  586,  where  the  false  representation  was  made  by  a  public  officer. 
The  court  said :  "  Whatever  is  said  or  done  in  good  faith  in  a  treaty  for  a 
sale  and  (purchase  is  merged  in  the  purchase  itself  when  consummated  (by 
conveyance),  and  you  cannot  overhaul  it  whether  the  representations  were 
true  or  false;  but  if  they  were  known  to  J>e  false  when  made,  and  have  pro- 
duced damage  to  the  opposite  party,  the  subsequent  consummation  of  the 
agreement  cannot  shield  the  defendant."  Wardell  v.  Fosdick,  13  Johns.  (N. 
Y.)  325,  7  Am.  Dec.  383,  where  the  vendor  sold  land  which  had  no  existence. 
That  fact,  however,  was  considered  immaterial  in  Ward  v.  Wiman.  17  Wend. 
(N.  Y.)  192,  196,  where  it  was  said  that  in  a  case  of  fraud  the  purchaser 
might  treat  the  deed  as  a  nullity.  In  Wilson  v.  Breyfogle,  63  Fed.  Rep. 
329  ( Cir.  Ct.  App. ) ,  it  was  held  that  a  grantee  with  warranty  who  had  been 
defrauded  by  fraudulent  representations  as  to  the  title,  might  sue  in  as- 
sumpsit  to  recover  back  the  purchase  monsy,  but  must  first  reconvey,  or 
offer  to  reconvey,  the  premises.  See,  also,  Bowden  v.  Achor  (Ga.),  22  S.  E. 
Rep.  254. 

*5 Allaire  v.  Whitney,  1  Hill  (N.  Y.),  484.  Allaire  had  leased  certain 
premises  of  Whitney,  the  term  to  begin  at  a  future  day.  Before  that  day  he 
discovered  that  the  lessor  had  fraudulently  represented  that  he  owned  a  part 
of  the  premises,  nevertheless  he  took  possession  and  obtained  a  lease  from 
the  real  owner  of  the  part  to  which  there  was  no  title.  The  court,  deciding 
that  Allaire  had  not  waived  his  right  to  damages,  observed,  "  It  is  not  neces- 
sary to  deny  that  where  a  vendee  or  a  lessee  takes  or  holds  possession  after 
he  has  discovered  the  fraud  of  his  vendor  or  lessor,  he  shall  not  be  allowed 


748  MAKKETABLE    TITLE    TO    REAL    ESTATE. 

the  contract,  but  obviously,  the  right  to  rescind,  and  the  right  to 
recover  damages  for  a  fraud  stand  upon  different  grounds,  and  the 
waiver  of  one  is  not  necessarily  a  waiver  of  the  other.  If  the  con- 
veyance contained  covenants,  the  practical  difference  between  an 
action  on  the  covenants,  and  an  action  for  deceit  is,  that  in  the 
former  action  he  could  recover  the  purchase  money  only  and 
nothing  for  the  loss  of  his  bargain,  and  no  more  than  nominal 
damages  unless  he  had  been  evicted,  while  in  the  latter  action  his 
recovery  would  be  measured  by  the  actual  damages  sustained. 

to  rescind  the  contract,  in  other  words,  to  say,  as  he  may  always  do  in  the 
first  instance,  that  the  whole  i»  void.  Certainly  the  jury  might  well  have 
been  instructed  in  the  present  case,  that  Allaire  had  made  the  lease  good  by 
election;  that  he  had  waived  the  right  to  consider  it  a  nullity.  That,  how- 
ever, is  a  very  different  matter  from  a  waiver  of  the  cause  of  action  or 
recoupment.  When  a  man  is  drawn  into  a  contract  of  sale  or  demise  by 
fraud,  a  right  of  action  attaches  immediately,  as  much  so  as  if  trespass  had 
been  committed  against  him;  and  though  he  may  affirm  the  transfer  of 
interest  and  take  the  property,  yet  waiver  is  no  more  predicable  of  the  cause 
of  action,  than  where  a  man  receives  a  delivery  of  goods  that  have  been 
tortiously  taken  from  him.  The  vendor  or  lessor  was  a  wrongdoer  when  he 
committed  the  fraud,  and  no  act  of  the  injured  party  short  of  a  release  or 
satisfaction  will  bar  the  remedy,  though  it  may  mitigate  the  amount  of 
damages."  See,  also,  1  Sugd.  Vend.  (14th  ed.)  251,  where  it  is  said: 
"  Although  in  equity  a  party  may  be  entitled  to  get  rid  of  a  contract  founded 
on  fraudulent  representations,  still  cases  might  occur  where  a  purchaser 
might  recover  damages  at  law  for  a  false  representation,  and  yet  be  pre- 
vented  by  his  own  conduct  from  rescinding  the  contract  in  equity,  and  the 
relief  in  equity  run  only  be  to  rescind  the  contract.  Damages  or  compensa- 
tion must  be  sought  at  law." 


OF  RECISSION  BY  PROCEEDINGS  IN  EQUITY. 
WHERE  THE  CONTRACT  is  EXECUTORY. 

CHAPTEE  XXX. 

OF  THE  SUIT  FOR  RESCISSION  PROPER. 

GENERAL  PRINCIPLES.    §  277. 

DEFENSES  TO  SUITS  FOR  SPECIFIC  PERFORMANCE.     §   278. 

PLACING  THE  VENDOR  IN  STATU  QUO.     §   279. 

INTEREST,  RENTS  AND  PROFITS.     IMPROVEMENTS.     §   280. 

PLEADING.     §  291. 

PARTIES.     §   282. 

§  277.  GENERAL  PRINCIPLES.  On-  failure  of  the  title  the 
purchaser,  instead  of  taking  such  steps  at  law  as  amount  to  a  recis- 
sion  of  the  contract,  such  as  bringing  an  action  to  recover  back  the- 
purchase  money,  or  resisting  proceedings  by  the  vendor  to  collect 
the  same,  may,  while  the  contract  is  executory,  resort  to  a  court 
of  equity  in  the  first  instance  and  ask  that  the  contract  be  formally 
rescinded.  In  such  case  the  court,  having  before  it  all  parties  in 
interest,  may,  if  it  appear  that  the  complainant  is  entitled  to  relief, 
enter  a  decree  rescinding  the  contract  and  adjusting  the  rights  of 
the  parties.  We  have  already  seen  under  what  circumstances  he 
may  have  an  injunction  against  the  collection  of  the  purchase 
money  where  the  contract  is  executory.1  And  the  purchaser  may, 
in  any  proceeding  by  the  vendor  to  enforce  specific  performance 
of  the  contract,  show  that  the  title  has  failed  or  is  not  such  as  the 
law  will  require  him  to  accept.  The  fact  that  the  vendor  honestly 
believed  his  title  to  be  good  is  no  ground  for  refusing  rescission.2 
The  jurisdiction  of  equity  for  the  rescission  of  executed  contracts 
is  limited,  as  will  be  seen,  chiefly  to  cases  where  the  contract  was 
procured  through  fraud  or  mistake;  but  where  the  contract  is 
executory,  a  complete  want  of  title  in  the  vendor,  irrespective  of 
the  question  of  his  good  faith,  seems  to  be  always  a  ground  in 

1  Ante,  §  250. 

"Boyce  v.  Grundy,  3  Pet.  (U.  S.)   210. 

[749] 


750  MARKETABLE    TITLE    TO    REAL    ESTATE. 

equity  for  rescinding  the  contract,8  unless  the  purchaser  has 
waived  or  lost  his  right  to  require  a  clear  title;  or  unless  he  is 
bound  by  the  terms  of  his  contract  to  take  such  title  as  the  vendor 
can  make;  or  unless  he  be  no  longer  able  to  place  the  vendor  in 
statu  quo.  It  has  also  been  held  that  equity  will  not  rescind  the 
contract  at  the  suit  of  the  purchaser,  if  the  defect  of  which  he  com- 
plains might  with  reasonable  diligence  have  been  discovered  by 
him  before  the  contract  was  made.  Thus  it  has  been  held  that  a 
purchaser  who  fails  to  make  reasonable  inquiries  as  to  possible 
dower  rights  in  the  premises,  must  seek  his  remedy  against  the 
vendor  at  law  and  not  in  equity,  if  disturbed  by  the  widow.4  This 
decision  seems  not  to  have  been  generally  followed  in  America, 
though  there  are  many  cases  which  decide  that  the  purchaser  can- 
not fix  fraud  upon  the  vendor  in  failing  to  disclose  defects  in  the 
title  which  might  have  been  discovered  by  the  exercise  of  ordinary 
diligence.* 

It  has  been  held  that  the  right  of  the  purchaser  to  rescind  an 
executory  contract  on  failure  of  the  title  is  not  dependent  on  his 
right  to  maintain  an  action  for  breach  of  the  contract,  and  that  he 
may  rescind  where  he  cannot  maintain  that  action.  Thus,  where 
the  purchaser,  knowing  that  the  vendor  could  not  convey  a  clear 
title,  made  a  sham  offer  of  performance  and  tender  of  the  balance 
of  the  purchase  money,  it  was  hold  that  he  could  not  recover  dam- 
ages for  a  breach  of  the  contract,  but  that  he  was  entitled  to  rescind 
the  contract  and  recover  back  what  he  had  already  paid.'  In  an 

•  Musselwhite  v.  Oleson,  60  Fla.  342,  53  So.  944;  Smith  v.  Robertson,  23 
Ala.  317,  where  it  was  said  that  though  there  may  be  no  actual  fraud  in 
making  a  contract,  a  total  inability  in  one  party  to  fulfill  it  discharges  tin- 
other,  and  a  court  of  equity  will  annul  a  contract  which  the  defendant  has 
failed  to  perform  or  cannot  perform.  Citing  Bullock  v.  IVcmi-s.  1  A.  K. 
Marsh.  (Ky.)  434;  Skilleen  v.  May,  4  Cranch  (U.  S.),  137.  But  see  Porks 
v.  Brooks,  16  Ala.  529,  where  rescission  was  refused  a  purchaser  who  h:id 
taken  a  bond  for  titles  and  could  not  show  that  the  obligor  was  insolvent. 
AH  a  matter  of  fact  suits  in  equity  by  the  purchaser  for  rescission  where  the 
contract  is  executory  are  comparatively  infrequent.  Usually  the  only  relief 
he  <-l;iim-  is  the  return  of  the  purchase  money,  and-  this  may  be  obtained. 
as  a  general  rule,  more  quickly  and  with  less  expense  in  the  action  for  money 
had  and  received  to  the  purchaser's  use.  See  ante.  ch.  24. 

4Greenleaf  v.  Queen,  1  Pet.  (U.  S.)   138. 

•Ante,  ch.  11.    Contra,  Crawford  v.  KeeWer,  6  Lea  (Tenn.),  547. 

•Lewis  v.  White,  16  Ohio  St.  441. 


OF  THE  SUIT  FOR  RESCISSION  PROPER.  751 

early  American  case  it  seems  to  have  been  held  that  want  of  title 
in  the  vendor  was  no  ground  for  rescinding  an  executory  contract 
for  the  sale  of  lands,  the  purchaser  having  an  adequate  remedy  at 
law  to  recover  back  the  purchase  money  or  to  recover  damages  for 
breach  of  the  contract.7  This  case  does  not  appear  to  have  been 
followed  in  America,  and  its  authority  may  well  be  doubted. 
Courts  of  law  have,  under  the  common-law  system  of  procedure,  no 
power  to  adjirst  equities  between  the  parties,  e.  g.,  to  decree  a 
restitution  of  the  premises,  to  settle  claims  for  interest  on  the 
purchase  money  paid  and  for  improvements  on  the  one  side,  and 
for  rents  and  profits  on  the  other.  On  these  grounds,  irrespective 
of  any  question  of  fraud  or  mistake,  the  jurisdiction  of  a  court  of 
equity  in  such  cases  seems  clear. 

Fraud  of  the  vendor  and  mistake  of  the  parties  in  respect  to  the 
title  are,  of  course,  grounds  for  rescinding  an  executory  contract 
for  the  sale  of  lands.  In  such  cases  the  remedy  in  equity  is  con- 
current with  that  at  law.8  What  constitutes  fraud  in  the  vendor 
has  been  elsewhere  considered.9  The  fact  that  the  agreement  has 
been  reduced  to  writing  will  not  prevent  the  purchaser  from  show- 
ing that  the  vendor,  at  the  time  the  contract  was  closed,  made 
fraudulent  representations  as  to  the  state  of  the  title.  The  rule 
in  this  respect  is  the  same,  whether  the  contract  be  executory  or 
has  been  executed  by  a  conveyance  with  or  without  covenants  for 
title.10 

If  the  objection  to  the  title  be  that  the  vendor  has  no  power  to 
sell  and  convey  the  premises,  it  has  been  held  that  a  suit  for  a 
rescission  of  the  contract  cannot  be  maintained  by  the  purchaser.11 

'Hepburn  v.  Dimlop,  1  Wh.  (U.  S.)  ;  Id.  3  Wh.  (U.  S.)  231.  The  failure 
of  the  consideration  is  always  a  ground  for  the  rescission  of  a  contract  for 
the  sale  of  lands.  Hadlock  v.  Williams,  10  Vt,  570;  Greenleaf  v.  Cook,  2  Wh. 
(U.  S.)  13,  16;  Hart  v.  Handlin,  43  Mo.  171. 

8Innes  v.  Willis,  16  Jones  &  S.  (N.  Y.)  188;  Goodman  v.  Rust,  4  T.  B. 
Mon.  (Ky.)  421;  Smith  v.  Robertson,  23  Ala.  312;  Liddell  v.  Sims,  9  Sm. 
&  M.  (Miss.)  596;  Davis  v.  Heard,  44  Miss.  50;  Holland  v.  Anderson,  38 
Mo.  55. 

"Ante,  ch.  11. 

10Sugd.  Vend,  (llth  Eng.  ed.)  53,  586;  Boyce  v.  Grundy,  3  Pet.  (U.  S.) 
210. 

11  Bruner  v.  Meigs,  64  N.  Y.  506,  per  ALLEN,  J.  The  authority  of  this  case 
may  be  doubted.  The  reason  given  for  the  decision  would  apply  in  most  cases 


752  MABKETABLE    TITLE    TO    HEAL    ESTATE. 

The  reason  assigned  for  this  decision  was  that  the  purchaser  had 
a  perfect  defense  at  law  and  in  equity  to  any  proceeding  by  the 
vendor  to  enforce  the  agreement,  and  that  an  action  by  him  would 
be  necessary.  We  have  already  seen  under  what  circumstances  the 
purchaser  will  be  deemed  to  have  waived  his  right  to  rescind  a  con- 
tract or  to  resist  a  suit  for  specific  performance  on  the  ground  that 
the  title  is  defective.12  Where  the  purchaser  in  a  suit  by  him  for 
rescission,  offers  to  complete  the  contract  if  the  court  shall  be  of 
opinion  that  the  title  is  marketable,  and  the  court  so  decides,  he  is 
estopped  from  urging  further  any  right  to  rescind.13 

§  278.  DEFENSES  -TO  SUIT  FOB  SPECIFIC  PERFORMANCE. 
The  purchaser,  when  the  vendor  seeks  to  compel  specific  per- 
formance of  the  contract,  may  of  course  show  that  the  title  is  bad," 
or  doubtful,  and  such  as  he  cannot  be  required'  to  accept.15  It  is 
an  elementary  rule  that  the  vendor,  seeking  specific  performance 
of  the  contract,  must  show  that  he  is  ready,  able,  and  willing  to 
perform  all  the  obligations  iliat  rest  on  him  in  respect  to  the 
exhibition  and  conveyance  of  a  good  title  to  the  premises.18  As  a 
general  rule  wherever  he  has  a  right  to  rescind  the  contract  on  the 
ground  that  the  title  has  failed,  he  may  avail  himself  of  the  same 
facts  as  a  defense  to  a  suit  by  the  vendor  for  specific  performance. 
The  position  of  the  purchaser  in  such  a  case  is  perhaps  stronger 
than  if  he  were  plaintiff,  for  it  has  been  often  held  that  under 
some  circumstances  a  court  of  equity  may  refuse  to  rescind  a  con- 
in  which  the  purchaser  goes  into  equity  for  a  rescission  of  an  executory  con- 
tract. Should  the  purchaser  l>c  compelled  to  await  the  motions  of  the  vendor? 
If  the  JMIK  li.i-i-  money  was  paid  to  the  latter  he  would  probably  concern 
hiin.-cli"  no  further  about  the  agreement. 

"Ante,  "Waiver  of  Objections,"  §  80. 

"Hyde  v.  Heller,  10  Wash.  580,  39  Pac.  Rep.  240. 

"Ranck  v.  Wick  wire,  255  Mo.  42,  104  S.  W.  400.  Even  though  the  contract 
states  that  the  purchaser  is  satisfied  with  the  title,  he  will  not  be  required 
to  take  the  title  if  it  is,  in  fact,  bad.  Clark  v.  Rosario  Min.  Co.,  170  Fed. 
180,  99  C.  C.  A.  534. 

"What  matters  are  sufficient  to  render  a  title  doubtful  or  unmarketable 
will  be  hereafter  considered.  Post,  ch.  31. 

M  Cable  v.  Hoffman,  273  111.  272,  112  N  E.  670;  Smith  v.  Johnson,  35 
8.  D.  603,  153  N.  W.  370,  a  case  in  which  the  vendor  lost  his  right  to  a 
desert  land  filing  by  failure  to  do  the  required  amount  of  work  on  the  lurid. 


OF  THE  SUIT  FOE  RESCISSIOX  PROPER.  753 

tract  for  the  sale  of  lands  which,  it  would  not  specifically  enforce,17 
leaving  the  parties  to  their  remedy  at  law.18  If  the  vendor,  in 
consequence  of  disputes  about  the  title,  turns  the  purchaser  out  of 
possession,  he  cannot  afterwards  insist  upon  a  specific  performance 
of  the  contract.19  Nor  will  he  be  entitled  to  this  relief  if,  subse- 
quent to  the  contract,  he  places  a  mortgage  on  the  premises.20  The 
purchaser  cannot  of  course  set  up  want  of  title  in  the  vendor  as  a 
defense  to  a  suit  by  the  latter  for  specific  performance,  where  by 
the  terms  of  the  contract,  the  purchaser  was  to  take. merely  such 
title  or  interest  as  the  vendor  had.21  But  specific  performance 
will  not  be  decreed  at  the  instance  of  the  vendor,  if  he  cannot  con- 
vey a  clear  title,  though  no  provision  was  made  in  the  contract  for 
a  covenant  of  warranty  to  be  inserted  in  the  deed,  unless  the  pur- 
chaser expressly  assumed  the  risk  as  to  title.22  If  the  purchaser 
defends  a  suit  for  specific  performance,  the  mere  allegation  that  the 
vendor's  title  is  defective,  will  not  suffice.  He  must  set  forth  and 
prove  the  specific  defects  of  which  he  complains.23  But,  it  is  ap- 
prehended, that  the  vendor  must  show  in  the  first  instance  a  record 
title  that  is  prima  facie  clear  and  unobjectionable,  for  by  insisting 
upon  specific  performance  he  avers  that  his  title  is  such  as  the 
purchaser  can  be  required  to  take.  In  the  nature  of  things,  how- 
ever, he  cannot  show  that  there  can  be  no  possible  objection  to  his 
title.  Reason  and  convenience  both  require  that  having  shown  a 

"2  Kent  Com.  (llth  ed.)  487;  Mortlock  v.  Buller,  10  Ves.  292;  Jackson 
v.  Ashton,  11  Pet.  (U.  S.)  248;  Dunlap  v.  Hepburn,  1  Wheat.  (U.  S.)  197; 
Morgan  v.  Morgan,  2  Wheat,  (U.  S.)  290;  Beck  v.  Simmons,  7  Ala.  71; 
Park  v.  Brooks,  16  Ala.  529;  Seymour  v.  Delancy,  3  Cow.  (N.  Y.)  530,  15 
Am.  Dec.  270;  Osgood  v.  Franklin,  2  Johns.  Ch.  (X.  Y.)  23,  7  Am.  Dec.  513; 
Cans  v.  Renshaw,  2  Pa.  St.  34,  44  Am.  Dec.  152;  Louisville,  etc.,  R.  Co.  v. 
Stone  Co.,  (Ind.  Sup.)  39  X.  E.  Rep.  703. 

18  Jackson  v  Ashton,  11  Pet.   (U.  S.)   229. 

19Knatchbull  v.  Grueber,  3  Mer.  124. 

20Ha<ber  v.  Burke,  11  S.  &  R.   (Pa.)   238. 

21Broyles  v.  Bell,  18  W.  Va.  514;  Bailey  v.  James,  11  Grat.  (Va.)  468, 
62  Am.  Dec.  659. 

-Bates  v.  Delavan,  5  Paige  Ch.  (X.  Y.)  299;  Chambers  v.  Tulane,  9  X.  J. 
Eq:  146. 

""Glasscock  v.   Robinson,   21    Miss.   85;   Heath  v.   Xewman,    11    Sm.   &   M. 
(Miss.)    201;   Harris  v.  Bolton,   7  How.    (Miss.)    1C7;   Allen  v.  Adams,   162 
Iowa,  300,   143  X.  W.   1092. 
95 


754  MARKETABLE    TITLE    TO    REAL    ESTATE. 

title  apparently  good,  the  burden  shifts  to  the  purchaser,  and  com- 
pels him  to  show  in  what  respect  the  title  is  defective  or  objection- 
able. If  the  plaintiff  cannot  convey  the  title  mentioned  in  the 
agreement,  his  bill  will  be  dismissed,  though  such  objection  be  not 
«•  made  in  the  answer,  nor  taken  until  a  hearing  before  a  master  upon 
a  reference.24  But  it  has  been  held  that  a-  purchaser  who  by  the 
exercise  of  due  diligence  might  have  discovered  an  objection  to  the 
title  and  set  up  the  same  as  a  defense  in  a  suit  for  specific  per- 
formance before  decree,  could  not,  after  decree,  avail  himself  of 
such  defect  by  additional  pleadings,  though  he  might,  if  the  vendor 
be  insolvent,  suspend  payment  of  the  purchase  money  until  the 
defect  could  be  investigated.25 

The  sufficiency  of  the  title  offered  by  the  vendor  is  to  be  deter- 
mined as  of  the  date  fixed  for  the  performance  of  the  contract, 
and  not  as  of  a  time  subsequent  to  the  filing  of  the  bill  for  specific 
performance.2* 

If  the  purchaser  rejects  the  title  the  vendor  must  promptly 
insist  upon  performance,  otherwise  he  will  be  taken  to  have 
acquiesced  in  the  purchaser's  election  to  rescind.27 

It  has  been  held  that  a  vendor  claiming  specific  performance  of 
the  contract,  and  resting  the  validity  of  his  title  upon  a  particular 
ground,  cannot,  after  litigation  has  begun,  shift  his  ground  and 
allege  a  valid  title  from  other  sources,  and  this  upon  the  principle 
that  a  party  giving  a  reason  for  his  conduct  and  decision  touching 
anything  involved  in  a  controversy,  cannot,  after  litigation  has 
begun,  change  his  ground  and  put  his  conduct  upon  another  and 
different  construction.28 

The  vendor,  by  the  institution  of  a  suit  against  a  stranger  to 

"Park  v.  Johnson,  7  Allen  (Ma»s.)  378. 

"Denny  v.  Wicklifle.   1   Mote.   (Ky.  216. 

"Smith  v.  Hunter,  241  111.  514.  SO  X.  E.  686,  132  Am.  St.  Rep.  231;  Baker 
v.  Baker,  2*4  111.  537,  120  X.  E.  525:  Denny  v.  Cox,  206  111.  App.  512. 

"Scott  v.  De*ire.  175  111.  App.  215. 

"Weinstook  v.  Levinon.  20  AM..  X.  Ca*.   (X.  Y.)   244,  citing  Ohio  &  Miss. 

R.   Co.  v.   McCarthy,  06   I'.   S.  258,   a   caw,   however,   which   did   not  arise 

between  vendor  and   purchaser.     It  may   be  doubted   whether   th»>   rule   thus 

declared  would  apply  in  a  caw  in  which  the  change  of  position  by  the  vendor 

did  not  operate,  and  could  not  have  operated  to  the  injury  of  the  purchaser. 


OF  THE  SUIT  FOE  RESCISSION  PROPER.  755 

quiet  the  title,  admits  that  his  title  is  not  such  as  the  purchaser 
can  be  required  to  take.29 

§  279.  PLACING  THE  PARTIES  IN  STATU  QUO.  It  is  a  cardi- 
nal rule  that  in  every  proceeding  in  which  an  abrogation  or  rescis- 
sion of  a  contract  for  the  sale  of  lands  is  effected,  whether  it  be 
the  act  of  the  parties  or  the  act  of  the  law,  whether  it  be  the  result 
of  an  action  to  recover  back  the  purchase  money  paid,  or  of  an 
injunction  to  restrain  the  collection  of  the  purchase  money,  or  of  a 
direct  suit  in  equity  for  rescission,  either  party  must  be  placed  in 
the  same  position  in  which  he  was  before  he  entered  into  the  con- 
tract. Unless  this  can  be  substantially  clone,  there  can  be  no  rescis- 
sion, and  the  parties  will  be  left  to  their  remedies  at  law  upon  the 
contract.  Xo  rule  of  law  is  better  settled  than  that  a  purchaser  of 
a  chattel  which  proves  to  be  unsound,  cannot  keep  .the  chattel  and 
refuse  to  pay  the  purchase  money,  and  that  he  cannot  detain  the 
purchase  money,  if  he  has  consumed  or  destroyed  the  chattel  so 
that  he  cannot  restore  it  to  the  vendor.  He  may,  of  course,  keep 
the  chattel  and  recover  damages  for  the  breach  of  the  express  or 
implied  warranty  of  its  soundness,  but  that  is  an  election  to  affirm 
and  not  to  rescind  the  contract.  There  is  no  difference  in  the  ap- 
plication of  these  principles  to  executory  contracts  for  the  sale  of 
lands.  Hence,  it  follows  that  a  purchaser  seeking  a  rescission  of 
the  contract  in  equity  on  the  ground  that  the  title  has  failed,  must 
restore  the  premises  to  the  vendor  before  he  will  be  absolved  from 
his  obligation  to  pay  the  purchase  money.30 

29  Munyon  v.  Hartman,  262  Mo.  449,  171  S.  W.  61. 

J01  Sugd.  Vend,  347.  Ante,  §  256.  Wickham  v.  Evered,  4  Madd.  53; 
Tindal  v.  Cobham,  2  Myl.  &  K.  385;  Fowler  v.  Ward,  6  Jur.  547;  Nicholson 
v.  Wordsworth,  2  Swan.  365;  Southcomb  v.  Bishop,  6  Hare,  213;  Gordan  v. 
Mahoney,  13  Ir.  Eq.  383;  Garner  v.  Leverett,  32  Ala.  410;  Duncan  v.  Jeter, 
5  Ala.  604,  39  Am.  Dec.  342;  Fitzpatrick  v.  Featherstone,  3  Ala.  40;  Sea- 
burn  v.  Sutherland,  17  Ark.  603;  Wheat  v.  Dotson,  12  Ark.  698;  Lane  v. 
Latimer,  41  Ga.  171;  Underwood  v.  West,  52  111.  597;  Smith  v.  Brittenham, 
98  111.  188;  Deal  v.  Dodge,  26  111.  459;  Gehr  v.  Hogerman,  26  111.  438;  Vining 
v.  Leeman,  45  111.  246;  Marvin  v.  Applegate,  18  Ind.  425;  Osborn  v.  Dodd, 
8  Blackf.  (Ind.)  467;  Cain  v.  Guthrie,  8  Blackf.  (Ind.)  409;  Brumfield  v. 
Palmer,  7  Blackf.  (Ind.)  227;  White  v.  Hardin,  5  Dana  (Ky.),  141;  Peebles 
v.  Stephens,  3  Bibb  (Ky.),  324,  6  Am.  Dec.  660;  Wickliff  v.  Lee,  4  Dana 
(Ky. ),  30;  Matta  v.  Henderson,  14  La.  Ann.  473;  Clark  v.  Briggs,  5  La. 
Ann.  624;  McDonald  v.  Vaughan,  14  La.  Ann.  716;  Shipp  v.  Wheles,  33  Misa. 
646;  Williamson  v.  Ramey,  1  Freem.  Ch.  (Miss.)  112;  Hill  v.  Samuel,  31 


756  MARKETABLE    TITLE    TO    REAL    ESTATE. 

The  purchaser  will  not  be  permitted  to  rescind  the  contract  if  he 
has  made  material  alterations  in  the  property,  such  as  to  change  its 
nature  and  character,  if  they  are  of  a  kind  which  do  not  admit  of  a 
restoration  of  the  property  to  its  former  condition,  or  if  he  decline 
or  be  unable  to  restore  it  to  thai  condition.31  Xor  where  he  has 
disabled  himself  from  restoring  the  possession  to  the  vendor  by 
conveying  the  premises  to  a  stranger.33  Xor  where  a  portion  of 
the  premises  have  been  sold  under  execution  against  him.33  Xor 
where  he  has  materially  impaired  the  value  of  the  land  by  cutting 
down  the  timber.34  But  in  cases  in  which  the  purchaser  acted  in 
good  faith  and  the  injury  to  the  premises  is  capable  of  ascertain- 
ment and  deduction  from  the  purchase  money  he  is  seeking  to 
recover  back,  he  may  have  a  rescission  of  the  contract  though  the 

Miss.  307:  Smith  v.  Busby,  15  Mo.  387,  57  Am.  Deo.  207;  Young  v.  Stevens, 
4S  X.  H.  133,  2  Am.  Rep.  202;  Sandford  v.  Travers.  7  Bosw.  (X.  Y.)  498; 
More  v.  Stnedhurgh,  8  Paige  Ch.  (X.  Y.I  600;  Tompkins  v.  Hyatt.  28  X.  Y. 
347:  Goelth  v.  White,  35  Barb.  (X.  Y.)  76:  Schroeppel  v.  Hopper,  40  Barb. 
(X.  Y.)  425:  Ynn  F.pps  v.  Harrison,  5  Hill  (X.  Y.),  63.  40  Am.  Dee.  314; 
Tallmad-re  v.  Wallis,  25  Wend.  (X.  Y.)  107;  Masson  v.  Bovet.  1  Den.  (X.  Y.) 
73,  43  Am.  Dee.  6.11;  Xicoll  v.  Carr,  35  Pa.  St.  381;  Congregation  v.  Miles, 
4  Watts  (Pa.),  14(5:  Clarke  v.  Locke,  11  Humph.  (Tenn.)  300;  Officer  v. 
Murphy,  8  Yerg.  (Tenn.)  502;  Lynch  v.  Baxter,  4  Tex.  431,  51  Am.  Dec.  735: 
Hyslip  v.  French.  52  Wis.  513;  Grant  v.  Law,  29  Wis.  99;  Hendricks  v. 
G«odrich,  15  Wis.  G79.  In  Perry  v.  Boyd,  126  Ala.  162,  28  So.  Rep.  711,  it 
was  held  that  the  grantee  may  maintain  his  bilK  for  rescission  without  having 
restored  or  having  offered  to  restore,  the  premises  to  the  grantor.  It  seems, 
however,  that  the  property  to  which  the  title  failed  in  that  case  consisted 
principally  <>f  itn  easc-im-nt  the  right  to  excavate  a  tunnel  through  lands  of  the 
grantor.  The  bill  averred  a  willingness  to  reconvey. 

"Dart  V.  i  P.  (5th  ed.)  440;  Donovan  v.  Frisker,  Jac.  165.  In  this  case 
the  purchaser  was  required  to  reinstate  a  private  dwelling  which  he  had  con- 
verted into  a  shop.  Where  the  purchaser  retained  possession  for  a  number 
of  years,  received  the  rents,  changed  the  condition  of  the  estate,  and  mail. 
lading  improvements,  it  was  held  that  he  could  not  put  the  vendor  in  statn 
quo,  and.  therefore,  could  not  rescind  the  contract.  Patten  v.  Stewart,  24 
Ind.  332. 

•McKcen  v.  Benupland,  "~>  Pa.  St.  4S8;  Rogers  v.  Olshoffsky,  110  Pa.  St. 
147.  2  Atl.  Rep.  44:  Colyer  v.  Thompson,  2  T.  B.  Mon.  (Ky.)  16.  Where  the 
render  by  agreement  with  the  vendee,  conveys  portions  of  the  premises  in  lot* 
to  third  persons,  as  they  are  Mild  (iff  by  the  vendee,  he  (the  vendor)  cannot 
in  an  action  for  rescission,  the  title  being  bad,  object  that  the  entire  premises 
cannot  be  restored  to  him.  Wilcox  v.  Lattin,  93  Cal.  588,  29  Pac.  Rep.  226. 

"Clark  v.  Brings,  5  La.  Ann.  «24. 

••Gehr  v.  Hagerman,  2ti  III.  459. 


OF  THE   SUIT  FOE  RESCISSION  PEOPEE.  757 

property  cannot  be  restored  in  specie.35  If  the  purchaser  be  un- 
able to  put  the  vendor  in  statu  quo,  he  has  his  remedy  over' by 
action  on  the  case  if  the  vendor  was  guilty  of  fraud.36 

It  has  frequently  been  held  that  a  contract  for  the  sale  of  lands 
cannot  be  partially  rescinded,  that  it  must  be  rescinded  in  toio, 
if  at  all,37  by  which  appears  to  be  meant  that  upon  rescission 
neither  party  will  be  permitted  to  retain  anything  which  he  has 
received-  by  virtue  of  the  contract.  If  the  purchaser  refuse  to 
complete  the  contract  on  the  ground  that  the  title  to  a  portion  of 
the  premises  has  failed,  and  insist  upon  retaining  possession  of  the 
other  part,  the  vendor  may  maintain  a  bill  to  compel  him  to  elect 
whether  he  will  accept  the  title,  or  abandon  the  contract  and  restore 
the  possession.38 

If  on  rescission  the  purchaser  refuse  to  restore  the  premises  the 
vendor  may  recover  them  in  ejectment.39  In  such  an  action  the 
purchaser  cannot  set  up  paramount  title  in  the  third  person  as  a 
defense.40  The  purchaser  is  estopped  to  deny  the  title  of  his 
vendor.41  Even  where  he  buys  in  an  adverse  claim  to  the  premises, 
he  must  surrender  possession  before  he  can  claim  rescission  against 
his  vendor.  He  must  take  his  chances  of  recovering  the  land  on 

33 Wright  v.  Dickinson,  67  Mich.  580;  Calhoun  v.  Belden,  3  Bush  (Ky.), 
674,  where  the  residence  on  the  purchased  premises  had  been  destroyed  by 
fire.  In  Alabama  the  rule  that  the  purchaser  must  restore  the  premises  be- 
fore he  can  have  a  rescission  of  the  contract,  has  been  held  not  to  apply  where 
retention  of  the  property  is  necessary  for  the  indemnity  or  reimbursement  of 
the  purchaser,  as  where  the  vendor  is  insolvent  and  cannot  return  the  pur- 
chase money.  Garner  v.  Leveritt,  32i  Ala.  413;  Young  v.  Harris,  2  Ala.  108; 
Elliott  v.  Boaz,  &  Ala.  772;  Greenlee  v.  Gaines,  13  Ala.  198,  47  Am.  Dec  49; 
Parks  v.  Brooks,  16  Ala.  529;  Read  v.  Walker,  18  Ala.  323;  Foster  v.  Gres- 
sett,  29  Ala.  393;  Gallagher  v.  Witherington,  29  Ala.  420;  Duncan  v.  Jeter, 
5  Ala.  604,  39  Am.  Dec.  342. 

39Hogan  v.  Weyer,  5  Hill  (N.  Y.),  3S9. 

37  2  Kent  Com.  408;  2  Warvelle  Vend.  878,     Cases  cited  supra,  this  sec- 
tion.    Benjamin  v.   Hobbs,   31   Ark.    151;    Lovingston  v.   Short,   77   111.   587; 
Porter  v.  Titcomb,  22  Me.  300;  Hogan  v.  Weyer,  5  Hill   (N".  Y.),  389. 
'  3S  Davison  v.  Perrine,  22  N.  J.  Eq.  87. 

"  1  Sugd.  Vend.  (8th  Am.  ed.)  276  (179).  Nicoll  v.  Carr,  31  Pa,  St.  381; 
Fowler  v.  Cravens,  3  J.  J.  M.  (Ky.)  3;  20  Am.  Dec.  153, 

40 Fowler  v.  Cravens,  3  J.  J.  M.   (Ky.)   3,  20  Am.  Dec.  153. 

"Ante,  §  259a;  Wolter  v.  Dixon,  29  Idaho,  26,  157  Pac.  250. 


738  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

the  title  thus  acquired.0  If,  however,  he  purchases  in  ignorance 
of  the  fact  that  the  paramount  title  already  exists  in  himself  ho 
cannot  be  required  to  surrender  the  possession  before  asserting  his 
better  title.43 

The  rule  which  requires  the  restoration  of  the  parties  to  their 
former  condition  is  satisfied  by  substantial  compliance  therewith, 
since  it  is  obviously  impossible  for  the  parties  to  be  placed  in  the 
precise  condition  in  which  they  were  before  the  contract  was 
entered  into.  Accordingly,  it  is  generally  considered  that  the  rule 
is  satisfied  by  restoring  the  premises  unimpaired,  together  with  the 
n-iits  and  profits,  to  the  vendor,  and  the  purchase  money,  with  in- 
terest, costs  and  expenses  for  improvement,  to  the  purchaser.44  In 
some  cases  it  has  been  held  that  the  restoration  of  the  premises  to 
the  vendor  on  failure  of  the  title  is  a  condition  precedent  to  the 
right  to  maintain  a  suit  for  rescission.45  It  may  be  doubted 
whether  such  a  rule  would  apply  where  the  court  has  power  to 
enter  a  judgment  or  decree  conditioned  to  be  inoperative  unless  the 
premises  be  restored  to  the  vendor.48 

The  cases  in  which  the  purchaser  may  have  a  rescission  of  the 
contract  without  restoring  the  premises  to  the  vendor  have  been 

"Grundy  v.  Jackson,  1  Lilt.  (Ky.)  11;  Officer  v.  Murphy,  8  Yerg.  (Tenn.) 
502.  Ante,  ft  259a. 

«*Southeomb  v.  Bishop,  0  Hare,  213. 

"Masson  v.  Bovet.  1  Den.  (X.  Y.)  74,  43  Am.  Dec.  651;  Bank  v.  Ettinge, 
4O  X.  Y.  301.  In  this  case  it  was  held  that  the  vendor  could  not  require  the 
purchaser  to  indemnify  him  for  expenditures  which  he  had  made  upon  the 
expectation  of  receiving  money  under  the  contract.  As  to  the  contention  that 
each  party  must  be  restored  to  the  precise  condition  in  which  he  was  before 
the  contract  was  made,  the  court  said:  "The  application  of  this  principle  to 
the  present  case  would  substantially  destroy  the  rule  that  money  paid  tinder 
a  mistake  of  fact  may  IH«  recovered  back.  If  the  facts  could  be  so  arranged 
that  there  should  be  no  loss  to  either  party  there  would  be  nothing  to  contend 
•bout,  and  »o  no  auch  actions  would  be  brought.  *  *  *  It  is  an  ordinary 
result  of  the  transaction  that  the  party  receiving  has  incurred  liabilities  or 
paid  money  which  ho  would  not  have  done  except  for  the  receipt  of  the 
money." 

•Ante,  |  2/5S.  Eames  v.  Der  Germania  Turn  Verein,  8  111.  App.  063,  citing 
Hunt  v.  Silk,  5  East,  449,  and  Norton  v.  Young,  3  Greenl.  (Me.)  30. 

**In  Pennsylvania  a  condition  requiring  the  purchaser  to  reconvey  the 
premises  to  the  vendor  may  be  inserted  in  the  verdict.  Babcock  v.  Case,  61 
Pa.  St.  427. 


OF  THE  SUIT  FOE  RESCISSION  PROPER.  759 

elsewhere  considered  in  this  work.47  The  court,  in  decreeing  a 
rescission  of  the  contract  on  the  ground  of  failure  of  title,  will 
direct  outstanding  purchase-money  notes  to  be  delivered  up  and 
canceled,  and  will  also  direct  that  any  bond  for  title  or  other 
obligation  to  convey  executed  by  the  vendor,  be  surrendered  by 
the  purchaser  and  canceled.48 

§  280.  INTEREST.  BENTS  AND  PROFITS.  IMPROVEMENTS. 
On  rescission  of  an  executory  contract  for  the  sale  of  lands  for 
want  of  title  in  the  vendor,  whether  by  suit  in  equity  or  action  at 
law  to  recover  back  the  purchase  money,  the  purchaser,  if  he  has 
never  been  in  possession,  will  be  entitled  to  interest  on  the  pur- 
chase money  he  has  paid.49  If  he  has  been  in  possession  the 
general  rule  is  that  the  vendor  may  set  off  the  rents  and  profits 
against  interest  on  the  purchase  money,50  taking  into  consideration, 
of  course,  any  material  inequality  between  the  two  items.51  Even 

47  Ante,  §  261. 

"McKay  v.  Carrington,  1  McLean  (U.  S.),  50;  Colpe  v.  Lindblom,  57 
Wash.  106,  106  Pac.  634.  In  Williams  v.  Carter,  3  Dana  (Ky.),  198,  the 
purchase-money  notes  could  not  be  delivered  up  because  they  had  been 
destroyed  by  the  vendor,  and  a  decree  was  entered  rescinding  the  contract. 
McGee  v.  Carrico,  6  Litt.  (Ky.)  393. 

48  2i  Warvelle  Vend.  885. 

50  2,  Warvelle  Vend.  885;  Watts  v.  Waddle,  6  Pet.  (U.  S.)  389;  Mclndoe 
v.  Morman,  26  Wis.  588,  7  Am.  Rep.  96;  White  v.  Tucker,  52  Miss.  145; 
Axtel  v.  Chase,  77  Ind.  74;  Baston  v.  Clifford,  68  111.  67;  Bitzer  v.  Orban, 
88  111.  130;  McManus  v.  Cook,  59  Ga.  485;  Todd  v.  McLaughlin,  125  Mich. 
268,  84  N.  W.  Rep.  146;  Griffith  v.  Depevv,  3  A.  K.  Marsh.  (Ky.)  177,  13 
Am.  Dec.  141,  where  held  that  interest  should  run  only  from  date  of  suit  for 
rescission,  and  that  rents  and  profits  should  be  charged  against  the  purchaser 
from  the  same  period.  Morton  v.  Ridgway,  3  J.  J.  Marsh.  (Ky.)  258;  Wick- 
liff  v.  Clay,  1  Dana  (Ky.),  535;  Taylor  v.  Porter,  1  Dana  (Ky.),  421,  25  Am. 
Dec.  155;  Williams  v.  Rogers,  2  Dana  (Ky.),  374;  Buchanan  v.  Lorman,  3 
Gill  (Md.),  51;  Outlaw  v.  Morris,  7  Humph.  (Tenn.)  262;  Patrick  v. 
Roach,  21  Tex.  261,  27  Tex.  579;  Littlefield  v.  Tinsley,  26  Tex.  353,  359;  Ten- 
nell  v.  Dewitt,  20  Tex.  256;  Fitzhugh  v.  Land  Company,  81  Tex.  306,  16 
S.  W.  Rep.  1078.  In  Tennell  v.  Roberts,  2  J.  J.  Marsh.  (Ky.)  577,  a  court  of 
equity  on  rescinding  a  contract  for  the  sale  of  lands  refused  to  decree  in 
fayor  of  the  vendor  for  rents  and  profits  on  the  ground  that  he  had  been 
guilty  of  fraud  respecting  the  title,  and  further,  that  the  real  owner  was 
proceeding  in  ejectment  against  the  purchaser.  As  to  the  right  of  the  vendor 
to  set  off  the  rents  and  profits  against  the  purchaser's  claim  for  damages, 
see  ante,  §  95. 

"2  Warv.  Vend.  885.     Doggett  v.  Emerson,  1  Woodb.  &  M.    (U.  S.)    195, 


760  MARKETABLE    TITLE    TO    REAL    ESTATE. 

where  the  vendor  fraudulently  concealed  a  defect  in  his  title  he 
has  been  allowed  the  value  of  the  rents  and  profits  enjoyed  by  the 
purchaser.53  But  it  has  been  held  that  he  will  not  be  entitled  to 
an  account  of  the  rents  and  profits  where  by  his  fraudulent  eon- 
duct  the  purchaser  has  been  induced  to  remain  in  possession  a  long; 
time  in  expectation  that  a  good  title  will  be  made.53  Xor  where 
the  purchaser,  not  yet  having  surrendered  possession  of  the  prem- 
ises, will  probably  be  compelled  to  account  to  the  true  owner  for 
the  mesne  profits,  or  is  entitled  to  retain  them  as  a  security  for  the 
return  of  the  purchase  money  paid  by  him.54  In  England  it  is 
said  to  be  tisual  and  proper  to  specify  in  every  case  the  day  on 
which  the  purchase  is  to  be  completed,  when  the  purchaser  is  to 
have  possession,  and  when  he  is  to  receive  the  rents  and  profits  and 
pay  interest  on  the  purchase  money.55  The  purchaser  cannot, 
however,  in  equity  avail  himself  of  a  breach  of  these  conditions 
unless  time  be  of  the  essence  of  the  contract,66 

It  is  not  necessary  that  a  purchaser,  seeking  a  decree  rescind- 

204.  Shields  v.  Bogliolo,  7  Mo.  134,  where  it  was  said  that  if  the  land  were 
wild  and  wholly  unproductive  the  rule  that  the  use  of  the  money  and  the  use 
of  th»  land  are  equivalent  would  not  apply.  A  head  note  to  the  ease  of 
Williams  v.  Wilson.  4  Dana  (Ky.),  507.  fairly  digests  the  opinion  of  the 
roiirt  as  follow*:  "There  never  has  been  any  universal  rule  for  adjusting  and 
•etting  ofT  rents  against  interest  upon  the  reseission  of  a  sale  of  land.  As 
eases  vary,  the  equity  of  allowing  rents  and  interest  on  the  purchase  monev 
nrutft  vary  —  the  object,  being  in  every  ease  to  plaee  the  parties  as  nearly  as 
possible  m  slatti  I/MO."  In  the  absence  of  evidenee  to  the  contrary,  the  use 
of  the  premises  and  interest  on  the  purchase  money  will  be  held  to  balance 
each  other.  Talbot  v.  Srbree,  1  Dana  (Ky.),  56. 

••Bryant  v.  Booth,  30  Ala,  311,  68  Am.  Dec.  117,  which,  however,  was  a 
ca*e  in  which  the  contract  had  l>cen  executed.  Richardson  v.  McKinson.  Litt. 
Sel.  las.  (Ky.)  320,  12  Am.  Dee.  308;  Peebles  v.  Stephens,  3  Bibb.  (Ky.). 
324.  6  Am.  Dec.  (MM).  The  same  rule  has  been  applied  where  the  contract 
wa*  rescinded  on  the  ground  that  the  vendor  had  fraudulently  represented 
the  quality  of  the  land.  Thompson  v.  Lee,  31  Ala.  202.  In  Walker  v.  Ogden, 
1  Dana  (Ky.),  247,  the  purchaser  had  bouglit  in  a  paramount  title  to  the 
premise*,  and  a  bill  by  the  vendors  for  an  account  of  the  rents  and  profit1* 
wa«  d  Utilised  on  the  ground  that  the  question  of  title  being  undetermined 
the  remedy  of  the  plaint  iff  was  at  law  by  action  of  ejectment. 

"Seanmre  v.  Marian.  3  Dnna   (Ky.),  410. 

"McLaren  v.  Irvin.  (13  Oa.  275. 

"Dart  V.  &  P.   (5th  ed.)    127. 

"I«l.  417. 


OF  THE  SUIT  FOR  RESCISSION  PROPER.  761 

ing  the  contract  when  the  title  has  failed,  shall  have  previously 
tendered  the  reasonable  value  of  the  use  and  occupation  of  the 
premises ;  the  vendor's  demand  in  that  respect  can  be  adjusted  in 
the  action.57  If  the  contract  be  rescinded  at  the  suit  of  the  pur- 
chaser, for  want  of  title  in  the  vendor,  and  no  provision  be  made 
for  redelivery  of  the  land  to  the  vendor,  he,  or  his  heirs,  may  main- 
tain a  bill  against  the  purchaser  for  an  account  of  the  rents  and 
profits.58  If  the  purchaser  committed  waste  while  in  the  occupa- 
tion of  the  premises,  the  damages,  thence  accruing  may  be  set  off 
against  his  claim  for  purchase  money,  interest  and  improvements.59 
But  he  cannot  be  charged  with  ordinary  deterioration  or  wear  and 
tear  of  the  premises.60  We  have  seen  that  if  the  purchaser  elect 
to  keep  the  premises  notwithstanding  the  defective  title,  and  to 
maintain  an  action  to  recover  damages  for  breach  of  the  contract 
to  make  a  good  title,  thereby  affirming  the  contract,  he  will  not  be 
accountable  to  the  vendor  for  the  mesne  profits.61 

It  has  been  held  that  the  purchaser  can  only  be  charged  with  the 
profits  actually  received,  and  that  the  question  how  much  the 

"Dotson  v.  Bailey,  76  Ind.  434. 

58  Officer  v.  Murphy,  8  Yerg.  (Tenn.)  502.  In  this  case  the  purchaser, 
after  obtaining  a  decree  rescinding  the  .contract,  and'  enjoining  the  collection 
of  the  purchase  money,  remained  in  possession  a  number  of  years. 

59Wickliffe  v.  Clay,  1  Dana  (Ky. ),  585,  where  the  purchaser  removed  a 
building  from  the  premises.  This  building  was  an  improvement  made  by  the 
vendor,  for  which  he  would  have  been  entitled  to  recover  against  the  real 
owner.  Buchanan  v.  Lorman,  3  Gill  (Md.),  51;  Bitzer  v.  Orban,  88  111.  130. 

60 Williams  v.  Rogers,  2  Dana  (Ky.),  374;  Buchanan  v.  Lorman,  3  Gill 
(Md.),  51. 

01  Ante,  §  95.  Greene  v.  Allen,  32  Ala.  221,  where  it  was  said:  "We  have 
some  decisions  which  hold  that  where  a  purchaser  proceeds  in  equity  for  a 
rescission  of  a  contract  for  a  sale  of  land  on  account  of  defective  title,  he 
must  account  for  rents  and  profits  if  any  have  accrued  to  him.  See  Walton 
v.  Bonham,  24  Ala.  513;  Young  v.  Harris,  2  Ala.  108,  114;  Williams  v. 
Mitchell,  30  Ala.  299.  But  we  know  of  no  case  in  which  this  doctrine  has 
been  applied  to  a  suit  at  law  on  a  bond  for  title  where  the  breach  alleged  is 
the  failure  of  the  vendor's  title.  If  a  vendor  in  such  a  case  could  recoup, 
his  vendee  might  be  liable  to  a  double  recovery;  first,  to  his  vendor,  and, 
secondly,  to  the  true  owner  of  the  land.  Moreover,  such  recoupment  might 
operate  direct  pecuniary  benefit  to  a  fraudulent  vendor,  who  would  thus 
speculate  on  his  own  tortious  acts." 

96 


762  MARKETABLE    TITLE    TO    REAL    ESTATE. 

premises  would  have  been  worth  to  a  man  of  ordinary  industry 
and  diligence  is  irrelevant  and  immaterial.62  But  this  rule,  it  is 
npprehended,  will  not  relieve  the  purchaser  from  his  liability  to 
pay  a  fair  rent  for  the  premises  where  he  has  derived  benefits  from 
the  possession."  And  in  some  cases  the  right  of  the  vendor  to  an 
allowance  for  rents  and  profits  on  rescission  of  the  contract  has 
been  denied  altogether  on  the  ground  that  the  liability,  if  any, 
is  for  use  and  occupation;  that  an  action  for  iise  and  occupation 
cannot  be  supported,  unless  there  was  an  implied  contract  to  pay 
rent,  and  that  no  such  contract  on  the  part  of  the  purchaser  can  bo 
implied  from  his  mere  occupancy  of  the  premises.64  The  vendor 
may  always  provide  in  the  contract  that  in  case  of  an  inability  to 
make  title  the  purchaser  shall  pay  a  rent  for  the  property.65 

We  have  seen  that  at  law  a  purchaser  makes  improvements  on 
the  premises  at  his  own  risk.66  But  in  equity,  as  a  general  rule, 
wherever  the  vendor  would  receive  the  benefit  of  permanent  im- 
provements made  by  the  purchaser  he  must  account  for  them  either 
by  paying  the  value  of  them  to  the  purchaser,  or  by  allowing  them 
as  a  set-off  against  any  demands  which  he  may  have  against  the 

"Richardson  v.  McKinson,  Litt.  Sel.  Cao.  (Ky.)  320,  12  Am.  Dec.  SOS, 
reversing  the  judgment  below.  The  court  •said:  "An  estate  may  be  made 
mure  or  loss  productive,  according  to  the  skill  and  care  with  which  it  miy 
be  managed;  but  the  possessor  cannot  be  said  to  be  enriched  in  any  case 
beyond  the  actual  profits  he  has  received;  and  a  purchaser,  in  a  case  of  tliis 
»ort,  ought  not  to  be  responsible  for  more.  It  has  accordingly  l>een  held, 
where  a  purchaser  has  been  let  into  possession  and  the  purchase  cannot  be 
completed  on  account  of  defects  in  the  title,  that  he  is  not  bound  to  pay 
rents  beyond  the  actual  profits  he  has  made.  Sugden,  10." 

"  In  Murray  v.  Palmer,  2  Sch.  &  Lef.  474,  4SO,  on  rescission  of  an  executory 
contract  on  the  ground  of  fraud  in  the  purchaser  in  procuring  a  convey- 
ance from  a  woman  who  was  ignorant  of  her  rights,  the  purchaser  was  held 
liable  for  rent  which,  but  for  his  willful  default,  he  might  have  received  from 
the  premises. 

••  Ankeny  v.  Clark,  148  U.  S.  345.  No  question  as  to  interest  seems  to  have 
been  rained  in  this  case.  Bardsley's  Appeal,  10  Atl.  Rep.  39.  In  Kirkpatrick 
v.  Downing,  58  Mo.  32.  17  Am.  Rep.  078,  it  was  held  that  the  purchaser 
could  not  be  held  liable  as  a  tenant  for  rent,  eo  nomine,  but  that  he  was 
chargeable  to  the  extent  of  the  benefit  actually  derived  from  the  use  of  the 
land. 

•An  w««  done  in  Andrews  v.  Babcock  (Conn.),  26  Atl.  Rep.  715 

••Ante,  |  96. 


OF  THE  SUIT  FOK  RESCISSION   PliOPEK.  763 

purchaser.67  But  even  iu  equity  the  purchaser  will  not  be  entitled 
to  an  allowance  for  his  improvements  if  they  were  made  when  he 
knew  there  was  a  defect  in  the  title.68  Xor  where  he  participates 

67  2  Sugd.  (8th  Am.  ed.)  514  (747);  2  Story  Eq.  Jur.  1234;  King  v. 
Thompson,  9  Pet.  (U.  S.)  204;  Kirkpatrick  v.  Downing,  58.  Mo.  32,  17  Am. 
Rep.  678;  Martin  v.  Anderson,  7  Ga.  228;  Peebles  v.  Stephens,  3  Bibb  (Ky.), 
324;  6  Am,  Dec.  660;  Ewing  v.  Handley,  4  Litt.  (Ky.)  346,  371,  14  Am.  Dec. 
140;  Richardson  v.  McKinson,  Litt.  Sel.  Cas.  (Ky.)  320,  12  Am.  Dec.  308; 
Griffith  v.  Depew,  3  A.  K.  Marsh.  (Ky.)  177,  13  Am.  Dec.  141;  Morton  v. 
Ridgway,  3  J.  J.  Marsh.  (Ky.)  258;  Strike's  Case,  1  Bland  Ch.  (Md.)  57, 
77;  Lancoure  v.  Dupre  (Minn.),  55  N".  W.  Rep.  129,  which  was  a  case  in 
which  the  purchaser  rescinded  the  contract  and  abandoned  the  premises. 
Gilbert  v.  Peteler,  38  N.  Y.  165,  92  Am.  Dec.  785,  where  held,  also,  that  the 
purchaser's  claim  for  improvements  will  be  a  lien  on  the  premises  until  paid. 
Perkins  v.  Hadley,  4  Hayw.  (Tenn.)  148;  Smithson  v.  Inman,  2  Baxt. 
(Tenn.)  818;  Patrick  v.  Roach,  21  Tex.  251,  27  Tex.  579;  Erwin  v.  Myers, 
46  Pa.  St.  96.  See,  contra,  Wilhelm  v.  Fimple,  31  Iowa,  131,  7  Am.  Rep.  117. 
The  extraordinary  statement  is  made  in  this  case  that  a  purchaser  is  not 
entitled  to  an  allowance  for  his  improvements  where  he  sues  to  rescind  the 
contract,  but  that  he  would  be  if  he  sued  to  recover  damages  for  breach  of 
the  contract.  If  this  be  true,  the  purchaser  electing  to  affirm  the  contract, 
may  recover  damages  for  the  breach,  including  the  value  of  his  improvements, 
retain  possession  of  the  land,  and  by  getting  in  the  rights  of  the  adverse 
claimant,  practically  receive  compensation  for  his  improvements  without  hav- 
ing incurred  a  loss  on  their  account.  On  the  other  hand,  if  he  elected  to  rescind 
the  contract,  he  could  have  nothing  for  his  improvements;  their  entire  benefit 
would  pass  to  the  vendor  upon  a  return  of  the  premises  to  him;  or  he  (the 
vendor)  would  be  allowed  their  value  when  sued  in  ejectment  by  the  adverse 
claimant.  These  results  necessarily  follow  from  the  rule  that  upon  rescission 
of  the  contract  the  premises  must  be  restored  to  the  vendor,  and  that  tipon 
affirmance  of  the  contract  by  action  for  damages  the  purchaser  is  not  obliged 
to  surrender  the  possession.  The  only  case  cited  to  sustain  the  foregoing 
decision  was  that  of  Gillett  v.  Maynard,  5  Johns.  (N.  Y.)  85,  4  Am.  Dec. 
329,  which  was  a  suit  to  recover  back  the  purchase  money  and  value  of  im- 
provements, the  contract  being  void  because  not  in  writing,  and  the  vendor 
having  refused  to  perform.  See,  contra,  the  latter  case  Mason  v.  Swan,  6 
Heisk.  (Tenn.)  450;  Rhea  v.  Allison,  3  Head  (Tenn.),  176. 

48  2  Sugd.  Vend.  (8th  Am.  ed.)  515;  Scott  v.  Battle,  85  N.  C.  184,  SO  Am. 
Re>  694.  But  see  Ewing  v.  Handley,  4  Litt.  (Ky.)  371,  14  Am.  Dec.  140, 
where  the  purchaser  was  permitted  to  set  off  improvements  against  rent, 
though  made  when  he  knew  the  title  was  defective.  But  he  was  denied  an 
allowance  for  improvements  made  after  he  had  recovered  judgment  against 
the  vendor  in  an  action  for  breach  of  the  contract.  In  Witherspoon  v. 
McCalla,  3  Des.  (S.  C.)  245,  the  rule  stated  in  the  text  seems  to  have  been 
restricted  to  cases  in  which  the  defect  was  notorious,  and  the  purchaser,  buy- 
ing on  a  speculation,  had  been,  on  account  of  the  defect,  able  to  get  the 
property  much  below  its  real  value. 


7G4  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

in  a  fraudulent  intent  of  the  vendor  in  selling  the  property.6*  The 
vendor  will  of  course  be  entitled  to  set  off  against  the  improve- 
ments, the  fair  rental  value  of  the  land,70  without  the  improve- 
ments.71 If  the  purchaser  has  had  the  use  and  benefit  of  the  im- 
provements which  he  has  made,  he  will  be  entitled  only  to  their 
present  value,  and  not  their  value  at  the  time  they  were  made.72 
It  has  been  held  that  if  the  purchaser  recover  the  value  of  his 
improvements  against  ail  adverse  claimant,  he  must  refund  the 
amount  so  recovered  if  the  vendor  afterwards  establishes  his  title.'3 
The  right  of  the  purchaser  to  n  decree  for  interest  on  the  pur- 
chase money  paid  by  him  and  for  the  value  of  his  improvements, 
and  the  right  of  the  vendor  to  an  account  of  the  rents  and  profits, 
and  an  allowance  for  waste  beyond  ordinary  wear  and  tear,  ob- 
viously depend  in  a  great  measure  upon  the  circumstances  of  each 
particular  case,  and  cannot  be  made  the  subjects  of  unbending 
rules.  A  court  of  equity  will  be  chiefly  concerned  to  see  that  each 
party  i>  placed  as  nearly  as  possible  in  statu  quo,  without  regard 
to  arbitrarv  restrictions.74 

v 

§  2S1.  PLEADING.  In  some  cases  it  has  been  held  that  it  is 
incumbent  on  the  purchaser  seeking  to  rescind  an  executory  con- 
tract for  the  sale  of  lands,  to  aver  and  prove  facts  showing  that  the 
title  is  bad,  and  that  he  cannot  require  the  vendor  to  show  title.75 
It  is  tme  that  the  vendor  may  be  in  possession  of  many  facts 
respecting  the  title  which  it  would  be  exceedingly  difficult  for  the 
purchaser  to  ascertain,  such  as  the  happening  of  contingencies,  on 
which  the  validity  of  the  title  depends,  e.  g.f  the  death  of  life 
tenants,  or  the  births  of  persons  in  remainder,  and  other  facts  of 

•Strike's  Case,  1  Bland   (MdJ,  57. 

Taso*  c-ited  nupru  throughout  this  section.  Winters  v.  Elliott,  1  Lea 
(Tenn.),  070;  "Mason  v.  Lawinp.  10  Lea  (Tonn.),  204. 

11 1 41  mourn*  v.  Dupre  (Minn.),  f).r>  X.  W.  Hop.  120. 

™  William*  v.  Rogers,  2  Dana  (Ky. ),  374;  Sea  in  ore  v.  Harlan,  :\  Dan:i 
(Ky.),  411. 

'•Morton  v.  Ridjjvny,  3  .1.  .1.  Marsh.   (Ky.)    258. 

"  Little-field  v.  Tinaley,  20  Tex.  333.  358. 

'*  Sec  ante,  |  117,  as  to  burden  of  proof  in  act  inns  for  breach  of  covenant 
of  wlnin.  2  ttoh.  Pr.  100;  Riddpll  v.  Ulakr.  4  Cal.  264;  Thayer  v.  White.  3 
Cnl.  228;  Mo*»  v.  Davidson,  1  Sin.  &  M.  (Minn.)  112;  <; rant  land  v.  Wight, 
ft  Munf.  (Va.)  295.  In  both  these  ca«e«  the  contract  had  been  executed. 


OF  THE  SUIT  FOE  RESCISSION  PKOPEK.  765 

like  kind  which  cannot  be  discovered  by  examining  the  public 
records;  and  cases  might  occur  in  which  the  purchaser  would  be 
involved  in  great  hardship,  if  required  to  prove  facts  lying 
peculiarly  within  the  knowledge  of  the  vendor.  At  the  same  time 
it  is  clear  that  it  would  be  inequitable  to  permit  the  purchaser, 
when  tired  of  his  bargain,  to  come  into  a  court  of  equity,  and  upon 
the  bare  allegation  that  the  title  i.i  bad,  put  the  vendor  to  the  vexa- 
tion and  expense  of  proving  it  to  be  sufficient.  He  should,  at  least, 
be  required  to  point  out  the  defect  of  which  he  complains,  and  to 
prove  it  as  alleged.76  But  there  are  cases  which  decide  that  if  the 
vendor  sues  for  specific  performance,  as  a  general  rule  the  burden 
will  be  upon  him  to  show  that  he  has  such  a  title  as  the  purchaser 
can  be  required  to  take.77 

If  the  vendor  sue  for  specific  performance,  it  is  not  necessary 
that  the  purchaser's  objections  to  the  title  be  taken  in  his  answer ; 
they  may  be  made  at  any  time  before  the  hearing.78 

§  282.  PARTIES.  All  parties  in  interest  must,  of  course,  be 
made  parties  to  the  suit  for  rescission.79  An  assignee  of  one  of  the 
purchase-money  notes  has  been  held  a  necessary  party.80  So,  also, 

79  Ante,  §  244. 

"Griffin  v.  Cunningham,  19  Grat.  (Va.)  571;  Grantland  v.  Wight,  5  Munf. 
(Va.)  295;  Walsh  v.  Barton,  24  Ohio  St.  28;  Jarman  v.  Davis,  4  T.  B.  Mon. 
(Ky.)  115;  Daily  v.  Litchfield,  10  Mich.  38;  Dwight  v.  Cutler,  3  Mich.  566, 
64  Am.  Dec.  105;  Cornell  v.  Andrus,  36  X.  J.  Eq.  321;  Allen  v.  Adams,  162 
Iowa  300,  143  N.  W.  1092.  See  ante,  §  244.  It  is  suggested  with  diffidence, 
that  the  sufficiency  of  the  title  of  the  vendor  often  depends  upon  one  or 
more  questions  of  fact  alleged  upon  the  one  side  and  denied  upon  the  other, 
and  that  whenever  the  pleadings  have  reached  this  stage  in  any  suit  or  pro- 
ceeding in  which  the  sufficiency  of  the  title  is  involved,  it  would  seem  that  the 
hurden  of  proof  should  he  devolved  upon  him  who  has  the  affirmative  of  the 
issue,  whether  vendor  or  purchaser,  unless  the  fact  is  of  a  kind  lying 
peculiarly  within  the  knowledge  of  the  party  having  the  negative.  The 
parties  should  so  plead  that  it  may  be  determined  whether  the  title  depends 
upon  a  question  of  law  or  a  question  of  fact;  so  that,  in  the  latter  event,  they 
may  arrive  at  an  issue,  and  the  burden  of  proof  be  intelligently  and  not 
arbitrarily  disposed. 

78  Park  v.  Johnson,  7  Allen  (Mass.),  378.  In  Harding  v.  Olsen,  177  111. 
298,  52  N".  E.  Rep.  482,  it  was  said  that  the  only  necessary  party  to  the  bill 
is  the  party  against  whom  the  decree  for  repayment  will  operate. 

"Cummins  v.  Boyle,  1  J.  J.  Marsh.   (Ky.)   480. 

60 Pollock  v.  Wilson,  3  Dana  (Ky.)  25. 


766  MARKETABLE    TITLE    TO    REAL    ESTATE. 

one  who  had  purchased  from  the  complainant.81  If  the  purchaser 
should  die  ponding  the  suit,  his  heirs  must  be  made  parties.  By  a 
rescission  their  interests  would  be  directly  affected,  and  to  author- 
ize a  decree  it  is  indispensable  that  they  should  be  before  the 
court.81 

"Yoder  v.  Swearinpen.  0  J.  .1.  Marsh.   (Ky.)  518. 
"Huston  v.  Noble,  4  J.  J.  Marsh.  (Ky.)   130. 


CHAPTER  XXXI. 

OF  DOUBTFUL  TITLES. 

GENERAL  RULES.     §   283. 

CLASSIFICATION  OF  CASES  OF  DOUBTFUL  TITLES.     §   284. 

CASES    IN    WHICH    THE    TITLE    WILL   BE    HELD    FREE    FROM 

DOUBT.     §   285. 

DOUBTFUL  TITLES  AT  LAW.      §  286. 

INCONCLUSIVENESS  OF  JUDGMENT  OR  DECREE.     §  287. 
SPECIAL  AGREEMENTS  AS  TO  THE  TITLE.     §   288. 
PAROL  EVIDENCE  TO  REMOVE  DOUBTS.      §   289. 
EQUITABLE  TITLE.     ADVERSE  CLAIMS.     §  290. 
DEFEASIBLE  ESTATES.     §   291. 

TITLE  AS  DEPENDENT  UPON  ADVERSE  POSSESSION.     §   292. 
PRESUMPTIONS  FROM  LAPSE  OF  TIME.     §   293. 
TITLE  AS  AFFECTED  BY   NOTICE.     §   294. 
BURDEN  OF  PROOF.     §   295. 
ILLUSTRATIONS  OF  THE  FOREGOING  PRINCIPLES.     §   296. 

Errors  and  irregularities  in  judicial  proceedings.     §  297. 

Sale  of  the  estates  of  persons  under  disabilities.     §  298. 

Want  of  parties  to  suits.      §  299. 

Defective  conveyances  and  acknowledgments.     Imperfect  registra- 
tion.    §   300. 

Construction  of  deeds  and  wills.     §   301. 

Competency  of  parties  to  deeds.     §   302. 

Title  as  dependent  upon  intestacy.     Debts  of  decedent.     §   303. 
INCUMBRANCES.     §   304. 

Admitted  incumbrances.     §   305. 

Incumbrances  •which  make  the  title  doubtful.     §   306. 

Apparently  unsatisfied  incumbrances.     §   307- 
ENCROACHMENTS  AND  DEFICIENCIES.     §§   307-a,  307-b. 

§  283.  GENERAL  RULES.  Unless  the  contract  contains  a  stipu- 
lation to  the  contrary,  there  is  always  an  implied  agreement  that 
the  title  offered  by  the  vendor  shall  be  marketable,1  and  that  it 

,  *  Scudder  v.  Watt,  90  N.  Y.  Supp.  605 ;  98  App.  Div.  40 ;  Brady  v.  Bank  of 
Com.,  41  Okl.  473,  138  Pac.  1020.  Obviously,  a  marketable  or  merchantable 
title  is  one  to  which  no  objection  of  a  kind  that  would  interfere  with  a  sale 
of  the  property  can  be  raised;  for  this  is  implied  in  the  term  itself.  But 
there  is  no  implied  agreement  that  the  title  shall  be  satisfactory  to  the  pur- 
chaser or  his  attorney.  Green  v.  Ditsch,  143  'Mo.  1;  44  S.  W.  Rep.  749. 

[767] 


768  MARKETABLE    TITLE    TO    REAL    ESTATE. 

shall  be  fairly  deducible  of  record.4  A  purchaser  of  lands  can 
never  be  required  to  accept  a  doubtful  or  unmarketable  title,* 
even  though  the  fullest  indemnity  be  offered  by  way  of  a 
general  warranty  from  a  solvent  vendor.4  Specific  performance  is 
a  matter  of  grace  and  not  of  right,  and  will  never  be  decreed  when 
the  title  is  open  to  reasonable  doubt.6  All  titles  absolutely  bad  are, 
of  course,  unmarketable,  but  the  expression  "marketable  title" 
as  originally  employed  by  courts  of  equity,  was  not  the  equivalent 
of  "  good  title  "  or  "  perfect  title/'  nor  the  opposite  of  "  bad  title  " 
or  "  defective  title,"  but  was  technical  in  its  character,  and  meant 
a  title  concerning  which  there  were  no  fair  and  reasonable  doubts; 
such  a  title  as  a  court  of  equity  would  compel  a  purchaser  to  ac- 
cept on  a  bill  by  the  vendor  for  specific  performance.6  It  is  pos- 
sible that  a  perfect  title  may  be  unmarketable ; 7  for  example, 
suppose  the  validity  of  A's  title  depends  upon  the  question  whether 
or  not  he  is  the  next  of  kin  to  B.  If  he  is  indeed  the  next  of  kin 
his  title  is  perfect.  But  if  it  cannot  appear  to  the  court  beyond 

•Ante,  §  6. 

•Dart.  Vend.  734;  Sugd.  Vend.  (8th  Am.  ed.)  577  (386)  ;  2  Warvelle  Vend. 
843:  Adams  Eq.,  m.  p.  84;  Story's  Eq.  Jur.  693;  Pomeroy's  Eq.  Jur.  §  1405. 
Beach  M«*l.  Eq.  Jur.,  §  607;  Bispham  Eq.  Jur.,  §  378;  Atkinson  Marketable 
Title,  ch.  1 ;  Diamond  State  Iron  Co.  v.  Husbands,  8  Del.  Ch.  205,  68  All.  240. 

«Batchelder  v.  Macon,  67  N.  C.  181. 

•Mitchell  v.  Stinemetz,  97  Pa.  St.  253;  Maltby  v.  Thewg,  171  111.  264;  49 
N.  E.  Rep.  486;  Wesley  v.  Eells,  177  U.  S.  370;  Dyker  M.  L.  &  I.  Co.  v. 
Cook,  159  N.  Y.  6;  53  N.  E.  Rep.  690;  Sherman  v.  Beam,  27  S.  D.  218;  130 
N.  W.  442. 

•Adams  Eq.,  m.  p.  84;  Beach  Mod.  Eq.  Jur.  §  606.  Stapylton  v.  Scott,  16 
Ve*.  272;  Jervoise  v.  Duke  of  Northumberland,  1  J.  &  W.  539.  If.  after  the 
vendor  has  produced  all  the  proof  he  cnn,  a  reasonable  doubt  still  remains, 
the  title  is  not  marketable,  and  the  purchaser  is  not  obliged  to  take  it. 
Shrit'er  v.  Shriver,  86  X.  Y.  575.  The  rule  in  New  Jersey  has  been  declared 
to  be  that  the  purchaser  will  not  be  required  to  t»ke  a  title  which  is  reason- 
ably doubtful  even  though  at  law  the  title  might  be  declared  to  be  good.  Van 
Riper  v.  Wickersham,  76  N.  J.  Eq.  232;  76  Atl.  1020,  Ann.  Cas.  1912  A.  319. 

'Reynold*  v.  Strong,  82  Hun  (N.  Y.),  202;  91  N.  Y.  8«pp.  329,  where  it 
was  said  that  a  title  may  bo  valid,  and  yet  not  marketable.  A  material 
defect  in  the  title  to  land  is  such  a  defect  as  will  cause  a  reasonable  doubt 
and  just  apprehension  in  the  mind  of  a  reasonable,  prudent  and  intelligent 
person,  acting  upon  competent  legal  advice,  and  prompt  him  to  refuse  to  take 
the  land  at  a  fair  value.  Eggers  v.  Busch,  154  111.  604;  39  N.  E.  Rep.  619. 


OF    DOUBTFUL    TITLES.  769 

a  reasonable  doubt  that  he  is  such,  then  the  title,  though  really 
good  if  all  the  facts  could  be  known,  will  be  deemed  unmarketable.8 
This  doctrine  of  "marketable  titles"  was  originally  cognizable 
only  in  the  courts  of  equity,  but  in  several  of  the  American  States 
in  which  the  distinction  between  legal  and  equitable  procedure  has 
been  abolished,  the  same  doctrine  has  been  applied  in  courts  of 
law,  e.  g.,  in  actions  to  recover  back  the  purchase  money.  To  this 
fact  is  probably  due  the  tendency  of  the  courts  in  those  States  to 
apply  the  term  "unmarketable"  to  such  titles  as  are  absolutely 
bad,  as  well  as  those  which  are  merely  doubtful. 

It  is  impossible  in  the  nature  of  things  that  there  should  be  a 
mathematical  certainty  of  a  good  title.9  Such  a  thing  as  absolute 
security  in  the  purchase  of  real  estate  is  unknown.10  But  a  bare 
possibility  that  a  title  may  be  affected  from  certain  causes,  when 
the  highest  possible  evidence  of  which  the  nature  of  the  case 
admits,  amounting  to  a  moral  certainty,  is  given  that  no  such  cause 
exists,  does  not  render  the  title  doubtful.11  The  purchaser  cannot 
demand  a  title  absolutely  free  from  all  suspicion  or  possible  de- 
fect ; 12  nor  that  he  be  guaranteed  against  any  trouble  on  account 
of  the  title.13  He  can  simply  require  a  title  such  as  prudent  men, 
well  advised  as  to  the  facts  and  their  legal  bearings,  would  be 
willing  to  accept.  The  doubts  must  be  such  as  will  affect  the 

'Post,  this  ch.  §  289.  It  is  possible  that  facts  not  appearing  upon  the 
records  may  overthrow  a  title  apparently  good,  but  in  such  a  case  it  devolves 
on  the  purchaser  to  point  out  the  defect.  Hillyard  v.  Banchor,  85  Kan.  516; 
118  Pac.  65. 

9  Language  of  Lord  HABDWICKE  in  Lyddall  v.  Weston,  2  Atk.  20.  First 
African  Soc.  v.  Brown,  147  Mass.  196,  298;  17  N.  E.  Rep.  549. 

10Rawle  Covts.  for  Title  (5th  ed.),  259. 

"Moser  v.  Cochran,  107  N.  Y.  35;  13  N.  E.  Rep.  442;  Schermerhorn  v. 
Niblo,  2  Bosw.  (N.  Y.)  161;  Hedderley  v.  Johnson,  42  Minn.  443;  44  N.  W. 
Rep.  527;  Webb  v.  Chisolm,  24  S.  C.  487;  Grasser  v.  Blank,  110  La.  493; 
34  So.  Rep.  648 ;  Tripp  v.  Sieler,  38,  S.  D.  3211 ;  161  N.  W.  337 ;  Keneflck  v. 
Shumaker,  64  Ind.  App.  552;  116  N.  E.  319. 

12  Todd  v.  Union  Dime  Sav.  Inst.,  128  N.  Y.  636;  28  N.  E.  Rep.  504;  Jackson 
v.  Creek,  47  Ind.  App.  541;  94  N.  E.  416;  Milton  v.  Crawford,  65  Wash. 
145;  118  Pac.  32. 

"Close  v.  Martin,  208  Mass.  236 j  94  N.  E.  388. 

97 


770  MARKETABLE    TITLE    TO     REAL    ESTATE. 

market  value  of  the  estate.14  They  must  not  be  made  up  for  the 
occasion,  based  on  captious,  frivolous  and  astute  niceties;  they 
must  be  such  as  would  induce  a  prudent  man  to  hesitate  in  accept- 
ing a  title  affected  by  them.15  What  matters  of  law  or  what  mat- 
ters of  fact  are  sufficient  to  make  a  title  so  doubtful  as  to  be  un- 
marketable, cannot  be  indicated  by  positive  rules.  Facts  or  ques- 
tions which  present  no  difficulties  to  one  judicial  mind  may,  in  the 
opinion  of  another,  raise  insuperable  objections  to  the  title.16 
It  is  obvious  that  the  existence  of  a  "  fair  and  reasonable  doubt " 
as  to  the  title  must  depend  upon  the  capacities  of  the  judge  to 
whom  the  question  is  addressed.  "  Practically  the  judge  acts 
upon  his  own  doubts."17  It  has  been  said  that  the  title  which  a 
purchaser  will  be  required  to  take  should  be,  like  Caesar's  wife, 
free  from  suspicion,  but  that  the  purchaser  will  not  be  relieved 
on  account  of  possibilities  of  defects,  or  mere  suspicions  of  faults 
ending  only  in  suspicion.18  The  doubt  must  be  "  grave  and  reason- 

"Vreeland  v.  Blauvelt,  23  N.  J.  Eq.  485.  A  marketable  title  is  one  that 
will  bring  as  high  a  price  in  the  market  with  the  purchaser's  objection  to  its 
sufficiency  as  without.  Pannly  v.  Head,  33  111.  App.  134. 

"Nicol  v.  Carr,  35  Pa.  St.  38;  Kimball  v.  Tooke,  70  111.  553;  Summy  v. 
Ramsey,  53  Wash.  93;  101  Pac.  506. 

l*Atk.  Marketable  Title  (Law  Lib.),  ch.  1 ;  1  Sugd.  Vend.  (8th  Am.  ed.) 
579  (387). 

"  Sedgwick  v.  Hargrave,  2  Ves.  59. 

"Gordon  v.  Champneys,  Turn.  &  Russ.  88;  Laurens  v.  Lucas,  6  Rich. 
(8.  C.)  Eq.  217;  Monagan  v.  Small,  6  Rich.  N.  S.  (S.  C.)  177;  Carroll  v. 
McKahary,  55  X.  Y.  Supp.  113;  35  App.  Div.  528.  While  the  court  will  give 
the  purchaser  reasonable  assurance  of  security,  it  will  not  countenance  the 
idle  scruples  of  one  interested  in  withholding  the  purchase  money.  Brown  v. 
Witter.  10  Ohio,  143.  The  doubts  about  the  title  mu«t  be  such  as  would 
probably  interfere  with  a  resale  of  the  premises  by  the  purchaser.  Billick 
v.  Davenport,  164  Irnva,  10f>;  145  K.  W.  470;  Horowitz  v.  Mendel  R.  E.  Co., 
145  Ga.  8<J6;  90  S.  E.  57.  The  title  should  be  such  as  not  only  to  enable  the 
purchaser  to  hold  the  land,  but  to  sell  it  without  difficulty  if  he  desires. 
Lindsey  v.  Hambrecht,  162  Fed.  548.  If  the  alleged  outstanding  right  is  a 
very  improbable  or  remote  contingency,  which,  according  to  experience,  has 
no  probable  basis,  the  court  may  in  the  exorcise  of  a  sound  discretion,  compel 
the  purchaser  to  take  the  title.  Cambrclleng  v.  Purton,  125  X.  Y.  610;  26 
X.  E.  907;  Ferry  v.  Sampson,  112  X.  Y.  415;  20  N.  E.  387;  Bardes  v.  Herman, 
129  X.  Y.  Supp.  723;  144  App.  Div.  772.  To  be  marketable,  a  title  need  not 
be  absolutely  free  from  any  possible  suspicion  of  defect.  Hagan  v.  Drucker, 
8«  N.  Y.  Supp.  601;  90  App.  Div.  28;  Johnston  v.  Garvey,  124  N.  Y.  Supp. 
278;  130  App.  Div.  660. 


OF    DOUBTFUL,    TITLES.  771 

able."19  If  there  is  such  doubt  as  to  make  it  probable  that  the 
purchaser's  right  may  become  a  matter  of  investigation,  he  will 
not  be  compelled  to  complete  the  purchase.20  If  the  doubt  arise 
upon  a  question  of  fact  of  such  nature  as  not  to  admit  of  proof, 
such  as  a  statement  that  a  certain  act,  which  would  make  void  the 
vendor's  title,  had  not  been  committed ; 21  or,  if  a  defect  appear 
and  the  title  depends  upon  facts  removing  it,  which  facts  the  pur- 
chaser can  only  establish  by  parol  testimony  should  his  title  be 
afterwards  attacked,22  the  purchaser  will  be  relieved.  An  often- 
cited  English  case  establishes  the  rule  that  a  title  is  doubtful  when 
it  is  such  as  other  persons  may  question,  though  the  court  regards 
it  favorably,  and  that  if  the  doubt  arise  upon  a  question  connected 
with  the  general  law,  the  court  is  to  judge  whether  the  law  is 
settled;  if  not  settled,  or  if  extrinsic  circumstances  affecting  the 
title,  appear,  which  neither  the  court  nor  the  purchaser  can  satis- 
factorily investigate,  the  purchaser  will  be  relieved.23 

The  defect  of  title  of  which  the  purchaser  complains  must  be 
of  a  substantial  character ;  one  from  which  he  may  suffer  injury. 
Mere  immaterial  defects  which  do  not  diminish  in  quantity,  qual- 
ity, or  value  the  property  contracted  for,  constitute  no  ground  upon 
which  he  may  reject  the  title.24  Facts  must  be  known  at  the  time 
which  fairly  raise  a  reasonable  doubt  as  to  the  title;  a  mere  pos- 
sibility or  conjecture  that  such  a  state  of  facts  may  be  developed 
at  some  future  time  is  not  sufficient.25 

The  purchaser  is  entitled  to  rescind  the  contract  where  the  title 
is  doubtful,  as  well  as  where  it  is  absolutely  bad,  but  it  has  been 
frequently  said  that  equity  will,  in  many  cases,  deny  the  vendor's 
application  for  specific  performance,  when  it  would  not  entertain  a 
bill  by  the  purchaser  to  rescind,  in  other  words,  that  it  requires  a 

19  Moore  v.  Appleby,  108.  N.  Y.  237 ;  15  N.  E.  Rep.  377 ;  1  Coll.  102 ;  Dobson 
v.  Zimmerman,  55  Tex.  Civ.  App.  394;   118  S.  W.  236. 

20  Per  TINDAL,  C.  J.,  in  Curling  v.  Shuttleworth,  6  Taunt.  121. 

21  1  Sugd.  Vend.   (8th  Am.  ed.)   609.     Lowe  v.  Lush,  14  Ves.  Jr.  547. 
"Moore  v.  Williams,  115  N.  Y.  586;  22  K  E.  Rep.  233. 

23Pyrke  v.  Waddingham,  17  Eng.  L.  &  Eq.  534;  10  Hare,  1;  Reynolds  v. 
White,  128  N,  Y.  Supp.  529 ;  143  App.  Div.  595. 

"Riggs  v.  Pursell,  66  X.  Y.  193;  Mead  v.  Martens,  47  N.  Y.  Supp.  299; 
21  App.  Div.  134. 

"Gates  v.  Parmly,  93  Wis.  294;  «6  N.  W.  253;  67  N.  W.  739. 


772  MARKETABLE    TITLE    TO    REAL    ESTATE. 

stronger  case  to  induce  a  chancellor  to  rescind  a  contract,  than  to 
withhold  his  assistance  in  causing  it  to  be  executed.26  This  is 
doubtless  true  as  to  contracts  which  have  been  partly  executed,  as 
by  payment  of  the  purchase  money  on  the  one  part,  and  delivery 
of  possession  on  the  other,  because  in  such  cases  more  or  lees  diffi- 
culty will  always  be  encountered  in  placing  the  parties  in  stalu 
quo.  But  where  neither  party  has  taken  any  step  towards  per- 
formance, no  reason  is  perceived  why  the  same  want  of  doubtful- 
ness of  title  in  the  vendor  which  takes  away  his  right  to  specific 
performance,  would  not  sustain  the  purchaser's  bill  for  rescission." 
The  doubt  whether  a  title  is  or  is  not  such  as  a  purchaser  can  be 
required  to  take,  depends,  sometimes,  upon  a  question  of  law, 
sometimes  upon  a  question  of  fact,  and  sometimes  upon  both.28 
If  the  doubt  that  is  raised  depends  upon  the  application  of  general 
principles  of  law,  the  court  will,  ordinarily,  decide  it  in  any  pro- 
ceeding in  which  the  sufficiency  of  the  title  offered  by  the  vendor 
is  involved."  In  theory  the  court  must  know  whether  the  title 
is  good  or  bad,  if  all  the  facts  respecting  it  are  known  and  undis- 
puted, for  the  court  is  presumed  to  know  the  law  applicable  to 
those  facts.80  But  no  court  can  be  certain  that,  upon  a  doubtful 

"Dart  Vend.  (5th  ed.)  734;  Story  Eq.  Jur.  J§  206.  603;  Cans  v.  Renshaw, 
2  Pa.  St.  34;  44  Am.  Dec.  152.  Doubts  as  to  the  title  may  be  sufficient  to 
justify  the  court  in  refusing  to  compel  specific  performance  by  the  purchaser, 
yet  insufficient  to  sustain  an  application  by  the  purchaser  for  rescission, 
especially  if  he  h  in  undisturbed  possession  of  the  premises.  Duvall  v. 
Parker.  2  Duv.  (Ky.)  182. 

"The  question,  if  any,  is  of  little  practical  moment,  except  in  cases  where 
the  contract  has  been  partly  performed,  for  the  purchaser  accomplishes,  as  a 
general  rule,  all  that  he  desires  by  abandoning  the  contract  and  resisting  the 
vendor's  demand  for  specific  performance. 

"1  Rugd.  Vend.  (8th  Am.  ed.)  580:  2  Beach  Mod.  Eq.  Jur.  {  608. 

•Wilson  v.  Vogel,  8?  X.  J.  Eq.  584;  101  Atl.  173;  89  N.  J.  Eq.  598;  103 
Atl.  1068. 

"If  the  court  is  fully  informed  of  the  facts,  it  must  know  whether  the 
title  is  good  or  bad.  If  the  facts  are  not  fully  disclosed,  it  may  with  pro- 
priety doubt.  O'Reilly  v.  King,  28  How.  Pr.  (N\  Y.)  408;  Matthews  v. 
I.ightner,  85  Minn.  333;  88  N.  W.  992;  89  Am.  St.  Rep.  95S;  Kuchan  v.  I*nd 
Co.,  180  Iowa,  911;  164  N.  W.  119;  Ann.  Cas.  1918  A.  84.  In  a  case  in 
which  the  doubt  turned  upon  the  application  of  the  law  of  a  foreign  country, 
the  title  was  held  unmarketable.  Flood  v.  Von  Marcard,  102  Wash.  140; 
172  Pac.  884. 


OF    DOUBTFUL,    TITLES. 


773 


question  of  law,  e.  g.,  whether  a  certain  limitation,  after  a  life 
estate,  was  a  contingent  remainder  or  an  executory  devise,31 
another  court  of  co-ordinate  jurisdiction  in  which  the  purchaser's 
title  may  be  attacked,  will  pronounce  the  same  judgment.  If  it 
be  necessary  to  declare  a  particular  statute  unconstitutional  before 
the  vendor's  title  can  be  held  good,  the  purchaser  cannot  be  re- 
quired to  take  the  title.32 

It  is  not  customary  to  examine  the  title  of  a  lessor,  and  no  other 
covenant  for  title  from  him  can  be  required  than  that  the  lessee 
shall  quietly  enjoy  the  estate.33  Hence,  it  is  not  customary  to  raise 
the  objection  that  the  title  of  the  lessor  is  merely  doubtful  or 
unmarketable,  though  it  has  been  held  that  the  title  to  a  ground 
rent  may  be  rejected,  if  the  title  to  the  land  out  of  which  the  rent 
issued  is  unmarketable.34  But  a  purchaser  of  a  leasehold  estate 
may  compel  the  seller  to  produce  the  lessor's  title,  and  may  reject 
it  if  it  proves  to  be  bad,  unless  he  purchased  wiith  notice  of  the 
defect.35 

Whether  or  not  a  title  is  marketable  is  a  question  of  law  for  the 
court  and  not  for  the  jury.  The  jury  must  find  the  facts,  and  the 
court  determine  their  effect.36  The  opinions  of  conveyancing  coun- 
sel, or  lawyers  in  general,  will  not  be  received  upon  the  question 
whether  a  certain  title  is  or  is  not  marketable.37  But  a  judgment 
will  not  be  reversed  because  of  the  admission  of  such  testimony 

"Roake  v.  Kidd,  5  Ves.  €47. 

32 Daniel  v.  Shaw,  116  Mass.  582;  44  N.  E.  Rep.  791. 

*3Rawle  Covts.  for  Title  (5th  ed.),  §  20,  par.  5. 

34  Mitchell  v.  Stinemetz,  97  Pa.  St.  251. 

K  1  Sugd.  Vend.   (8th  Am.  ed.)   554   (368).     Purvis  v.  Rayer,  9  Pri.  488. 

s"Parmly  v.  Head,  33  111.  App.  134;  17  Wash.  Law  Rep.  332;  Moser  V. 
Tucker,  (Tex.  Civ.  App.)  195;  S.  W.  269. 

17  Post,  §  295a.  Evans  v.  Gerry,  17£I11.  595;  51  K  E.  Rep.  615;  Moser  v. 
Cochrane,  107  N".  Y.  35;  13  N.  E.  Rep.  442;  Montgomery  v.  Pac.  L.  Co. 
Bureau,  94  Cal.  284;  29  Pac.  Rep.  640;  Winter  v.  Stock,  29  Cal.  413;  89 
Am.  Dec.  57;  Reed  v.  Sefton,  H  Cal.  App.  88;  103  Pac.  1095;  Cunningham 
V.^Friendly,  70  Oreg.  222;  139  Pac.  928;  Mead  v.  Atgeld,  33  111.  App.  373; 
S.  C.  on  app.,  26  N.  E.  Rep.  388;  Leahy  v.  Hair,  33  111.  App.  461;  Atkinson  v. 
Taylor,  34  Mb.  App.  442;  Murray  v.  Ellis,  112  Pa.  St.  485;  3  Atl.  Rep.  845; 
Dalzell  v.  Crawford,  1  Pars.  Sel.  Cas.  (Pa.)  37.  But  see  Adams  Eq.  198,  and 
Hymers  v.  Branch,  6  Mo.  App.  511,  where  it  was  held  that  if  the  opinion  of 
the  court  regarding  a  title  might  be  fairly  questioned  by  competent  persons, 
the  title  must  be  considered  doubtful. 


774  MAKKETABLE    TITLE    TO    KEAL    ESTATE. 

when  it  appears  that  the  entire  title  upon  which  such  witm — ' 
opinion  was  founded,  was  before  the  court.38  If  a  purchaser  sues 
to  recover  damages  against  his  vendor  for  breach  of  the  contract, 
it  is  not  enough  to  show  that  the  title  has  been  deemed  insufficient 
by  conveyancers;  he  must  prove  the  title  to  be  bad.39  He  is  not 
exonerated,  in  refusing  to  perform  the  contract,  by  the  advice  of 
competent  counsel  that  the  title  is  doubtful,  if  it  be  in  fact  good. 
He  takes  the  risk  of  the  soundness  of  the  advice  given.40  As  a 
general  rule  the  vendor  may  remove  doubts  about  the  title  at  any 
time  before  decree,  unless  time  is  of  the  essence  of  the  contract.41 

§  284.  CLASSIFICATION  OF  CASES  IN  WHICH  THE  TITLE 
WILL  BE  HELD  DOUBTFUL.  The  following  classification  of  cases 
in  which  the  title  will  be  considered  doubtful,  has  been  made  by  an 
able  text  writer,42  and  is  perhaps  as  logical  and  accurate  as  the 
nature  of  the  subject  will  admit : 

(1)  Where  the  probability  of  litigation  ensuing  against  the  pur- 
chaser in  respect  of  the  matter  in  doubt  is  considerable;  or,  as  it 
was  put  by  Alderson,  B.,  where  there  is  a  "reasonable  decent 
probability  of  litigation."43  The  court,  to  use  a  favorite  ex- 
pression, will  not  compel  the  purchaser  to  buy  a  law  suit.44  If 

"Mead  v.  Atgeld,  supra.  Buswell  v.  Kerr  Co.,  112  Minn.  388;  128  N.  W. 
450. 

"1  Sugd.  Vend.  (8th  Am.  ed.)  537.  Canfield  v.  Gilbert,  4  Esp.  221;  Meyer 
v.  Madreperla,  68  N\  J.  L.  258;  53  Atl.  477;  06  Am.  St.  Rep.  536;  Mesa 
Market  Co.  v.  Crosby,  174  Fed.  96;  98  C.  C.  A.  70. 

"Montgomery  v.  Pacific  L.  €o.  Bureau,  94  Cal.  284;  29  Pac.  Rep.  640. 

"Post,  ch.  32.     Longworth  v.  Taylor,  1  McLean   (U.  S.),  395. 

•Fry  Spec.  Perf.  §  870. 

•Cattell  v.  Corrall,  4  Y.  &  C.  Ex.  237. 

••Price  v.  Strange,  6  Madd.  159,  KJf>;  Sharp  v.  Adrock,  4  RUBS.  374; 
I  I.i -el  tine  v.  Simmons,  6  W.  R.  368;  Pegler  v.  White,  33  Beav.  403.  See, 
also,  Potter  v.  Parry,  7  W.  R.  182,  Hurnell  v.  Firth,  15  W.  R.  54fi;  Barnett 
v.  T«-li-ph..iie  C....  2IM  Mam.  41;  87  N.  K.  ->•;•_»-.  William*  v.  Brick.-r.  s:j  Kan. 
.-»:»;  10!)  Pa,-.  998;  Bodcaw  Lumber  Co.  v.  \\1iite.  121  La.  715;  46  So.  782. 
A  purchaser  will  not  bo  compelled  to  accept  a  conveyance  from  a  trustee 
under  a  will  when  a  suit  is  pending  to  tent  the  validity  of  the  will.  Hale 
v  (  ravcner,  128  111.  408;  21  N.  K.  Ili-p.  .VII.  A  title  dependent  on  questions 
••  to  the  ritfht  of  an  executor  to  Hell  under  the  will,  and  as  to  whether 
certain  « I. •%!-••«•,  hail  n,,t  elected  to  take  under  the  will,  both  of  which  <|u.-- 
ti'-iiH  are  in  litigation,  is  not  marketable.  Warren  v.  Banning,  21  N.  V.  Supp. 
883.  A  title  Hiiggcntive  of  future  litigation  is  unmarketable.  Beer  v.  Leonard, 


OF    DOUBTFUL,    TITLES.  775 

there  be  any  reasonable  chance  that  some  third  person  may  raise 
a  question  against  the  owner  of  the  estate  after  the  completion  of 
the  contract,  the  title  will  be  deemed  unmarketable.45 

(II)  Where  there  has  been  a  decision  by  a  court  of  co-ordinate 
jurisdiction  adverse  to  the  title,  or  to  the  principle  on  which  the 
title  rests,  though  the  court  thinks  that  decision  wrong.*6 

(III)  Where  there  has  been  a  decision  in  favor  of  the  title, 
which  the  court  thinks  wrong.*1 

(IV)  Where  the  title  depends  on  the  construction  and  legal 
operation  of  some  ill-expressed  and  inartificial  instrument,  and  the 
court  holds  the  conclusion  it  arrives  at  to  be  open  to  reasonable 
doubt  in  some  other  court.49     Generally,  it  may  be  said  that  the 
opinion  of  the  court  upon  any  question  of  law  on  which  the  title 
depends,  will  not  render  the  title  marketable  if  the  court  thinks 
that  another  judge 49  or  other  competent  person  ^  might  entertain 
a  different  opinion  upon  the  same  question.    The  test  as  to  whether 
a  title  is  doubtful  or  not  upon  a  question  of  law,  has  been  held  to 

40  La.  Ann.  845;  5  So.  Rep.  257;  James  v.  Meyer,  41  La.  Ann.  1100;  7  So. 
Rep.  618.  Qucere,  whether  a  purchaser  can  be  compelled  to  accept  a  tax 
title?  The  court  intimated  that  such  a  title  might  be  as  free  from  objec- 
tion as  any  other.  Lesley  v.  Miorris,  9  Phila.  (Pa.)  110;  30  Leg.  Int.  108. 

45  Seaman  v.  Vawdrey,  16  Ves.  390;  McXutt  v.  Nellans,  82  Kan.  424;  108 
Pac.  834.  A  title  is  doubtful  if  it  exposes  the  purchaser  to  litigation.  Freetly 
v.  Barnhart,  51  Pa.  St.  279;  Speakman  v.  Forepaugh,  44  Pa.  St.  363.  "If 
the  purchaser  would  be  exposed  to  a  lawsuit  with  the  least  chance  of  losing 
it,  he  ought  not  to  be  held  to  the  bargain."  GIBSON,  C.  J.,  in  Gans  v. 
Renshaw,  2  Pa.  St.  34;  44  Am.  Dec.  152.  A  title  dependent  upon  the  ques- 
tion whether  certain  acts,  conduct  or  admissions  amount  to  an  estoppel  in 
pais  is  unmarketable.  McGrane  v.  Kennedy,  10  N.  Y.  Supp.  119. 

44  Per  ROMILLY,  M.  R.,  in  Mullings  v.  Trinder,  L.  R.,  10  Eq.  454;  Ferris  v. 
Plummer,  42  Hun  (N.  Y.),  440;  Wesley  v.  Eells,  177  U.  S.  370. 

47  Per  ROMILLY,  M.  R.,  in  Mullings  v.  Trinder,  L.  R.,  10  Eq.  454. 

48  Alexander  v.  Mills,  L.  R.,  6  Ch.  132;  Pyrke  v.  Waddingham,  10  Hare,  1; 
17  Eng.  L.  &  Eq.  534;  Richards  v.  Knight,  64  N.  J.  Eq.  1%;  53  Atl.  452; 
McCaffery  v.  Little,  20  App.  D.  C.   116.     A  doubtful  title  cannot  be  made 
marketable  by  an  opinion  of  a  court  upon  a  case  stated  between  the  vendor 
and  purchaser.     Pratt  v.  Eby,  67  Pa.  St.  396. 

"Vreeland  v.  Blauvelt,  23  N.  J.  Eq.  483.  The  fact  that  a  court  is  divided 
in  opinion  as  to  the  construction  of  a  statute  affecting  the  validity  of  a  title 
is  of  itself  sufficient  ground  for  refusing  to  compel  the  purchaser  to  complete 
the  contract.  Pratt  v.  Eby,  67  Pa.  St.  396. 

50  2  Beach  Mbd.  Eq.  Jur.  §  606. 


776  MARKETABLE    TITLE    TO    REAL    ESTATE. 

be  the  certain  conviction  of  the  court,  in  deciding  the  point,  that 
no  other  judge  would  take  a  different  view." 

(V)  Where  ihe  title  rests  upon  a  presumption  of  fact  of  such  a 
kind  thai  if  the  question  of  fact  were  before  a  jury  it  would  be  the 
duty  of  the  judge  not  to  give  a  clear  direction  in  favor  of  the  fact, 
but  to  leave  the  jury  to  draw  their  own  conclusions  from  the 
evidence. M 

(VI)  Where  the  circumstances  amount  to  presumptive  (though 
not  necessarily  conclusive)  evidence  of  a  fact  fatal  to  the  title,  as, 
e.  g.,  that  the  exercise  of  a  power  under  which  the  vendor  claimed 
was  a  fraud  upon  the  power.63 

§  285.  CLASSIFICATION  OF  CASES  IN  WHICH  THE  TITLE 
WILL  NOT  BE  HELD  DOTJBTFTTL.  The  same  author  makes  the 
following  classification  of  cases  in  which  the  court  would  not,  as 
he  conceives,  consider  the  title  to  be  doubtful.54 

(I)  Where  the  probability  of  litigation  ensuing  against  the 
purchaser  in  respect  of  the  doubt  is  not  great;  the  court,  to  use 
Lord  Harflwicke's  language  in  one  case,  "  must  govern  itself  by  a 
moral  certainty,  for  it  is  impossible  in  the  nature  of  things  there 
should  be  a  mathematical  certainty  of  a  good  title.66 

"2  Dart  Vend.  1102.  Rogers  v.  Waterhouse,  4  Drew,  32;  Pegler  v.  White, 
33  Beav.  403;  Howe  v.  Hunt,  31  Beav.  420.  But  set  Beioley  v.  Carter,  L.  R. 
4  Hi.  App.  230,  and  cases  cited.  2  Dart  Vend.  1103,  n. 

"Emery  v.  Grocock,  6  Madd.  54;  Shriver  v.  Shriver,  86  N.  Y.  575;  Doutney 
v.  Lamhie,  78  N.  J.  Eq.  277,  78  Atl.  746.  To  this  class,  Mr.  Fry  says,  may 
be  referred  many  of  those  cases  where  a  doubt  as  to  a  fact  has  prevailed  -.  as 
where  the  title  depended  upon  proof  that  there  was  no  creditor  who  could 
take  advantage  of  an  act  of  bankruptcy  committed  by  the  vendor  (Lower  v. 
Lush,  14  Veil.  547),  or  where  the  title  depended  upon  the  absence  of  notice  of 
•n  incumbrance,  of  which  absence  the  vendor  produced  some  evidence  ( Freer 
r.  Hesse,  4  De  G.,  (M.  A  G.  405),  or  upon  the  presumption  arising  from  mere 
possession.  Kyton  v.  Dieken,  4  Pri.  303. 

"Warde  v.  Dixon,  28  L.  ,!.  Ch.  315,  S.  C.,  7  W.  R.  148. 

••Fry  8p.  Perf.  (3d  Am.  ed.)  |  871. 

•Lyddall  v.  Weston,  2  Atk.  1ft.  In  this  case  specific  performance  by  the 
purchaser  wa*  enforced,  though  there  was  a  reservation  of  mines  by  the 
crown,  the  court  being  -ati-fi.-.l  that  there  was  no  subject-matter  for  the 
reservation  to  act  upon  or  that  all  legal  right  to  exercise  it  had  ceased.  See, 
also,  Seamen  v.  Vawdrey,  16  Ves.  303;  Martin  v.  Cotter,  3  Jon.  &  L.  406; 
Reed  v.  Sefton.  11  Cal.  App.  88,  103  Pac.  1005.  In  Spencer  v.  Topham,  22 
Beav.  573.  an  unwilling  purchaser  was  compelled  to  take  a  title  depending 


OF    DOUBTFUL    TITLES.  777 

(II)  Where  there  has  been  a  decision  adverse  to  the  title  by  an 
inferior  court,  which  decision  the  superior  court  holds  to  be  clearly 
wrong.56 

(III)  Where  the  question  depends  on  the  general  law  of  the 
land;  "as  a  general  and  almost  universal  rule  the  court  is  bound 
as  much  between  vendor  and  purchaser,  as  in  every  other  case,  to 
ascertain  and  so  determine  as  best  it  may,  what  the  law  is,  and  to 
take  that  to  be  the  law  which  it  has  so  ascertained  and  deter- 
mined." ''      An  illustration  of  this  rule,  as  applied  in  America,  will 
be  found  in  the  case  of  Fairchild  v.  Marshall.58     In  that  case  the 

on  the  validity  of  a  purchase  by  a  solicitor  from  his  client,  on  proof  of  the 
validity  of  the  transaction,  though  given  in  the  absence  of  the  client,  who,  it 
was  urged,  might  possess  other  evidence  and  ultimately  set  aside  the  sale. 
See,  also,  Falkner  v.  Equitable  Reversionary  Society,  4  Drew.  352.  The  mere 
fact  that  the  purchaser  is  to  take  under  an  assignment  for  the  benefit  of 
creditors,  which  may  be  attacked  as  invalid,  does  not  render  the  title  doubt- 
ful or  unmarketable  in  the  absence  of  anything  to  show  that  the  title  will 
probably  be  attacked.  Bayliss  v.  Stinson,  110  N.  Y.  621,  17  N.  E.  Rep.  144. 
The  bare  possibility  that  minor  heirs  may  attack  the  probate  of  their  an- 
cestor's will  within  the  time  allowed  them  by  statute  after  attaining 
their  majority,  with  nothing  to  show  even  a  suspicion  of  the  existence  of 
probable  grounds  for  such  an  attack,  does  not  render  a  title  under  the  will 
unmarketable.  McCaffrey  v.  Little,  20  App.  D.  C.  116. 

^Beioley  v.  Carter,  L.  R.,  4  Ch.  230;  Alexander  v.  Mills,  L.  R.,  6  Ch.  124; 
Radford  v.  Willis,  L.  R.,  7  Ch.  7 ;  Holly  v.  Hirsh,  135  N.  Y.  590,  32  N.  E. 
Rep.  709. 

57  Per  JAMES,  L.  J.,  in  Alexander  v.  Mills  L.  R.,  6  Ch.  131,  132;  Forster 
v.  Abraham,  L.  R.  17  Eq.  351;  Osborne  v.  Rowlett,  13  Ch.  D.  774;  Pyrke  v. 
Waddingham,  10  Hare,  1;  Palmer  v.  Locke,  18  Ch.  Div.  381;  In  re  Thackeray, 
40  Ch.  Div.  34;  Barrette  v.  Whitney,  36  Utah  574,  106  Pac.  522,  37  L.  R.  A. 

(N.  S. )  368.  Where  there  is  a  doubt  about  the  validity  of  a  title  arising 
from  a  construction  of  an  act  of  parliament,  or  the  language  of  an  instrument 
or  will,  it  is  the  duty  of  the  court  to  remove  the  doubt  by  deciding  it.  The 
decision  removes  the  doubt,  and  specific  performance  will  be  adjudged.  Bell 
v.  Holtby,  L.  R.,  15  Eq.  178.  See  Fairchild  v.  Marshall,  42  Minn.  14,  43  X. 
W.  Rep.  563;  Ebling  v.  Dwyer,  149  N.  Y.  460,  44  N.  E.  155;  Williams  v.  Marx, 
124  Cal.  22,  56  Pac.  Rep.  603;  Ladd  v.  Weiskopf,  62  Minn.  29,  64  X.  W. 
Rep.  99;  Lippincott  v.  Wikoff,  54  N.  J.  Eq.  107,  33  Atl.  305;  Hatt  v.  Rich, 
59  N.  J.  Eq.  492,  45  Atl.  969.  A  doubt  precluding  specific  performance  exists 
if  the  seller's  title  depends  on  a  legal  question  not  settled  by  previous  de- 
cisions, or  concerning  which  there  are  dicta  of  weight  indicating  that  courts 
might  differ  as  to  its  determination.  Richards  v.  Knight,  64  N".  J.  Eq.  196, 
53  Atl.  452. 

58  42  Minn.  14,  43  N.  W.  Rep.  563. 

98 


778  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

purchaser  objected  to  the  title  on  the  ground  that  the  land  was  sub- 
ject to  a  claim  of  dower  in  favor  of  the  widow  of  a  former  owner, 
but  the  vendor  showed  that  the  widow  had  elected  to  take  a  pro- 
vision in  her  husband's  will  in  lieu  of  dower,  and  the  Supreme 
Court  in  that  State  having  decided  that  such  election  constituted  a 
bar  to  dower,  it  was  held  that  the  question  of  law  whether  such 
election  barred  the  widow's  claim  to  dower  could  no  longer  be 
considered  doubtful,  and  that  the  purchaser  must  complete  the 
contract. 

(IV)  Where  tlie  question,  though  one  of  construction,  turns  on 
a  general  rule  of  construction,  unaffected  by  any  special  context  in 
the  instrument  and  the  court  is  in  favor  of  the  title.59 

(V)  Where  the  title  depends  on  a  presumption,  provided  it  be 
such  that  if  the  question  were  before  a  jury,  it  would  be  the  duti/ 
of  the  judge  to  give  a  clear  direction  in  favor  of  the  fact,  and  not 
to  leave  the  evidence  generally  to  the  consideration  of  the  jury.60 

(VI)  Where  the  doubt  rests  not  on  proof  or  presumption  bid 
on  a  suspicion  of  mala  fides.91     But  a  purchaser  cannot  be  com- 

"RadTord  v.  Willis,  L.  R.,  7  Ch.  7. 

••Emory  v.  Grocock,  6  Madd.  54;  Barnwell  v.  Harris,  1  Taunt.  430.  Thus, 
where  the  recital  of  deeds  raised  the  presumption  that  they  contained  nothing 
adverse  to  the  title,  the  mere  loss  of  the  deed,  where  the  title  was  fortified  by 
sixty  years'  undisputed  possession,  was  held  not  to  create  a  reasonable  doubt. 
Prosser  v.  NVatts,  6  Madd.  59;  Maginn^s  v.  Fallon,  2  Moll.  561.  So,  where  the 
validity  of  a  title  depended  on  no  execution  having  been  taken  out  between 
certain  specified  times,  and  nothing  was  shown  to  have  been  done  which  could 
be  referred  to  Hiich  an  execution,  the  title  was  held  pood.  Canst  on  v.  Macklew. 
2  Sim.  242.  So,  where  the  question  was  whether  a  deed  from  executors 
tmiKt  be  presumed  in  a  case  in  which  the  proceeds  of  sale  were  received  by 
them  and  distributed  among  those  entitled.  Wills  v.  Fisher,  257  Pa.  487,  101 
All.  818.  So,  also,  a  prior  voluntary  conveyance  by  the  purchaser's  grantor 
is  no  sufficient  objection  to  the  title,  the  court  acting  upon  the  presumption 
that  the  voluntary  conveyance  had  not  been  validated  by  subsequent  dealings. 
Rtitterfield  v.  Heath.  15  Beav.  403;  Buckle  v.  Mitchell,  18  Ves.  100. 

"This  point,  the  author  says,  has  given  rise  to  some  diversity  of  opinion. 
In  Hartley  v.  Smith,  6  Buck  Bunkr.  C.  3<58,  the  title  depended  on  a  grant  of 
chattel*.  |M)-sc--.i«in  of  which  was  conditionally  reserved  by  the  grantor  in 
fraud,  it  was  alleged,  of  creditors.  The  purchaser  wan  rolievitl  from  the  bar- 
gain on  the  ground  that  he  hud  no  adequate  means  of  ascertaining  the  bona 
fidft  of  the  transaction.  See,  also,  Boswdl  v.  Mendham,  8  Mad.  373.  But 
the  mere  po«sihility  of  fraud  in  extrinsic  fact*  cannot  always  be  held  a 
•ufflcient  objection  to  the  title.  Cattell  v.  Corrall,  4  Y.  &  C.  Ex.  22* ;  Oreen 


OF    DOUBTFUL,    TITLES.  779 

polled  to  take  a  title  which  is  open  to  attack  on  the  ground  of 
fraud,  bad  faith,  or  breach  of  trust  on  the  part  of  one  through 
whom  the  title  is  derived.62  Thus,  where  a  conveyance  of  land 

v.  Pulsford,  2  Beav.  71;  McQueen  v.  Farquhar,  11  Ves.  467;  Alexander  v. 
Mills,  L.  R.,  6  Ch.  124.  See,  also,  Grove  v.  Bastard,  1  De  G.,  M.  &  G.  69; 
Re  Huish's  Charity,  L.  R.,  10  Eq.  5;  Colton  v.  Wilson,  3  P.  Wms.  190;  Mor- 
rison v.  Arnold,  19  Ves.  670;  Weddall  v.  Nixon,  17  Beav.  160;  McCulloch  v. 
Gregory,  3  K.  &  J.  12;  Jacobs  v.  Morrison,  136  N.  Y.  101,  32  N.  E.  Rep.  552. 
Whether  a  title  derived  through  one  who  purchased  in  his  own  right  forty 
years  before  at  a  sale  made  by  himself  as  trustee,  was  valid,  there  being  noth- 
ing to  show  that  the  trustee  did  not  properly  account  to  the  cestui  que  trust, 
and  the  property  having  been  frequently  transferred  in  the  meanwhile.  Held, 
marketable.  Herbert  v.  Smith,  6  Lans.  (N.  Y.)  493.  Where,  by  order  of 
court,  trustees  were  permitted  to  purchase  the  trust  subject,  the  beneficiaries 
being  parties  to  the  suit,  it  was  held  that  such  a  purchase  formed  no  ground 
of  objection  to  the  title.  Webster  v.  Kings  Co.  Trust  Co.,  145  N".  Y.  275,  39 
N.  E.  Rep.  964.  If  the  trustee  purchase  the  trust  subject  himself  he  cannot 
rescind  the  contract  on  the  ground  that  the  sale  was  invalid.  Peay  v.  Capps, 
27  Ark.  160;  Richardson  v.  Jones,  3  Gill  &  J.  (Md.)  163,  22  Am.  Dec.  293. 
There  is  no  presumption  of  law  that  property  acquired  by  a  married  woman 
by  conveyance  from  a  third  person,  was  paid  for  out  of  the  husband's  means, 
nor  that  the  conveyance  was  made  to  the  wife  for  the  purpose  of  defeating 
the  husband's  creditors.  Hence,  the  mere  fact  that  a  title  is  derived  through 
such  a  conveyance  will  not  render  it  unmarketable.  Nicholson  v.  Condon, 
71  Md.  620,  18  Atl.  Rep.  812.  As  to  the  effect  of  payment  by  the  husband 
for  property  conveyed  to  the  wife,  see  iSeldner  v.  McCreery,  T5  Md.  287,  23 
Atl.  Rep.  641. 

*2 Preissenger  v.  Sharp,  39  St.  Rep.  (N.  Y.)  2fiO,  14  N.  Y.  Supp.  372,  where 
the  question  was  whether  a  certain  sale  was  no  more  than  a  purchase  of  the 
trust  subject  by  the  trustee  himself.  Gardner  v.  Dembinsky,  65  N.  Y.  Supp. 
183,  52  App.  Div.  473,  in  which  case  the  trustee  purchased  the  premises  at  a 
sale  made  by  himself.  See,  also,  People  v.  Globe  Ins.  Co.,  3$  Hun  (N.  Y.), 
393;  Close  v.  Stuyvesant,  132  111.  607,  23  N.  E.  Rep.  868.  Where  the  question 
was  whether  a  certain  entry  of  public  lands  would  probably  be  canceled  as 
fraudulent:  McPherson  v.  Smith,  49  Hun  (N.  Y.),  254,  2  N.  Y.  Supp.  60. 
Titles  dependent  upon  the  following  questions  involving  mala  fides,  have  been 
held  unmarketable:  Whether  a  purchase  of  the  premises  in  partition  by  one 
suing  as  next  friend  to  an  infant  was  valid:  Collins  v.  Smith,  1  Head 
(Tenn.),  251.  Whether  a  conveyance  voluntary  on  its  face  could  be  sustained 
against  a  subsequent  judgment  creditor  of  the  grantor :  Tillotson  v.  Gesner, 
6  Stew.  Eq.  (N.  J.)  313.  Whether  a  purchaser  of  an  estate  from  trustees 
under  a  will  had  acted  in  collusion  with  the  trustees  to  defeat  the  purposes 
of  the  testator  by  the  sale:  McPherson  v.  Smith,  49  Hun  (N.  Y.),  254,  2 
N.  Y.  Supp.  60.  Whether  a  sale  and  conveyance  by  an  executor  to  A.,  and  a 
reconveyance  within  four  days  by  A.  to  the  executor,  was  in  fact  no  more 
than  a  sale  by  the  executor  to  himself:  People  v.  Open  Board,  etc.,  92  N.  Y. 
98.  Whether  a  purchase  by  a  wife  at  a  sale  made  by  her  husband  as  assignee 


780  MARKETABLE    TITLE    TO    REAL    ESTATE. 

was  made  by  the  defendant  in  a  suit  just  before  judgment  for  a 
large  sum  was  rendered  against  him,  which  judgment  would  have 
bound  the  land  if  the  conveyance  had  not  been  made,  and  the 
evidence  failed  to  show  that  the  purchase  was  made  in  good  faith, 
without  notice  and  for  valuable  consideration,  it  was  held  that  a 
purchaser  could  not  be  compelled  to  accept  a  title  dependent  upon 
such  conveyance.63 

§  2S<I.  DOCTRINE  OF  DOTTBTFTJL  TITLES  AT  LAW.  Relief  to 
a  purchaser  in  respect  to  a  title  absolutely  bad  and  not  merely 
doubtful,  may  be  administered  in  several  ways.  Thus,  at  law  he 
may  maintain  an  action  for  breach  of  the  contract,  express  or 
implied,  to  convey  a  good  title;  or  he  may  rescind  the  contract 
and  maintain  assumpsit  to  recover  back  so  much  of  the  purchase 

for  the  benefit  of  creditors,  was  in  substance  a  purchase  by  the  assignee  him- 
self: \Yohl f art h  v.  Chamberlain.  6  X.  Y.  St.  Rep.  207.  Whether  a  sale  under 
an  execution,  creating  an  apparent  cloud  on  the  vendor's  title,  was  fraudulent, 
irregular  and  void:  Miorgan  v.  M'organ,  2  Wh.  (U.  S.)  290.  Whether  a  pur- 
chase of  part  of  the  estate  of  a  decedent  by  his  executor,  in  good  faith,  was 
valid.  Weil  v.  Radley,  52  X.  Y.  Supp.  398.  In  Cans  v.  Renshaw,  2  Pa.  St.  34: 
44  Am.  Dec.  152,  it  being  questionable  whether  the  conveyance  under  which 
the  vendor  held,  was  fraudulent  and  void,  the  purchaser  was  relieved.  Where 
the  vendor  claimexl  title  through  a  sheriff's  deed,  and  affidavits  had  been  filed 
in  the  proceedings  in  which  such  sale  had  been  made,  showing  that  the  sale 
had  been  procured  to  defeat  the  rights  of  third  persons  who  had  recovered 
judgment  in  ejectment  for  the  land,  the  tit.le  was  held  unmarketable.  Herman 
v.  Sommers.  15S  Pa.  St.  424.  Titles  hfld  marketable.  Whether  title  dependent 
on  a  sale,  under  decree,  to  the  wife  of  a  special  guardian,  was  questionable, 
the  sale  having  been  confirmed  and  26  years  having  elapsed  without  attack 
by  parties  interested.  Strauss  v.  Benheim,  59  N.  Y.  Supp.  1054,  28  Misc. 
Rep.  660.  Whether  the  court  may  ratify  a  sale  by  executors  to  the  wife  of 
one  of  the  executors,  none  of  the  parties  in  interest  having  elected  to  exercise 
their  right  to  have  the  sale  declared  void.  Rhodes  v.  Caswell,  5S  N.  Y.  Supp. 
470,  41  App.  Div.  229.  Whether  a  purchase'  by  the  wife  of  an  executor  and 
daughter  «f  the  testator,  at  the  executor's  sale,  after  extensive  advertising 
an.!  xpirited  bidding,  and  for  full  value,  wa<*  valid.  Miller  v.  Weinstein,  65 
N".  Y.  Supp.  387.  52  App.  Div.  533.  Where  a  guardian  failed  to  pay  the 
interrnt  on  a  mortgage  of  the  lands  of  his  wards,  who  were  his  children,  and 
the  land*  were  sold  on  foreclosure  to  one  who  afterwards  conveyed  them  to  the 
guard  inn  at  the  foreclowure  price,  it  was  held,  in  the  absence  of  evidence  of 
had  faith  or  of  injury  to  the  wards,  that  the  purchase  was  valid  and  the  title 
of  the  guardian  marketable.  Kullman  v.  Cox,  167  N.  Y.  411,  60  N.  E.  Rep. 
744. 
•TillnUon  v.  O«ner,  33  N".  .1.  Kq.  313. 


OF    DOUBTFUL    TITLES.  781 

money  as  may  have  been  paid;  or  to  an  action  against  him  for 
damages  in  failing  to  perform  the  contract  on  his  part,  or  to 
recover  the  purchase  money,  he  may  set  up  the  vendor's  want  of 
title  as  a  defense.64  In  equity  in  case  of  a  defective  title  he  may 
file  his  bill  demanding  a  rescission  of  the  contract,  or  specific 
performance  of  the  agreement  to  convey  good  title,  or  damages  in 
lieu  thereof,  if  it  appear  that  the  vendor  cannot  perform  the  con- 
tract; or  to  a  bill  against  him  for  specific  performance  he  may 
show  as  a  defense  the  plaintiff's  want  of  title.65  But  in  respect 
to  a  merely  doubtful  title,  one  which  might  upon  protracted  and 
expensive  litigation  with  third  parties,  prove  valid,  the  purchaser 
had  under  the  common-law  procedure  no  relief;  all  titles  being 
considered  at  law  either  good  or  bad.66  Thus,  if  in  an  action  at 
law  against  the  purchaser  for  breach  of  the  contract,  he  was  not 
able  to  demonstrate  that  the  plaintiff's  title  was  absolutely  bad, 
and  could  only  suggest  doubts  arising  upon  points  of  law  or  upon 
facts  affecting  the  title,  judgment  for  the  plaintiff  followed,  and 
the  purchaser  was  left  to  his  remedy,  if  any,  in  equity.67  Such 
was  formerly  the  state  of  the  law  in  England,  and  it  is  perhaps  the 
same  in  some  of  the  American  States  to-day.  But  now,  by  virtue 
of  express  statutory  provision  in  England,68  and  in  consequence 
of  statutes  in  many  of  the  States  abolishing  all  distinctions 
between  legal  and  equitable  procedure,  the  purchaser  may  have 
the  full  benefit  of  the  doctrine  of  doubtful  titles  in  any  action 
at  law  by  or  against  him  to  enforce  any  right  founded  on  the  con- 

"Ante,  p.  3,  Dart.  Vend.  975;  Stevens  v.  Austin,  7  Jur.  (N.  S.)  873. 

w  Ante,  p.  3,  Dart  Vend.  982. 

M  1  Sugd.  Vend.  596.  Romilly  v.  James,  6  Taunt.  263 ;  Camfield  v.  Gilbert, 
4  Esp.  221.  But  see  Simmons  v.  Haseltine,  5  C.  B.  (N.  S.)  554.  "There  can 
be  no  such  thing  as  a  doubtful  title  in  a  court  of  justice;  it  must  be  either 
right  or  wrong,  and  the  thickness  of  the  medium  through  which  the  point 
is  to  be  seen,  makes  no  difference  in  the  end."  Baron  EYRE  in  Gale  v.  Gale, 
2  Coxe,  145.  But  a  purchaser  has  been  permitted  at  law  to  show  that  the 
vendor's  title,  apparently  good,  is  liable  to  be  defeated;  as  where  a  right  to 
re-enter  upon  a  grantee  or  lessee  for  covenants  or  conditions  broken  exists. 
1  Sugd.  Vend.  (8th  Am.  ed.)  597. 

"Moore  v.  Williams,  115  N.  Y.  586,  22  N.  E.  Rep.  233;  Reed  v.  Sefton,  11 
Cal.  App.  88,  103  Pac.  1095. 

•1  Sugd.  Vend.  (8th  ed.)  597,  17  &  18  Viet.  c.  125,  §  83. 


782  MARKETABLE    TITLE    TO    REAL    ESTATE. 

tract  of  sale."  In  some  of  the  States  which  retain  the  separate 
legal  and  equitable  jurisdiction,  a  statutory  provision  exists  allow- 
ing the  defendant  in  an  action  on  the  contract  to  avail  himself 
of  any  matter  which  would  enable  him  to  relief  in  equity  as  a 
defense  to  the  action.70  Under  such  provisions  it  is  presumed 
that  the  purchaser,  when  sued  for  the  price  of  the  property  or  for 
breach  of  contract  in  refusing  to  accept  the  title,  may  set  up  as  a 
defense,  the  fact  that  the  title  is  so  doubtful  that  a  court  of  equity 
would  not  compel  him  to  accept  it  upon  a  bill  for  specific  perform- 
ance. In  such  of  the  States  as  have  no  statute  admitting  equitable 
defenses  at  law,  it  is  presumed  that  the  common  law  is  in  full 
force,  and  that  a  purchaser  must  seek  his  relief  in  equity  by  suit 
for  rescission,  or  injunction  against  the  vendor's  action  at  law, 
in  a  case  where  the  title  is  doubtful. 

While,  as  we  have  seen,  under  modern  systems  of  procedure, 
the  purchaser  may  avail  himself  at  law  of  the  objection  or  defense 

•2  Beach  Mod.  Eq.  Jur.  §  607.  M.  E.  Church  Home  v.  Thompson,  108 
N.  Y.  618,  15  X.  E.  Rep.  193;  Moore  v.  Williams,  115  X.  Y.  586,  22  N.  E. 
Rep.  233,  disapproving  Romilly  v,  James,  6  Taunt.  263;  O'Reilly  v.  Kinp. 
2  Rob.  (N.  Y.)  587;  M.  E.  Church  Home  v.  Thompson,  52  N.  Y.  Super.  Ct. 
321,  and  Bayliss  v.  Stimson,  53  N.  Y.  Super.  Ct.  225.  Other  New  York  cases 
which  follow  O'Reilly  v.  King,  supra,  or  maintain  the  same  doctrine,  and 
which  must  be  regarded  as  overruled  or  disapproved  by  Moore  v.  Williams, 
supra,  so  far  as  the  right  to  recover  back  the  purchase  money  where  the 
title  is  merely  doubtful  is  concerned,  are  Walton  v.  Meeks,  41  Hun  (N.  Y. ), 
311,  and  Murray  v.  Hanvay,  56  N.  Y.  337.  The  equitable  rules  applicable 
to  a  suit  to  compel  a  vendee  to  perform  his  contract,  are  applicable  to  an 
action  at  law  by  him  to  recover  back  the  purchase  money  on  the  ground  thai 
the  title  is  insufficient.  Moore  v.  Williams,  115  N.  Y.  586,  22  N.  E.  Rep.  233; 
M.th.xliKt  K.  C.  Home  v.  Thompson,  108  N.  Y.  618,  15  N.  E.  Rep.  193; 
Hurwell  v.  Jackson,  »  N.  Y.  335;  Warren  v.  Banning,  21  X.  Y.  Supp.  883. 
A  suit  to  recover  purchase  money  on  articles  of  agreement  is  in  the  nature  of 
a  bill  for  specific  performance;  hence,  where  the  title  to  the  land  is  doubtful 
or  not  marketable,  the  plaintiff  cannot  be  allowed  to  recover.  Murray  v. 
KlliB.  112  Pa.  St.  492,  3  Atl.  Rep.  845;  Hertxherg  v.  Irwin.  11  Xorris  (Pa.), 
48.  The  defense  of  doubtful  title  is  as  available  in  an  action  by  the  vendor  to 
recover  the  purchase  money,  as  it  would  be  in  a  suit  by  him  for  specific  per- 
formance. Reynolds  v.  Strong,  82  Hun  (X.  Y.),  202,  31  X.  Y.  Supp.  .TJ!i; 
Ladd  v.  Weitkopf,  62  Minn.  29,  64  X.  W.  Rep.  99.  Whatever  absolves  a 
purchaser  in  equity  from  his  obligation  to  complete  the  contract,  will  dis- 
charge him  at  law.  Taylor  v.  Williams,  (Colo.)  31  Pac.  Rep.  505;  Schroeder 
v.  Witham,  66  Gal.  63«,  6  Pac.  Rep.  737. 

*•  It  is  so  provided  in  Virginia,  Code,  1887,  f  3290. 


OF    DOUBTFUL    TITLES.  783 

that  the  title  is  doubtful  or  unmarketable  though  not  absolutely 
bad,  the  better  opinion  seems  to  be  that  he  cannot,  in  an  action  for 
breach  of  the  contract,  recover  damages  for  the  loss  of  his  bargain, 
that  is,  damages  beyond  the  consideration  money,  interest,  costs 
and  expenses,  unless  he  can  show  that  the  title  is  absolutely  bad.71 

nlngalls  v.  Hahn,  47  Hun  (N.  Y.),  104,  which  was  an  action  to  recover 
back  purchase  money  paid,  and  also  to  recover  a  certain  sum  as  liquidated 
damages  provided  for  in  the  contract.  The  court  said :  "  The  nature  of  this 
action  should  be  kept  in  mind  lest  the  principles  governing  it  be  confounded 
with  those  relating  to  actions  of  a  different  character.  This  is  not  an  action 
to  require  the  vendee  to  specifically  perform  his  contract  by  accepting  the 
title  offered.  Nor  is  it  an  action  by  the  vendee  asking  that  a  court  of  equity 
relieve  him  from  his  contract  upon  the  ground  that  the  title  offered  is  not 
free  from  reasonable  doubt.  This  is  an  action  at  law  to  recover  damages 
for  a  breach  of  the  covenants  set  forth.  In  such  an  action  the  party  bring- 
ing it  must  satisfy  the  court  that  the  title  offered  is  absolutely  bad.  It  will 
not  be  sufficient  to  show  that  it  is  doubtful.  Romilly  v.  James,  6  Taunt. 
263;  Boyman  v.  Gutch,  7  Bing.  379;  Camfield  v.  Gilbert,  4  Esp.  221;  O'Reilly 
v.  King,  2  Rob.  (N.  Y.)  587;  ML  E.  Church  Home  v.  Thompson,  20  J.  &  S. 
(N.  Y.)  321;  Baylias  v.  Stin*on,  21  J.  &  S.  (N.  Y.)  225;  Roberts  v.  Me- 
Fadden,  (Tex.  Civ.  App.)  74  S.  W.  Rep.  105,  ciitng  the  text.  To  enable  the 
plaintiff  to  maintain  this  action  the  law  requires  that  the  defendant  should 
be  proved  to  have  been  in  default  in  the  performance  of  his  agreement.  That 
could  only  be  done  by  proof  that  the  defendant  did  not  own  the  property; 
that  there  were  liens  or  incumbrances  upon  it,  or  that  he  had  refused  or 
neglected  to  convey  after  a  tender  of  the  purchase  price  and  request  by  the 
plaintiff.  Proof  of  one  or  the  other  of  these  facts  was  necessary  to  entitle  the 
plaintiff  to  recover  the  damages  awarded.  Walton  v.  Meeks,  41  Hun  (N.  Y.), 
311,  314,  and  cases  cited;  Murray  v.  Harway,  56  N.  Y.  337,  344.  The  cases 
cited  by  the  respondent  (purchaser)  are  not  in  conflict  with  this  doctrine. 
In  an  action  in  equity  to  compel  a  specific  performance,  or  for  relief  from  a 
contract  on  the  ground  of  the  uncertainty  of  the  title  offered,  another  and 
different  rule  applies."  Of  the  cases  cited  in  the  foregoing  opinion,  in  but 
two,  it  seems,  Bayliss  v.  Stinson,  21  J.  &  S.  (N.  Y.)  225,  and  Walton  v. 
Meeks,  41  Hun  (N.  Y.),  311,  did  the  plaintiff  seek  to  recover  anything  more 
than  the  purchase  money,  interest  and  expenses.  In  so  far  as  they  tend  to 
establish  the  proposition  that  the  purchaser  cannot  recover  back  his  deposit 
unless  the  title  is  shown  to  be  absolutely  bad,  and  not  merely  doubtful,  they 
are  disapproved  in  the  more  recent  cases  of  M.  E.  Church  v.  Thompson,  108 
N.  Y.  618,  15  N.  E.  Rep.  193,  and  Moore  v.  Williams,  115  N.  Y.  586,  22 
N.  E.  Rep.  233.  It  is  to  be  observed,  however,  that  these  two  last-mentioned 
cases  do  not  in  terms  disapprove  the  proposition  that  a  purchaser  cannot  re- 
cover liquidated  damages,  or  damages  for  the  loss  of  his  bargain,  when  the 
title  is  merely  doubtful  and  not  absolutely  bad,  which  is  the  main  point  de- 
cided in  Ingalls  v.  Hahn,  supra.  And  in  this  case,  the  right  of  the  purchaser 
to  recover  back  his  deposit,  where  the  title  is  doubtful  only,  seems  to  be 


784  MARKETABLE    TITLE    TO    REAL    ESTATE. 

Practically  the  distinction  is  of  little  value,  except  in  cases  in 
which  the  contract  fixes  a  sum  as  liquidated  damages,  and  except 
in  those  jurisdictions  in  which  the  purchaser  is  allowed  damages 
for  the  loss  of  his  bargain;  for  the  generally  prevailing  rule  is 
that  in  an  action  for  breach  of  the  contract  upon  a  failure  of  the 
title,  the  purchaser  cannot,  in  the  absence  of  fraud,  recover  dam- 
ages for  the  loss  of  his  bargain. 

Where  the  title  depends  upon  a  fact  which  is  left  in  doubt,  it 
has  been  said  that  a  court  of  law  will  act  upon  the  doubt  as  well 
as  a  court  of  equity.72  Such  a  title,  however,  it  seems  would  be 
regarded  at  law  as  absolutely  bad  and  not  merely  doubtful.73 

§  287.  INCONCLUSIVENESS  OF  JUDGMENT  OB  DECREE.  One 
of  the  principal  reasons  for  the  rule  that  a  purchaser  cannot  be 
compelled  to  take  a  doubtful  title,  is  that  the  decree  of  the  court 
is  not  binding  upon  those  whose  rights  in  the  premises  give  rise  to 
the  doubts  of  which  the  purchaser  complains,  they  not  being  parties 
to  the  suit  for  specific  performance.  They  might  raise  the  same 
question  in  a  new  proceeding,  and  a  different  court  with  different 
lights  upon  the  subject  might  pronounce  a  judgment  subversive 

recognized.  In  Kraemer  v.  Adelaberger,  55  X.  Y.  Super.  Ct.  345,  which  was  an 
action  to  recover  back  purchase  money  paid,  the  title  was  held  absolutely  bad 
and  not  merely  doubtful.  Relief  at  law  on  the  ground  that  the  title  was 
doubtful  or  unmarketable,  ha4)  been  administered  in  the  following  cases: 
Hayes  v.  Nourse,  8  N.  Y.  State  Rep.  397 ;  Droge  v.  Cree,  39  N.  Y.  State  Rep. 
324.  14  N.  Y.  Supp.  241;  Hemmer  v.  Hustace,  51  Hun  (N.  Y.),  457,  3  N.  Y. 
Supp.  850,  which  was  an  action  by  the  purchaser  to  recover  damages  for  a 
breach  of  contract.  Moore  v.  Appleby,  108  N.  Y.  237,  15  N.  E.  Rep.  377; 
Porterflcld  v.  Payne,  11  N.  Y.  Supp.  31;  Warren  v.  Banning,  21  N.  Y.  Supp. 
883.  In  Pennsylvania,  the  question  whether  the  doctrine  of  marketable  title 
can  be  enforced  at  law,  cannot  arise,  because  in  that  State  there  is  no  distinc- 
tion between  legal  and  equitable  relief,  and  an  action  to  recover  the  purchase 
money  is  treated  as  a  suit  for  specific  performance.  See  Nicoll  v.  Carr,  35 
I'u.  St.  381.  The  common-  law  rule  that  the  doctrine  of  doubtful  titles  can- 
not be  enforced  at  law,  was  approved  in  Kent  v.  Allen,  24  Mo.  98.  But  in 
Hymers  v.  Branch,  0  Mo.  App.  511,  a  purchaser  was  allowed  to  recover  bark 
the  purchase  money  in  an  action  at  law,  upon  the  ground  that  the  title  was 
doubtful.  The  decision  in  Kent  v.  Allen,  supra,  was  not  adverted  to. 

:>  1  Sugd.  Vend.  (8th  Am.  ed.)  602,  citing  Gibson  v.  Spurrier,  Peake  Ad. 
Cat.  49. 

"1  Sugd.  Vend.  (8th  Am.  ed.)  597  (400).  Simmons  v.  Haseltine,  5  C.  B. 
654. 


OF    DOUBTFUL,    TITLES.  785 

of  the  title  which  the  purchaser  was  compelled  to  take.74  The 
same  observations  apply  with  equal  force  where  the  doubt  hinges 
upon  a  question  of  fact.  It  would  be  unjust  to  compel  a  purchaser 
to  take  a  title  dependent  upon  a  doubtful  question  of  fact,  when 
the  facts  presented  might  be  changed  upon  a  new  inquiry.75 

It  has  been  said  that  it  is  only  necessary,  in  determining 
whether  a  title  is  marketable,  to  ascertain  whether  or  not  there  is 
some  practical  and  serious  question  affecting  the  title,  upon  which 
persons  not  parties  to  the  suit,  and  who  cannot  be  estopped  by  the 
judgment,  have  a  right  to  be  heard  in  some  future  litigation.76  On 
questions  of  title  depending  on  the  possibility  of  future  rights 

74  Post,  §  290.  Pyrke  v.  Waddingham,  10  Hare,  1;  Morgan  v.  Morgan,  2 
Wh.  (U.  S.)  290;  Irving  v.  Campbell,  121  N.  Y.  353,  24  N.  E.  Rep.  821; 
Abbott  v.  James,  111  N.  Y.  673,  19  N.  E.  Rep.  434;  Kilpatrick  v.  Barton, 
125  N.  Y.  751,  26  N.  E.  Rep.  925;  Fisher  v.  Wilcox,  77  Hun.  (N.  Y.),  208; 
Felix  v.  Devlin,  86  N".  Y.  Supp.  12,  90  App.  Div.  103;  Downey  v.  Seib,  92 
N.  Y.  Supp.  43-1,  102  App.  Div.  317;  Boylan  v.  Townley,  62  N.  J.  Eq.  591,  51 
Atl.  116;  Wollenberg  v.  Rose,  (Oreg.)  78  Pac.  Rep.  751;  Zimmerman  v.  Owen, 
(Tex.  Civ.  App.)  77  S.  W.  Rep.  971;  Lockhart  v.  Smith,  47  La.  Ann.  121, 
Itf  So.  Rep.  660;  William*  v.  Bricker,  83  Kan.  53,  109  Pac.  948;  N.  Highlands 
Co.  v.  Holt,  144  Ga.  43,  85  S.  E.  1039 ;  Kohlrep  v.  Ram,  79  N.  J.  Eq.  386,  81 
Atl.  1103;  Barrette  v.  Whitney,  36  Utah  574,  106  Pac.  522,  37  L.  R.  A. 
(N.  S.)  368.  In  Doebler's  Appeal,  14  P.  F.  Smith  (Pa.),  9,  the  vendor 
contended  that  he  took  a  fee  under  the  will;  the  purchaser  insisted  that 
the  vendor  took  a  life  estate;  the  court  at  nisi  prius  was  of  the  opinion 
that  he  took  an  estate  tail,  while  the  appellate  court  decided  that  he  took  a 
fee.  But  this  last  court  refused  to  compel  the  purchaser  to  accept  the  title, 
since  its  decision  was  in  no  way  binding  upon  those  who  might  set  up  a 
claim  in  tail  or  in  remainder.  In  Sohier  v.  Williams,  1  Curt.  C.  C.  (U.  S.) 
479,  a  testatrix  empowered  a  trustee  to  sell  lands  devised  "  when  the  major 
part  of  my  children  shall  recommend  and  advise  the  same."  The  court  was 
of  the  opinion  that  the  consent  of  the  major  part  of  the  children  living  when 
the  power  was  to  be  exercised  was  sufficient  to  authorize  a  sale,  but  considered 
the  question  so  doubtful,  that,  but  for  the  fact  that  all  parties  in  interest 
were  before  the  court  and  would  be  bound  by  its  decree,  the  purchaser  would 
have  been  excused  the  performance  of  the  contract. 

75Flemming  v.  Burnham,  100  N.  Y.  10,  2  N.  E.  Rep.  905;  Vought  v. 
Williams,  120  N.  Y.  253,  24  N.  E.  Rep.  195,  8  L.  R.  A.  59,  17  Am.  St.  Rep. 
634;  Robinson  v.  Steele,  95  Wash.  154,  163  Pac.  486;  Deseumuer  v.  Rondel, 
76  N".  J.  Eq.  394,  74  Atl.  703.  Where  no  fact  is  in  dispute  and  no  doubtful 
question  of  law  is  presented,  the  purchaser  must  take  the  title.  Mygatt  v. 
Maslen,  126  N.  Y.  Supp.  405,  141  App.  Div.  468. 

'•Argall  v.  Raynor,  20  Hun   (N.  Y.),  267. 

99 


786  MARKETABLE    TITLE    TO    REAL    ESTATE. 

arising,  the  court  must  consider  the  course  which  should  bo  taken 
if  those  rights  had  actually  arisen,  and  were  in  course  of  litiirn- 
tion.77  But  if  all  parties  in  interest  are  before  the  court  the 
objection  that  the  title  is  doubtful,  if  dependent  upon  a  question 
of  law,  cannot  be  made,  because  the  court  is  bound  to  decide  th<- 
question,  and  its  decision  when  made  will  be  conclusive  upon  the 
parties.78  It  is  to  be  observed  in  this  connection,  that  the  rule 
which  forbids  the  adjudication  of  a  question  of  title,  where  all  the 
parties  in  interest  are  not  before  the  court,  does  not  apply  as 
between  vendor  and  purchaser,  when  the  objection  is  made  that 

"Pyrke  v.  Waddingham,  10  Hare.  1.  Sohier  v.  Williams,  1  dirt.  C.  C. 
(U.  S.)  479;  Ebling  v.  Ihvyer,  149  N.  Y.  460,  44  N.  E.  Rep.  155.  Mr.  Fry 
in  his  learned  treatise  on  Specific  Performance  (8  802),  speaking  of  the 
doctrine  of  marketable  titles  in  suits  for  specific  performance,  and  defending 
it,  says:  "It  must  be  remembered  that  the  judgment  of  the  court  in  such 
an  action  is  in  personam  and  not  in  rem;  that  it  hinds  only  those  who  are 
parties  to  the  action  and  those  claiming  through  them,  and  in  no  way  decides 
the  question  in  issue  as  against  the  rest  of  the  world  (Oshorne  v.  Rowlett.  13 
Ch.  D.  781),  and  that  doubts  on  the  title  of  an  estate  are  often  questions 
liable  to  be  discussed  between  the  owner  of  the  estate  and  some  third  person 
not  before  the  court,  and,  therefore,  not  hound  by  its  decision.  Olass  v. 
Richardson,  9  Ha.  701.  If,  therefore,  there  be  any  reasonable  chance  that 
some  third  person  may  raise  a  question  against  the  owner  of  tlie  estate  after 
the  completion  of  the  contract,  the  court  may  consider  this  to  be  a  circum- 
stance which  renders  the  bargain  a  hard  one  for  the  purchaser,  and  one  which 
in  the  exercise  of  its  discretion,  it  will  not  compel  him  to  execute.  Though 
every  title  must  in  itself  lie  either  good  or  had,  there  must  be  many  titles 
which  the  courts  cannot  pronounce  with  certainty  to  belong  to  either  of  these 
categories  in  the  absence  of  the  parties  interested  in  supporting  both  alter- 
natives, and  without  having  heard  the  evidence  they  might  have  to  produce. 
and  the  arguments  they  might  be  able  to  urge;  and  it  is  in  the  absence  of 
these  parties  that  the  question  is  generally  agitated  in  proceedings  for  specific 
performance.  The  court  when  fully  informed  Tiinst  know  whether  a  title 
he  good  or  bad;  when  partially  informed,  it  often  may  and  ought  to  doulM." 
The  reasoning  of  the  learned  author  is  satisfactory  so  far  as  it  applies  to 
a  case  where  the  doubt  as  to  the  title  turns  upon  facts  as  to  which  the 
court  Is  not  informed,  l>ut  does  not  appear  to  reach  cases  where  the  doubt 
turns  upon  a  mere  quest  inn  of  law,  the  court  being  at  all  times  presumed  to 
know  the  law. 

"Chesman  v.  dimming*.  142  Mass.  65,  7  N.  E.  Rep.  13,  citing  Sohier  v. 
Williams,  1  Curt.  (C.  C.)  479;  Butts  v.  Andrews.  136  Mass.  -2-1  \  •.  Cornell 
v.  Andrews,  8  Stew.  (N.  J.  Eq.)  7,  9  id.  321  ;  f;ills  v.  Well-.  :•!»  Md.  492; 
People  v.  Stock  Brokers'  Building  Co.,  92  N  Y  IB]  fining  v.  Oakland,  etc., 
8oc.,  17  Mich.  230,  75  N.  W.  Rep.  4«2:  l.ndd  v.  \\Yi-knpf.  IW  Minn.  29,  64 
N.  W.  Rep.  99;  Matthews  v.  Lightner,  85  Minn.  333,  88  N.  W.  l!,-p.  992. 


OF    DOUBTFUL    TITLES.  787 

the  title  is  defective,79  though,  of  course,  the  rights  of  persons  not 
before  the  court  cannot  be  concluded  by  such  an  adjudication. 
The  uncertainty  as  to  what  judgment  another  court  may  render 
upon  the  same  state  of  facts  or  question  of  law  is  that  which  makes 
the  title  doubtful. 

In  some  of  the  American  States,  under  modern  systems  of  civil 
procedure  in  which  legal  and  equitable  relief  are  administered  in 
one  and  the  same  form  of  action,  the  purchaser,  when  sued  for  the 
purchase  money,  or  the  vendor,  when  the  purchaser  objects  that 
the  title  is  doubtful,  is  permitted  to  bring  in,  as  parties,  all  persons 
who  could,  if  such  objection  be  well  founded,  assert  an  adverse 
interest  in  the  premises,  so  that  the  court  may  pronounce  a  judg- 
ment or  decree  in  respect  to  the  matter  in  controversy,  which  will 
be  final  and  conclusive  upon  all  parties  in  interest,80  except,  of 
course,  such  as  are  not  sui  juris.  In  those  States  in  which  the 
separate  equitable  jurisdiction  is  maintained,  no  reason  is  per- 
ceived why  the  vendor  should  not  be  permitted  to  adopt  such  a 
course  in  any  case  in  which  he  might  maintain  a  bill  to  quiet  his 
title  as  against  an  adverse  claimant. 

In  a  case  in  which  the  vendor,  claiming  under  a  tax  deed,  had 
obtained  a  judgment  quieting  his  title  against  certain  persons 
having  vested  interests  under  a  deed  by  which  contingent  interests 
in  others  were  created,  it  was  held  that  such  judgment  was  binding 
not  only  upon  the  defendants,  having  vested  interests  in  the 
estate,  but  upon  persons  not  then  in  being  who  might  afterwards 
become  entitled  in  remainder;  and,  hence,  that  the  existence  of 

79Lockman  v.  Reilly,  10  Abb.  N.  Cas.  (N.  Y.)   351. 

80 Cooper  v.  Singleton,  19  Tex.  267,  70  Am.  Dec.  333,  diet.;  Estell  v.  Cole, 
52  Tex.  170.  See  the  case  of  Batchelder  v.  Macon,  67  N.  C.  181,  where,  in  an 
action  for  the  purchase  money,  the  court,  \mder  a  provision  of  the  Code  of 
Civil  Procedure  authorizing  it  to  direct  new  parties  to  be  brought  in  when 
necessary  to  a  complete  determination  of  any  question  in  controversy,  ordered 
that  persons  out  of  whose  alleged  interest  in  the  premises  the  doubts  as  to 
the  title  arose,  be  made  parties  to  the  suit.  Simpson  v.  Hawkins,  1  Dana 
<Ky.),  303;  Harris  v.  Smith,  2  Dana  (Ky.),  11,  12;  Denny  v.  Wickliff,  1  Met. 
(Ky. )  216.  See,  also,  Story  Eq.  PI.  §  72,  for  general  principles  applicable 
to  this  point.  The  purchoser,  it  seems,  may  bring  in  third  parties  in  order 
to  clear  up  the  title,  but  it  is  not  incumbent  on  him  to  do  so;  that  is  the 
vendor's  duty.  Prewitt  v.  Graves,  5  J.  J.  Marsh.  (Ky.)  114,  126. 


788  MARKETABLE    TITLE    TO    REAL    ESTATE. 

such  contingent  interests  did  not  render  the  title  of  the  vendor 
unmarketable." 

§  288.  SPECIAL  AGREEMENTS  RESPECTING  THE  TITLE.  The 
right  of  a  purchaser  to  reject  a  doubtful  title  depends,  of  course, 
upon  the  terms  of  his  contract.82  He  will  have  no  such  right  if 
he  has  agreed  to  accept  the  title  such  as  it  is.83  On  the  other  hand, 
the  vendor  cannot  resort  to  parol  evidence  to  remove  doubts  about 
the  title,  if,  by  the  contract,  he  is  to  furnish  a  "good  title  of 
record,"  M  nor  if  he  obliges  himself  to  deliver  an  abstract  showing 

M  Mbtthews  v.  Lightner,  85  Minn.  333,  89  N.  W.  Rep.  992. 

*  Ante,  §  6.  A  stipulation  that  the  title  shall  be  "  first  class,"  means  simply 
that  it  shall  be  marketable.  Vought  v.  Williams.  120  N.  Y.  253,  24  N.  E. 
Rep.  195,  8  L.  R.  A.  5ftl,  17  Am.  St.  Rep.  634.  "  If  title  on  examination  be 
found  insufficient,"  in  a  contract  of  sale,  means  if  title  be  found  unsatis- 
factory, and  not  absolutely  bad.  Per  ROBINSON,  C.  J.  O'Reilly  v.  King,  28 
How.  Pr.  (X.  Y.)  408,  415. 

"Ante,  §  11;  Hume  v.  Pocock,  L.  R.,  1  Eq.  423,  662;  Brown  v.  Haff,  5 
Paige  (N.  Y.),  234,  241;  Crawley  v.  Timberlake,  2  Ired.  Eq.  (N.  C.)  460, 
dictum.  Powell  v.  Conant,  33  Mich.  396;  Price  v.  Immel,  48  Colo.  163,  109 
Pac.  941.  An  agreement  by  assignees  in  bankruptcy,  who  had  a  defective  title, 
that  the  purchaser  should  have  an  assignment  of  the  bankrupt's  interest  under 
such  title  as  he  lately  held  the  same,  was  held  to  be  sale  of  only  such  title 
as  the  assignees  had.  Freme  v.  Wright,  41  Madd.  364;  Molloy  v.  Sterne,  1 
Dru.  &,  Wai.  585;  Lethbridge  v.  Kirkman,  25  L.  J.  (X.  S.)  89;  Phipps  v. 
Child,  9  Drew.  709;  Taylor  v.  Martindale,  1  Y.  A  Coll.  C.  C.  658;  Nouaille 
v.  Flight,  7  Beav.  521.  An  agreement  to  sell  two  leases  and  the  trade,  as  the 
seller  held  the  same,  for  the  term,  and  that  the  purchaser  should  accept  the 
assignment  without  requiring  the  lessor's  title,  held  to  prevent  the  purchaser 
from  objecting  to  the  lessor's  title. 

"Coray  v.  Matthewson,  7  Lans.  (N.  Y.)  80;  Page  v.  Greely,  75  111.  400; 
Sheehy  v.  Miles,  93  Cal.  288,  28  Pac.  Rep.  1046;  Benson  v.  Shotwell,  87  Cal. 
49,  25  Pac.  Rep.  249.  Post,  g  289.  If,  by  the  express  terms  of  the  cointract, 
the  vendor  be  required  to  show  a  "  good  record  title,"  the  purchaser  may 
rescind  if,  by  reason  of  the  destruction  of  the  public  records  by  fire,  the 
vendor  be  unable  to  show  a  record  title.  Born  v.  Castle,  22  Cal.  App.  282, 
134  Pac.  347;  McDermott  v.  Chatfleld.  18  Cal.  App.  499,  123  Pac.  539.  In 
Jones  v.  Hanna,  (Tex.  Civ.  App.)  60  S.  W.  Rep.  279,  it  was  held  that  a 
purchaser,  who  had  merely  contracted  for  a  good  title  "  of  record,"  could 
not  object  to  the  title  on  the  ground1  of  facts  disqualifying  a  notary  to  take 
an  acknowledgment  of  a  deed  in  the  vendor's  chain  of  title,  inasmuch  as  the 
record  itself  showed  a  good  title,  and  the  objection  was  founded  on  matter 
dehort  the  record.  The  decision  seems  questionable;  the  same  reasoning  would 
prevent  an  objection  to  a  deed  in  the  chain  of  title  on  the  ground  of  lunacy, 
infancy,  or  other  disqualification  of  the  grantor. 


OF    DOUBTFUL    TITLES.  789 

a  good  title,85  nor  if  he  contracts  in  express  terms  that  the  title 
shall  be  free  from  incumbrances.86  If  the  contract  provides  that 
the  abstract  shall  show  a  marketable  title,  the  vendor  will  not  be 
permitted  to  show  by  evidence  aliunde  that  the  title  is  good,87  nor 
will  the  purchaser  be  required  to  go  outside  of  the  abstract  in 
examining  the  title.88 

An  agreement  to  "  give  a  good  and  sufficient  warranty  deed  and 
"abstract"  intends  a  merchantable  title  clear  upon  the  record 
and  not  requiring  litigation  to  complete  it.89 

The  purchaser  cannot  require  a  "perfect  record  title"  unless 

85  Ante,  §  6.    In  Smith  v.  Taylor,  .82  Cal.  534,  23  Pac.  Rep.  217,  it  was  held 
that  the  only  fair  interpretation  of  a  contract  providing  that  an  abstract  of 
title  should  be  delivered  by  the  vendor,  the  title  to  prove  good,  or  no  sale,  and 
purchase  money  paid  to  be  refunded,  was,  that  a  full  abstract  should  be  fur- 
nished showing  a  good  title  on  its  face,  and  that  if  such  abstract  did  not 
show  a  good  record  title,  the  purchaser  should  not  be  bound  to  make  any 
investigation  outside  of  the  abstract  or  to  take  the  chances  of  any  litigation 
which  the  abstract  showed  to  be  either  pending  or  probable,  and  that  evi- 
dence aliunde  was  not  admissible,  in  an  action  to  recover  back  the  purchase 
money  paid,  to  show  that  the  claims  of  persons  who  appeared,  by  the  ab- 
stract of  title,  to  be  asserting  adverse  title  to  the  land,  and  who  had  suits 
pending  in   respect  thereto,  were  groundless.     Taylor  v.   Williams,   2   Colo. 
App.  559,  31  Pac.  Rep.  504.    In  Oregon  an  agreement  by  the  vendor  to  furnish 
an  abstract  of  title  requires  him  to  furnish  an  abstract  showing  a  market- 
able title  based  on  a  patent  from  the  United  States.    McCarty  v.  Helbling,  73 
Oreg.  356,  144  Pac.  499. 

86  Evans  v.  Taylor,  177  Pa.  St.  286,  35  Atl.  Rep.  635.     An  agreement  to 
convey,  in  the  absence  of  any  reservation  or  exception  therein,  requires  the 
vendor  to  convey  a  marketable  title  free  from  incumbrances.     Ante,  §§  5,  6. 
Arentson  v.  Moreland,  122  Wis.   167,  90  N.  W.  790,  65  L.  R.  A.  973,   106 
Am.  St.  Rep.  951;   Curtis  Land  Co.  v.  Interior  Land  Co.,  137  Wis.  341,  118 
N*.  W.   853;    Dwight  v.   Cutler,   3  Mich.  566,   64  Am.  Dec.   105;   Dearth  v. 
Williamson,  2  Serg.  &  R.  (Pa.)  498,  7  Am.  Dec.  652. 

87  Parker  v.  Porter,  11  111.  App.  602;  Grow  v.  Taylor,  28  N.  D.  469,  137 
N.  W.  451 ;  Collins  v.  Delashmutt,  6  Oreg.  51 ;  Kane  v.  Rippey,  24  Oreg.  338, 
33  Pac.  936;   Lockhart  v.  Ferrey,  59  Oreg.   179,   115  Pac.  431;   Arnaud  v. 
Austin,  86  Oreg.  403.  167  Pac.  1017.    In  Hughes  v.  Adams,  55  Tex.  Civ.  App. 
249,  119  S.  W.  134,  the  purchaser  was  permitted  to  show  that  he  was  induced 
to  sign  the  contract  by  the  vendor's  explanation  of  what  was  meant  by  the 
provision  that  the  title  should  be  merchantable. 

88  Horn  v.  Butler,  39  Minn.  515,  40  N.  W.  Rep.  833,  dictum.     Coonrod  v. 
Studebaker,  53  Wash.  32,  101  Pac.  489. 

""Raddatz  v.  Christian,  (Neb.)   173  N.  W.  677, 


790  MAKKETABLE    TITLE    TO    KEAL    ESTATE. 

the  contract  so  provides.     The  title  may  be  perfect  though  not 
shown  to  be  so  by  the  public  records.90 

If  the  conditions  of  sale  provide  that  the  purchaser  shall  have 
time  to  examine  the  title,  and  that  if  he  be  not  satisfied  with  it,  he 
shall  not  be  required  to  complete  the  purchase,  the  purchaser  may 
abandon  the  contract  if  he  be  in  good  faith  dissatisfied  with  the 
title,  and  specific  performance  will  not  be  decreed  against  him, 
though  the  court  be  of  the  opinion  that  the  title  was  good.91  An 
agreement  that  the  title  shall  be  satisfactory  to  the  purchaser's 
attorney  will  justify  the  purchaser  in  rescinding  the  contract  if 
the  attorney  in  good  faith,  and  not  capriciously,  declare  himself 
dissatisfied  with  the  title.92  The  objections  of  the  attorney  must 

"Mundy  v.  Garland,  116  Va.  922,  83  S.  E.  491. 

"Swain  v.  Burnette,  89  Cal.  564,  26  Par.  Rep.  1093;  Averett  v.  Lips- 
combe,  76  Va.  404.  In  this  case  the  auctioneer  had  announced  at  the  sale 
that  any  purchaser  should  have  the  right  to  examine  the  title,  and  if  he  was 
not  satisfied  with  it  he  should  not  be  required  to  comply  with  the  terms  of 
the  sale.  BTRKS,  J.,  delivering  the  opinion  of  the  court,  said:  "It  is  imma- 
terial that  this  court  now  considers  that  the  vendors  were  and  are  able  to 
make  pood  title.  That  is  not  the  question.  The  contract  left  it  to  the 
purchaser  to  determine  for  himself  the  matter  of  title.  If,  on  examination, 
he  was  not  in  pood  faith  satisfied  with  the  title  he  was  not  to  be  bound.  The 
bargain  was  at  an  end."  Citinp  WiAJiams  v.  Edwards,  2  Sim.  78.  See,  also, 
Watts  v.  Holland.  86  Va.  909,  11  S.  E.  Rep.  1015;  Gish  v.  Moomaw,  (Va.) 
17  S.  E.  Rep.  324;  Giles  v.  Paxson,  40  Fed.  Rep.  283,  where  the  subject  is 
considered  at  length.  Meyers  v.  Coal  Co.,  219  Pa.  1,  67  Atl.  904;  Hollins- 
worth  v.  Colthurst.  78  Kan.  455.  96  Pac.  851,  130  Am.  St.  Rep.  382.  Where 
the  contract  provides  "  title  on  investigation  to  be  satisfactory  "  the  purchaser 
must  investigate  for  himself,  and  in  due  time  declare  his  determination.  Tay- 
lor v.  Williams,  45  Mo.  80.  When  the  vendor  refuses  to  perfect  the  title, 
insisting  that  he  sold  only  such  title  as  he  had,  but  the  contract  provided 
that  the  title  should  be  satisfactory  to  the  purchaser,  the  court  will  not 
undertake  to  determine  whether  his  objection  to  the  title  were  well-founded; 
he  may  declare  the  title  unsatisfactory  and  refuse  to  complete  the  contract. 
Boyd  v.  Woodbury  Co.,  122  Iowa,  455,  98  N.  W.  Rep.  274. 

Thurch  v.  Shanklin,  95  Cal.  626,  30  Pac.  Rep.  789;  Leach  v.  Rowley,  138 
Cal.  709.  72  Pac.  Rep.  403;  Pac.  Tel.  Co.  v.  Tel.  Co..  236  Fed.  877.  150 
C.  C.  A.  139;  Ma-Dennis  v.  Finch,  197  Ala.  76,  72  So.  352;  Karahdian  v. 
I^M-kett  (Colo.  App.);  Farm  Land  Mtge.  Co.  v.  Wilde,  41  Okl.  45,  136  Pac. 
1078;  Giles  v.  Union  L.  Co.,  (Tex.  Civ.  App.)  196  S.  W.  312;  Alwood  v. 
Pagan,  (Tex.  Civ.  App.)  134  8.  W.  765;  Leroy  v.  Harwood,  119  Ark.  418, 
178  8.  W.  427;  Whitener  Realty  Co.  v.  Ritter,  94  Ark.  263,  126  S.  W.  856. 
Parol  evidence  IH  not  admissible  1o  add  to  a  written  contract  for  the  sale  of 
land  a  provision  that  the  purchaser  should  accept  the  title  if  pronounced 


OF    DOUBTFUL    TITLES.  791 

be  reasonable  and  substantial,  and  not  merely  capricious  or  fanci- 
ful.93 If  the  parties  agree  that  the  contract  shall  be  void  and  the 
purchase  money  returned  if  the  purchaser's  counsel  shall  be  of 
opinion  that  the  title  is  bad,  and  the  counsel  pronounce  against 
the  title,  the  purchaser  may  reject  it,94  even  though  the  vendor  be 
able  to  remove  the  objections.95  But  such  an  opinion  will  not 
sustain  an  action  by  the  purchaser  for  breach  of  the  contract; 
he  must  show  the  title  to  be  bad.96 

On  the  other  hand,  an  agreement  that  the  title  shall  be  satis- 
factory to  the  purchaser  has  been  construed,  in  effect,  to  mean  that 
the  title  shall  be  such  as  he  should  be  satisfied  with,  and  that  such 

good  by  a  named«attorney.  lives  v.  Bank,  (Mo.  App.)  124  S.  W.  23;  Parsons 
v.  Kelso,  141  Mo.  App.  369,  125  S.  W.  227.  If  the  title  is  in  fact  good,  the 
purchaser  will  not  be  justified  in  rejecting  it  on  the  advice  of  his  attorney, 
in  the  absence  -of  any  provision  on  the  subject  in  the  contract.  Bodine  v. 
Taylor,  (Ark.)  218  S.  W.  374.  A  contract  provided  that  the  vendor's  title 
should  be  satisfactory  to  the  purchaser's  attorneys.  After  the  abstract  was 
furnished  the  attorneys  made  certain  requisitions  which  were  promptly 
honored  at  a  considerable  expense  to  the  vendor,  and  the  attorneys,  by  impli- 
cation, expressed  themselves  as  satisfied  with  the  title.  Held,  that  the 
attorneys  could  not  thereafter  arbitrarily  and  abruptly  declare  the  title 
unsatisfactory  and  the  contract  at  an  end.  Boyd  v.  Hallowell,  (Minn.)  62 
X.  W.  Rep.  125.  Where  the  agreement  was  that  the  title  should  be  satis- 
factory to  a  certain  title  insurance  company  it  was  said  that  if  the  title  insur- 
ance company  reported  the  title  imperfect  the  purchaser  could  recover  his 
deposit.  Presbrey  v.  Kline,  20  D.  C.  513,  529.  But,  contra,  in  a  case  in 
which  the  report  of  the  title  company  was  founded  on  a  mistake  of  fact. 
Hoffman  v.  Colgan,  25  Ky.  Law  R.  98,  74  S.  W.  Rep.  724.  It  is  competent 
for  the  parties  to  contract  that  the  title  shall  be  such  as  would  be  pronounced 
good  and  merchantable  by  any  reputable  attorney  in  a  named  city.  Ellis  v. 
Lockett,  100  Ga.  719,  28  S.  E.  Rep.  452. 

9S Griffith  v.  Bradford,   (Tex.  Civ.  App.)   138  S.  W.  1072. 

8*Parkside  Realty  Co.  v.  McDonald,  166  Cal.  426,  137  Pac.  21;  Allen  v. 
McKeon,  111  N.  Y.  Supp.  328,  127  App.  Div.  277.  A  provision  that  the  title 
shall  be  approved  by  a  named  title  company  imposes  no  condition  on  the 
vendor  unless  the  purchaser  has  the  title  examined  by  that  company.  East- 
man v.  Home,  125  X.  Y.  Supp.  553,  141  App.  Div.  12. 

^Delafield  v.  James,  18  Abb.  Pr.  (N.  Y.)  221,  27  How.  Pr.  357,  citing 
Williams  v.  Edwards,  3  Sim.  78,  2  Eng.  Ch.  Rep.  79.  See  Thompson  v. 
Avery,  (Utah)  39  Pac.  Rep.  829;  Ives  v.  Bank  (Mo.  App.)  124  S.  W.  23.  If 
the  vendor  agrees  to  furnish  the  certificate  of  a  particular  title  company 
showing  title  in  him,  and  the  company  refuses  to  make  the  certificate  on 
grounds  not  involving  the  sufficiency  of  the  title,  the  purchaser  is  nevertheless 
entitled  to  rescind.  Taggart  v.  Graham,  (Cal.  App.)  179  Pac.  688. 

86 1  Sugd.  Vend.  (8th  Am.  ed.)  537.    Canfield  v.  Gilbert,  4  Esp.  221. 


792  MARKETABLE    TITLE    TO    REAL    ESTATE. 

an  agreement  does  not  authorize  him  to  make  capricious  or  unrea- 
sonable objections,97  nor  constitute  him  the  sole  judge  of  the 
sufficiency  of  the  title,98  nor  deprive  the  vendor  of  the  right  to 
perfect  the  title  where  time  is  not  of  the  essence  of  the  contract,9* 
nor  justify  the  purchaser  in  rejecting  the  title  by  a  simple  expres- 
sion of  dissatisfaction.1  The  dissatisfaction  of  the  purchaser 
must  be  founded  upon  a  valid  and  legal  objection.2  Of  course 
the  parties  may  contract  if  they  choose,  that  the  purchaser  may 
abandon  the  sale  arbitrarily  and  without  assigning  reasons  there- 
for, but  such  a  construction  will  not  be  given  to  the  agreement 
that  the  title  shall  be  satisfactory  to  the  purchaser,  agreeably  to 
the  maxim  ut  res  magis  valeat  quant  pereat. 

"Dart's  Vend.  (5th  ed.)  158.  w*here  it  is  said  that  such  an  agreement  means 
that  the  title  shall  be  marketable.  Lord  v.  Stevens,  1  Yo.  &  Coll.  Ex.  222; 
Folliard  v.  Wallace,  2  Johns.  (X.  Y.)  395;  Moot  v.  Business  Men's  Asso.,  157 
X.  Y.  201,  52  X.  E.  Rep.  1;  Fagan  v.  Daviwn,  2  Duer  (X.  Y.),  153;  Kirk- 
land  v.  Little,  41  Tex.  456;  Taylor  v.  Williams,  45  Mo.  80.  Where  the  con- 
tract provides  that  the  vendor  shall  give  and  the  purchaser  accept  such  title 
as  a  certain  title  company  should  approve,  and  the  company  disapproves  the 
title  offered,  the  vendor  will  not  be  permitted  to  show  that  the  title  is  mar- 
ketable unless  approval  by  Ihe  company  was  prevented  by  the  vendee.  Flan- 
nipan  v.  Fox,  26  N.  Y.  Supp.  48,  6  Misc.  Rep.  132,  See,  generally,  upon  the 
proposition  that  a  contract  to  do  a  thing  to  the  satisfaction  of  another  must 
be  given  a  reasonable  construction,  and  that  such  person  cannot  arbitrarily 
declare  himwlf  dissatisfied  with  the  performance.  Thomas  v.  Fleming,  26 
N.  Y.  33;  Brooklyn  City  v.  Brooklyn  City  R.  Co.,  47  X.  Y.  475,  7  Am.  Rep. 
460;  Bowery  Xat.  Bank  v.  Mayor,  63  N.  Y.  336;  Miesell  v.  Ins.  Co.,  76  X.  Y. 
115;  Boiler  Co.  v.  Gorden,  101  N.  Y.  387,  4  N.  E.  Rep.  749;  Dill  v.  Noble, 
116  X.  Y.  230,  22  X.  E.  Rep.  406. 

Rrcmt  C<i*es.  Dillinger  v.  Ogden,  244  Pa.  20,  90  Atl.  446,  Ann.  Caa.  1915 
C.  533;  Allen  v.  MrKcon,  111  X.  Y.  Supp.  328.  127  App.  Div.  277;  Canaday  v. 
Miller.  102  Kan.  577,  171  Pac.  6&1 ;  Singleton  v.  Cuttino.  105  S.  C.  44,  89 
8.  E.  385;  Dean  v.  Williams.  56  Wash.  614,  106  Pac.  130;  Knisely  v.  Leath. 
(Mo.)  178  S.  W.  453.  The  question  of  the  good  faith  of  the  attorney  in 
giving  his  opinion,  is  for  the  jury.  Clark  v.  Asbury,  (Tex.  Civ.  App.)  134 
S.  W.  286. 

"Folliard  v.  Wallace,  2  Johns.  (X.  Y.)  305,  per  KENT,  Ch.;  Regney  v. 
Coles,  6  Bomr.  (X.  \.\  479;  Wright  v.  Suydam,  72  Wash.  587,  131  Pac. 
239.  An  agreement  to  furnish  a  marketable  title  free  from  defects,  does  not 
imply  that  the  title  shall  be  satisfactory  to  the  purchaser  or  his  attorney. 
Wieman  v.  Steffen.  ISO  Mo.  App.  584,  172  N.  W.  472. 

"Anderson  v.  Stranbergcr.  92  Cal.  38,  27  Pac.  Rep.  1005. 

•Hr.ir.M.-.-  v.  1'ndcrhill,  37  N.  J.  L.  309;  Curtis  v.  Hawley,  85  111.  App. 
429. 

'Kirkland  v.  Little,  41  Tex.  456. 


OF    DOUBTFUL,    TITLES.  793 

An  agreement  to  furnish  a  correct  and  satisfactory  abstract  does 
not  mean  merely  an  abstract  which  correctly  and  satisfactorily 
shows  the  state  of  the  record  title.  Hence,  the  abstract  is  insuffi- 
cient if  it  shows  the  title  to  be  outstanding  in  a  stranger.3  Nor 
is  the  purchaser  bound  by  an  abstract  which  shows  a  perfect  title 
in  the  vendor  if,  in  fact,  the  title  be  bad.  He  cannot  be  required 
to  take  the  title  if  facts  outside  of  the  record  show  it  to  be  bad.4 
In  a  case  in  which  the  parties  placed  the  vendor's  deed  and  the 
purchaser's  notes  in  the  hands  of  a  custodian  to  be  delivered  when 
the  vendor  furnished  evidence  of  title  satisfactory  to  the  custodian, 
and  the  vendor  failed  to  inform  the  custodian  of  the  existence  of 
an  attachment  lien  on  the  property,  it  was  held  that  the  vendor 
could  not  compel  specific  performance  on  the  ground  that  the  cus- 
todian had  expressed  himself  as  satisfied  with  the  title.5  Where 
the  vendor  agreed  to  give,  and  the  vendee  to  accept,  such  a  title 
as  would  be  satisfactory  to  a  certain  title  insurance  company,  and 
the  company  expressed  a  willingness  to  insure  the  title,  it  was 
held  that  the  vendee  could  not  thereafter  insist  on  an  objection 
to  the  title.6 

Where  the  contract  provided  that  the  purchaser  should  be  the 
exclusive  judge  of  the  sufficiency  of  the  title,  it  was  held  the  right 
thereunder  to  pass  upon  and  reject  the  title,  in  good  faith,  passed 
to  an  assignee  of  the  purchaser.7 

Stipulations  which  exclude  the  right  of  the  vendee  to  call  for  a 
good  title,  must  be  clear  and  explicit.  Where  no  title  whatever 
can  be  given,  a  court  of  equity  will  not  compel  specific  perform- 
ance by  the  vendee  merely  because  of  a  stipulation  by  him  that 
there  should  be  no  objection  to  the  title.8 

The  fact  that  the  vendor  is  to  convey  by  quit-claim  does  not 
relieve  him  from  the  obligation  to  show  that  his  title  is  free  from 
defects.9 

3  Curtis  v.  Hawley,  85  111.  App.  429. 

"Jaeger  v.  Harr,  62  Oreg.  16,  123  Pac.  61. 

5  Wolcott  v.  Johns,  7  Colo.  App.  360,  44  Pac.  675. 

'  Pope  v.  Thrall,  68  N.  Y.  Supp.  137,  33  Mhc.  Rep.  44. 

7 1ST.  Y.  Life  Ins.  Co.  v.  Gilhooly,  61  N".  J.  Eq.  118,  47  Atl.  494. 

8  Simmons  v.  Zimmerman,  144  Cal.  256,  79  Pac.  Rep.  451. 

"  Wallach  v.  Riverside  Bank.  206  N".  Y.  434,  100  N".  E.  50. 

100 


794  MAKKKT  Mil.!:    TITLE    TO    REAL    ESTATE. 

§  280.  PAROL  EVIDENCE  TO  REMOVE  DOUBTS.  It  has  bccil 
frequently  held  that  if  parol  evidence  should  be  necessary  to 
remove  a  doubt  as  to  the  validity  and  sufficiency  of  the  vendor's 
title,  the  purchaser  cannot  be  compelled  to  complete  the  contract.10 
lie  cannot  be  required  to  take  a  doubtful  title  which  he  must 
fortify,  if  impugned,  by  resorting  to  evidence  perishable  in  its 
nature,  and  possibly  unavailable  to  him  when  the  necessity  for  it 
occurs.11  Accordingly  there  are  many  decisions  to  the  effect  that 
tho  vendor  will  not  be  permitted  to  supplement  the  abstract  of 
title  with  affidavits  stating  facts  necessary  to  complete  his  title 
in  a  case  which,  by  the  express  terms  of  the  contract,  he  is  required 
to  furnish  an  abstract  showing  a  good  record  title.12  Tt  must  be 

"2  Beach  Mod.  Eq.  .Tur.  5  608.  Seymour  v.  Delancey,  1  Hopk.  (X.  Y.)  436, 
H  Am.  Dec.  552;  Moore  v.  Williams.  115  X.  Y.  586,  22  X.  K.  Rep.  233,  5 
L.  R.  A.  654,  12  Am.  St.  Rep.  844;  Irving  v.  Campbell,  121  X.  Y.  353.  24 
X.  E.  Rep.  821 :  McPherson  v.  Sohade,  14f>  X.  Y.  16.  43  X.  E.  Rep.  527;  Holly 
v.  Hirsch.  l."5  X.  Y.  590,  32  X.  E.  Rep.  709;  Blanek  v.  Sadlier,  153  X.  Y. 
556.  47  X.  E.  Rep.  921:  Watson  v.  Boyle.  55  Wash.  141,  104  Par.  147;  Becker 
v.  Erickson,  142  111.  App.  133;  Wilson  v.  Korte.  91  Wash.  30,  157  Pac.  47: 
Tausk  v.  Siry,  180  X.  Y.  Supp.  439,  11O  Misc.  Rep.  514.  A  purchaser  cannot 
he  compelled  to  accept  a  title  dependent  upon  an  estoppel  I'M  pais.  Mullitis 
v.  Aiken.  2  Heisk.  (Tenn.)  535;  Topp  v.  White,  12  Heisk.  (Tenn.)  165. 
Where  the  question  was  whether  certain  testimony  sufficiently  established 
the  execution  of  a  deed  which  would  supply  a  missinp  link  in  the  chain 
of  title,  the  title  was  held  unmarketable,  Griffin  v.  Cunninpham,  19  Grat. 
(Va.)  571.  So,  also,  where  parol  proof  of  a  waiver  of  a  covenant  not  to 
assipn  a  lease  was  necessary.  Murray  v.  Harway,  56  X.  Y.  3.17.  A  tide 
that  is  imperfect  of  record  and  can  be  completed  only  by  judicial  decree 
founded  upon  parol  evidence  of  extrinsic  facts  which  may  or  may  not  lx> 
disputed,  is  not  a  clear  title  and  a  vendee,  who  is  entitled  by  his  contract  to 
a  marketable  record  title,  is  not  bound  to  accept  the  same.  Geray  v.  Mah- 
nomen  I^aml  Co.  (Minn.)  173  X.  W.  871. 

"2  Beach  Mod.  Eq.  Jur.  5  60R.  Campbell  v.  Harsh,  31  Okla.  436,  122  Pac. 
127;  Deseumeur  v.  Rondel,  76  X.  J.  Eq.  394,  74  Atl.  703.  In  the  case  of 
Fahy  v.  Cavanaph,  59  X.  J.  Eq.  278,  44  Atl.  Rep.  154,  the  question  was 
whether  a  will  had  ln-en  properly  executed  —  a  fact  which  could  be  proven 
only  by  the  tentimony  of  the  two  HiihMcrihinp  witnesses.  The  title  depended 
entirely  and  exclusively  upon  what  their  testimony  mipht  be,  and  this  wan 
held  to  render  the  title  unmarketable. 

"Ante,  ft  288;  Lake  Erie  L.  Co.  v.  Chilinski,  197  Mich.  214.  163  X.  W. 
929;  fpton  v.  Smith,  183  Town  588.  166  X.  W.  208;  Klinjf  v.  Realty  Co., 
166  Mo.  App.  190.  14R  S.  W.  203;  Knox  v.  Desplain,  156  111.  App.  134: 
XichoNon  v.  Lieher,  (Tex.  Civ.  App.)  153  S.  W.  641.  In  Campbell  v.  Harsh. 
31  Okl.  436,  122  Pac.  127,  it  was  held  that  the  vendor  could  not  supplement 


OF    DOUBTFUL    TITLES.  795 

observed,  however,  that  a  title  is  not  necessarily  doubtful  simply 
because  it  requires  to  be  supported  by  parol  testimony.  As  a 
general  rule,  for  example,  title  by  inheritance  depends  principally 
upon  matters  in  pods,  or  facts  resting  in  the  knowledge  of  wit- 
nesses.13 If  those  facts  be  clearly  sufficient  to  establish  the  right 
of  the  vendor  as  heir,  it  is  apprehended  that  the  purchaser  could 
not  object  to  the  title  simply  because  it  could  not  be  established 
by  record  evidence.14  Therefore,  if  the  contract  does  not  call  for 
a  title  perfect  upon  the  record,  the  title  may  be  shown  by  oral 

the  abstract  with  affidavits  showing  who  were  the  heirs  of  a  party  through 
whom  he  claimed.  A  provision  for  a  "good  title  free  from  incumbrances 
as  shown  by  a  complete  abstract  of  title,"  requires  a  title  disclosed  by  the 
records  and  not  based  on  ex  parte  affidavits.  Colpe  v.  Lindblom,  (Wash.) 
106  Pac.  634;  Crosby  v.  Wynkoop,  56  Wash.  475,  106  Pac.  175.  Where  the 
abstract  is  to  show  a  merchantable  title,  it  cannot  be  supplemented  with 
affidavits,  oral  proof,  or  writings  not  recordable.  Moser  v.  Tucker,  (Tex. 
Civ.  App.)  195  S.  W.  259.  The  vendor  cannot  supplement  the  abstract  with 
ex  parte  affidavits  showing  the  facts  necessary  to  support  title  by  adverse 
possession.  Adkins  v.  Gillespie,  (Tex.  Civ.  App.)  189  S.  W.  275.  The  ab- 
stract cannot  be  supplemented  with  an  affidavit  that  "  Krups,"  a  grantee  in 
the  chain  of  title,  was  the  same  person  as  "  Krepps,"  by  whom  the  next 
grant  was  executed.  Harris  v.  Van  Vranken,  32  N.  D.  238,  155  N".  W.  65. 
Affidavits  are  not  admissible  to  supplement  the  abstract,  though  admitted 
to  record  under  a  statute  which  made  them  prima  facie  evidence  of  facts 
stated  therein.  Bradway  v.  Miller,  200  Mich.  648,  167  N.  W.  15. 

"Barrette  v.  Whitney,  36  Utah  574,  106  Pac.  522,  37  L.  R.  A.  (N.  S.) 
368. 

"See  2  Sugd.  Vend.  (8th  Am.  ed.)  24  (425),  where  it  is  said:  "If,  on  the 
face  of  the  abstract,  the  vendor  has  shown  a  sixty  years'  title,  and  if,  for  the 
purpose  of  supporting  that  title,  it  is  necessary  to  show  that  such  a  person 
died  intestate,  or  any  other  fact, —  if  the  facts  are  alleged  with  sufficient 
specification  on  the  abstract  —  then  that  abstract  shows  a  good  title,  although 
the  proof  of  the  matters  shown  may  be  the  subject  of  ulterior  investigation." 
While  it  may  not  appear  that  a  vendor  claiming  as  sole  heir  is  not  in  fact 
such,  yet,  if  it  cannot  be  made  to  appear  beyond  a  reasonable  doubt  that 
there  is  in  fact  no  other  heir  to  the  property,  the  title  will  be  held  unmar- 
ketable. Walton  v.  Meeks,  120  N.  Y.  79,  82,  23  N".  E.  Rep.  115;  Vognild  v. 
Voltz,  141  111.  App.  45.  In  Van  Gundy  v.  Shewey,  90  Kan.  253,  133  Pac. 
7~20,  47  L.  R.  A.  (N.  S.)  645,  it  was  held  that  the  abstract  might  be  supple- 
mented with  the  affidavits  of  credible  persons,  showing  such  facts  as  heirship, 
intestacy,  and  capacity  to  convey.  This  case  was  distinguished  in  Beeler  v. 
Sims,  91  Kan.  757,  139  Pac.  371,  where  held  that  the  objection  of  an  out- 
standing title  in  fee  could  not  be  removed  by  affidavits. 


796  MARKETABLE    TITLE    TO    REAL    ESTATE. 

or  other  evidence  outside  the  record  to  be  marketable  beyond  any 
reasonable  doubt.15 

It  has  been  frequently  held  that  a  sale  of  lands  implies  a  contract 
on  the  part  of  the  vendor  that  the  title  shall  be  fairly  deducible 
of  record.16  It  has  also  been  held  that  a  purchaser  cannot 
be  required  to  accept  a  title  which  he  cannot,  by  the  record,  show 
to  be  valid  if  attacked.17  Both  of  these  statements  are  to  be 
qualified,  it  is  apprehended,  to  this  extent,  namely,  that,  in  those 
States  in  which  the  registration  of  deeds  is  necessary  to  their 
validity,  the  vendor  need  only  show  a  prima  facie  valid  record 
title."  The  record  title  may  be  apparently  perfect,  though  in 
fact  worthless,  for  some  conveyance  in  the  vendor's  chain  of  title 
may  have  been  inoperative  to  pass  the  title  by  reason  of  the 
infancy,  coverture  or  lunacy  of  the  grantor,  or  for  some  other 
reason  which  the  record  would  not  disclose;  yet  it  would  hardly 
be  contended  that  the  vendor  must  show  affirmatively  the  com- 
petency of  every  grantor  in  his  chain  of  title,  or  the  non-existence 
of  any  other  matter  in  pais  which  would  invalidate  the  title. 
Of  course,  an  unexplained  break  in  the  record  chain  of  title  would 
render  the  title  doubtful  and  such  as  the  purchaser  could  not  bo 
required  to  accept.19  But  it  is  obvious  that  such  a  break  may  be 
satisfactorily  explained  so  as  to  leave  no  imputation  upon  the  title, 
as  where  the  estate  passed  by  descent,  instead  of  purchase,  from 
one  of  the  vendor's  predecessors  in  title  to  another;  and  that  the 
title  will  not  be  rendered  unmarketable  by  the  fact  that  parol 
evidence  must  be  resorted  to  for  that  purpose.  If  the  fact  or 

"Lamotte  v.  Steidinger,  266  111.  600,  107  X.  E.  850;  Attebury  v.  Blair,  244 
111.  363,  01  X.  E.  475,  135  Am.  St.  Rep.  342;  Morse  v.  Stober  (Mass.)  123 
N.  E.  780;  Bachman  v.  Knnis  R,  E.  Co.,  190  Mo.  App.  674,  204  S.  W.  1115; 
Barrette  v.  Whitney,  36  Utah  574,  106  Pac.  522,  37  L.  R.  A.  (N.  S.)  368. 

'•Ante,  |  5.  Turner  v.  McDonald,  76  Cal.  180,  18  Pac.  Rep.  202;  Reynolds 
v.  Borel,  86  Cal.  538.  25  Par.  Rep.  67;  Meekg  v.  Garner,  83  Ala,  17,  8  So.  Rep. 
378;  Allen  v.  Globe  Milling  Co.,  156  Cal.  286,  104  Pac.  305. 

"  Calhoun  v.  Belden,  3  Bush  iKy.  i.  674,  a  case  in  which  all  the  vendor's 
record  evidences  of  title  had  been  destroyed  in  a  fire  which  consumed  the 
register 'H  office. 

•Hollifield  T.  Landrum,  (Tex.  Civ.  App.)  71  8.  W.  Rep.  979,  citing  the 
text. 

"Wilson  v.  Jeffries,  4  J.  J.  Me  (Ky.)  494. 


OF    DOUBTFUL    TITLES. 


797 


facts  upon  which  the  title  depends  be  of  a  nature  not  susceptible 
of  proof,  the  title  will  be  deemed  unmarketable.20  This  rule  was 
applied  in  a  case  where  the  purchaser,  to  sustain  his  title,  would 
be  required  to  prove  a  negative,  namely,  that  the  vendor  had  not 
committed  an  act  of  bankruptcy,21  or  that  a  certain  deed  was  not 
fraudulent.22 

A  title  dependent  on  a  fact  must  be  regarded  as  marketable 
where  the  fact  is  so  conclusively  proved  in  a  suit  by  the  vendor 
for  specific  performance,  that  a  verdict  against  the  existence  of 
the  fact  would  not  be  allowed  to  stand  in  a  court  of  law,  and 
where  there  is  no  reasonable  ground  for  apprehending  that  the 
same  fact  cannot  be  in  like  manner  proved,  if  necessary,  at  any 
time  thereafter  for  the  protection  of  the  purchaser.23 

When  the  purchaser  objects  to  specific  performance  on  the 
ground  that  the  title  is  doubtful,  the  court  may  of  course  inquire 
into  the  facts  upon  which  the  objection  is  rested,  for  the  purpose 
of  determining  whether  the  title  is  so  doubtful  that  the  purchaser 
will  not  be  required  to  take  it.24  If  satisfactory  means  are  at 
hand  for  investigating  and  removing  the  doubt,  the  court  will 
decree  specific  performance.25  Defects  in  the  record  or  paper 
title  may  be  cured  or  removed  by  parol  evidence,  and  the  pur- 
chaser compelled  to  take  the  title.26  The  vendor's  bill  for  specific 

Ml  Sugd.  Vend.  (8th  Am.  ed.)  594.  Smith  v.  Death,  5  Madd.  371,  where 
the  question  was  whether  a  certain  devisee  had  been  brought  up  as  a  member 
of  the  Church  of  England  and  had  been  a  constant  frequenter  thereof. 
Shriver  v.  Shriver,  86  N.  Y.  575. 

21  Lowe  v.  Lush,  14  Ves.  547. 

M  Hartly  v.  Smith,  Buck  Bank.  Gas.  360. 

23  Barger  v.  Gery,  64  N.  J.  Eq.  263,  53  Atl.  Rep.  483. 

24 1  Sugd.  Vend.  (8th  Am.  ed.)  589.  Osbaldiston  v.  Askew,  1  Russ.  160; 
Bentley  v.  Craven,  17  Beav.  204;  Seymour  v.  Delancey,  1  Hopk.  (N.  Y.)  436, 
14  Am.  Dec.  552,  where  the  court  directed  an  issue  at  law  to  ascertain  cer- 
tain facts  from  which  it  might  be  determined  whether  or  not  the  title  was 
marketable.  Hedderley  v.  Johnson,  42  Minn.  443,  44  N.  W.  Rep.  527. 

25  Kostenbader  v.  Spotts,  80  Pa.  St.  430;  Hedderley  v.  Johnson,  42  Minn. 
443,  44  N.  W.  527 ;  Vognild  v.  Voltz,  141  111.  App.  45. 

2*Hellreigel  v.  Manning,  97  N.  Y.  56,  citing  Seymour  v.  Delancey,  Hopk. 
(N.  Y.)  436,  14  Am.  Dec.  552;  Miller  v.  Macomb,  26  Wend.  (N.  Y.)  229; 
Fagen  v.  Davison.  2  Duer  (N.  Y. ),  153;  Brooklyn  Park  Com.  v.  Armstrong, 
45  N".  Y.  234;  Murray  v.  Harway,  56  N.  Y.  337;  Shriver  v.  Shriver,  86 
N.  Y.  575;  Talifer  v.  Falk,  173  N.  Y.  Supp.  251,  105  Misc.  Rep.  6.  Parol 


798  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

performance  will  bo  retained  until  the  doubts  about  the  title  are 
either  removed  or  confirmed.27  But  it  is  conceived  that  such  evi- 
dence must  convince  the  court  that  there  is  no  probability  that 
the  title  of  the  purchaser  will  ever  be  attacked  by  a  stranger 
having  color  of  title,  or  that,  if  attacked,  the  purchaser  must,  of 
necessity,  have  at  hand  the  means  of  showing  that  the  attack 
cannot  be  sustained. 

§  200.  EQUITABLE  TITLE.  ADVERSE  CLAIMS.  To  the  prin- 
ciple that  a  purchaser  cannot  be  required  to  complete  the  contract 
when  there  are  doubts  about  the  title  which  can  only  be  removed 
by  parol  proof,  has  Jbeen  referred  those  decisions  which  establish 
the  rule  that  a  purchaser  cannot  be  compelled  to  take  an  equitable 
title,28  or  a  title  which  is  controverted  in  good  faith  by  an  adverse 

evidence  is  admissible,  on  behalf  of  the  vendor,  to  correct  a  mistake  in  the 
name  of  a  grantee  in  the  chain  of  title.  Lynch  v.  Ropers,  134  N.  Y.  Supp. 
1071,  150  App.  Div.  311.  Under  a  statute  providing  that  affidavits  explain- 
ing defects  in  a  chain  of  title  may  he  recorded,  the  purchaser  may  be  re- 
quired to  take  a  title  the  objections  to  which  are  satisfactorily  removed  by 
affidavits  put  on  record  by  the  vendor.  Hantz  v.  May,  137  Iowa  267,  114 
X.  W.  1042. 

"Seymour  v.  Delancey,  Hopk.  Ch.   (N.  Y.)  436  (495)  ;  14  Am.  Dec.  552. 

»1  Sugd.  Vend.  (8th  Am.  ed.)  579.  Abel  v.  Hethcote,  2  Ves.  Jr.  100; 
Cooper  v.  Denne,  1  Ves.  Jr.  565;  Freeland  v.  Pearson,  L.  R.,  7  Eq.  246; 
Morris  v.  Mowatt.  2  Paige  Ch.  (N.  Y.)  586,  22  Am.  Dec.  661;  Waggoner  v. 
Waggoner,  3  T.  B.  Mon.  (Ky.l  556;  Jones  v.  Taylor,  7  Tex.  240,  56  Am. 
Dec.  48;  Littlefield  v.  Tinsley,  26  Tex.  353;  Ragan  v.  Gaither,  11  Gill  &  J. 
(Md.i  472;  Hendricks  v.  Gillespie,  31  Grat.  (Va.)  181.  194;  Newberry  v. 
French.  98  Va.  479,  57  N.  K.  Rep.  381;  Reed  v.  Noe,  9  Yerg.  (Tenn.)  282, 
especially  where  the  equity  is  controverted.  Ankeny  v.  Clark,  14S  I".  S.  345, 
a  case  in  which  the  vendor,  a  railroad  company,  had  not  received  a  convey- 
ance from  the  government  by  reason  of  its  failure  to  pay  the  costs  of  sur- 
veying the  land.  Coburn  v.  TIaley,  57  Me.  347.  A  purchaser  cannot  be 
required  to  take  an  equitable  title  when  the  facts  constituting  the  equity  rest 
only  in  parol  and  are  liable  to  be  shortly  incapable  of  proof.  Owings  v.  Bald- 
win. S  Gill  (Md.),  337.  While  the  purchaser  cannot  l>e  compelled  to  take  an 
equitable  title,  it  is  to  be  remembered-  that  the  vendor  will,  if  time  is  not 
material,  be  allowed  time  in  which  to  get  in  the  legal  title.  Post,  eh.  32. 
Andrew  v.  Bahcock.  (Conn.)  26  Atl.  Rep.  715.  In  Jones  v.  Haff,  36  Tex. 
678,  it  would  seem  at  the  first  glance  that  the  court  held  that  the  purchaser 
could  be  compelled  to  take  an  equitable  title,  but  a  careful  examination  of 
the  case  shows  that  the  vendor's  title  was  really  legal.  The  title  of  a  remote 
predecessor  of  the  vendor  had  been  equitable  only,  consisting  of  a  "  bond  for 
title,"  but  there  had  been  mesne  conveyances  down  to  the  vendor,  and  he  was 
in  possession  under  a  conveyance.  Nothing  more  seems  to  have  been  decided 


OF    DOUBTFUL    TITLES.  799 

claimant.29  It  would  seem,  however,  that  such  titles  are  not 
merely  "  doubtful "  in  the  technical  sense  of  that  term,  but  abso- 
lutely defective.  It  is  obvious  that  a  title  cannot  be  rendered 
unmarketable  by  a  mere  naked  adverse  claim  to  the  premises 
without  color  of  title;  otherwise  a  purchaser  might  always  avoid 
performance  of  his  contract  by  procuring  a  stranger  to  set  up  such 
a  claim.30  But  if  there  be  color  of  outstanding  title  which  may 

in  the  case  than  that  a  legal  title  could  not  be  rejected  on  the  ground  that 
it  had  been  equitable  only  in  its  inception,  assuming  that  the  original  equit- 
able title  was  such  as  a  court  of  equity  would  enforce. 

"1  Sugd.  Vend.  (7th  Am.  ed.)  592  (520);  Osbaldiston .  v.  Askew,  1  Russ. 
160;  Scott  v.  Simpson,  11  Heisk.  (Tenn.)  310;  Owings  v.  Baldwin,  8  Gill 
(Md.),  337;  Linn  v.  McLean,  80  Ala.  360;  Estell  v.  Cole,  62  Tex.  695; 
Morrison  v.  Waggy,  43  W.  Va.  405,  27  S.  E.  Rep.  214;  Boyd  v.  Boley,  25 
Idaho,  584,  139  Pac.  139.  A  Us  pendens  renders  the  title  of  the  vendor  unmar- 
ketable. Earl  v.  Campbell,  14  How.  Pr.  (N.  Y.)  330.  But  see  Wilsey  v. 
Dennis,  44  Barb.  (N.  Y.)  354,  and  cases  cited  post,  §  306.  But  the  mere 
acceptance  of  a  conveyance  pendente  lite  will  not  affect  the  title  of  the  grantee 
if  the  contract  of  sale  was  made  before  the  suit  was  commenced.  Parks  v. 
Jackson,  11  Wend.  (N.  Y.)  442,  25  Am.  Dec.  $56.  A  sale  of  land  for 
delinquent  taxes  puts  a  cloud  on  the  title  and  renders  it  unmarketable. 
Wilson  v.  Tappan,  6  Ohio,  172.  So,  also,  a  suit  attacking  the  validity  of  a 
will  under  which  the  vendor  holds.  Hale  v.  Cravener,  128  111.  408,  affirming 
27  111.  App.  275.  But  if  the  person  in  whom  is  the  alleged  adverse  title 
acquiesces  in  the  vendor's  claim  to  the  title,  the  purchaser  cannot  refuse  to 
perform  the  contract.  Laverty  v.  Moore,  33  N.  Y.  6*58.  In  Greenleaf  v. 
Queen,  1  Pet.  (U.  S.)  138,  it  was  held  that  a  prior  sale  of  the  premises  under 
a  deed  of  trust,  the  purchaser  never  having  complied  with  the  terms  of  the 
sale,  nor  during  twelve  years  laid  any  claim  to  the  property,  constituted  no 
such  objection  to  the  title  as  would  justify  a  rescission  at  the  suit  of  the 
second  purchaser.  If  any  person  has  an  interest  in  or  claim  to  the  estate 
which  he  may  enforce,  the  purchaser  cannot  be  compelled  to  take  the  estate, 
no  matter  how  improbable  it  is  that  the  claim  will  be  enforced.  Cunningham 
v.  Sharp,  11  Humph.  (Tenn.)  116;  Dobbs  v.  Xorcross,  24  N.  J.  Eq.  327; 
King  v.  Knapp,  59  N.  Y.  462.  The  purchaser  cannot  be  compelled  to  com- 
plete the  contract  if  the  boundaries  of  the  premises  be  involved  in  doubt  or 
dispute.  Voorhees  v.  De  Myer,  3  Sandf.  Ch.  (N.  Y.)  614. 

30  Young  v.  Lillard,  1  A.  K.  Marsh.  (Ky.)  482.  But  see  Hall  v.  McKee,  147 
Ky.  841,  145  S.  W.  1129,  where  it  was  held  that  the  suit  of  an  adverse 
claimant,  whether  maintainable  or  not,  made  the  title  unmarketable.  An 
alleged  adverse  claim  unsustained  by  record  evidence  does  not  make  a  title 
doubtful.  Allen  v.  Phillip,  2  Litt.  (Ky.)  1.  A  purchaser  may  be  compelled 
to  take  the  title  if  it  appears  that  the  adverse  claim  has  been  decided,  barred 
or  released.  Jackson  v.  Murray,  5  T.  B.  Mon.  (Ky.)  184,  17  Am.  Dec.  53. 
It  is  not  a  conclusive  objection  to  the  title  that  a  third  party  has  filed  a  bill 


800  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

prove  substantial,  though  there  are  not  sufficient  facts  in  evidence 
to  enable  the  court  to  say  that  the  title  is  in  .another,  a  purchaser 
will  not  be  held  to  take  it  and  encounter  the  hazard  of  litigation.31 
Of  course  the  title  will  be  held  unmarketable  where  there  are  two 
conflicting  record  titles  to  the  property,88  or  where  a  record  title 
to  the  property  is  outstanding  in  another.33  An  exception  to  the 
rule  that  a  purchaser  will  not  be  compelled  to  take  an  equitable 
title  has  been  held  to  exist  when  the  purchase  was  under  a  decree, 
the  purchaser  in  such  a  case  being  compelled  to  take  just  such 
title  as  the  court  can  give.84  But  such  purchaser  cannot  require 

against  the  seller,  claiming  a  right  to  the  estate,  but  the  nature  of  the  adverse 
claim  will  be  looked  into.  1  Sugd.  Vend.  (8th  Am.  ed.)  589,  citing  Osbaldis- 
ton  v.  Askew,  1  Russ.  160.  Bentley  v.  Craven,  17  Beav.  204,  where  the  pur- 
chase money  was  detained  in  court  until  the  rights  of  an  adverse  claimant 
could  be  determined  in  a  suit  which  was  pending.  See  also  Whitaker  v. 
Willis,  (Tex.  Civ.  App.)  146  S.  W.  1004.  In  Francis  v.  Hazelrig,  1  A.  K. 
Miarsh.  ( K y. )  93,  the  contract  provided  that  the  vendor  should  convey  "  a 
clear  and  indisputable  title."  The  purchaser  contended  that  the  interference 
of  a  junior  patent  with  a  senior  patent  rendered  the  title  under  the  senior 
patent  disputable  and  cloudy,  but  the  court  said:  "An  indisputable  title  is 
one  which,  according  to  the  literal  import  of  the  term,  cannot  be  disputed. 
It  may.  perhaps,  be  said,  without  a  violation  of  propriety  in  language,  that  a 
title  may  be  disputed  wrongfully  as  well  as  rightfully,  but,the  latter  is,  with- 
out doubt,  the  true  sense  of  the  contract.  A  different  construction  would 
render  it  impossible  to  perform  the  contract,  for  there  can  be  no  title  which 
may  not  be  wrongfully  disputed.  It  follows,  therefore,  as  the  junior  title 
confers  no  legal  right  to  dispute  the  title  derived  under  an  elder  patent,  that 
the  latter,  notwithstanding  the  interference,  will  be,  in  the  true  sense  of  the 
term,  indisputable."  The  contract  had  been  executed  by  a  conveyance  with 
warranty  in  this  case,  but  the  foregoing  observations  would  apply  with  equal 
force  where  the  contract  is  executory.  In  Edwards  v.  Van  Bibber,  1  Lri^li 
(Va.),  183,  a  vendor  was  permitted  to  show  that  an  escheat  of  the  estate 
in  controversy  to  the  Commonwealth  for  default  of  heirs  of  a  former  owner 
who  had  sold  the  estate  but  died  before  conveying  it,  was  unsustained  by  the 
farts,  and  not  enforcible  by  the  Commonwealth;  and  the  purchaser  was  com- 
pelled to  take  the  title. 

11  Speakman  v.  Fnrepaugh,  44  Pa.  St.  373;  Herman  v.  Somers,  158  Pa.  St. 
424.  The  mere  fact  that  a  third  person  held  titlo  to  the  premises  under  a 
-h.-rifTs  deed,  fair  on  its  face,  rendered  the  title  unmarketable.  Stack  v. 
Hi.Uy.  ].-,!  \ViM-.  :H7,  138  N.  W.  1011. 

"Reydell  v.  Reydell,  31  N.  Y.  Supp.  1. 

*  Darrow  v.  Cornell,  61  N.  Y.  Supp.  828. 

»l  Sugd.  Vend.  (8th  Am.  ed.)  593  (338).  Carter  v.  Morris  B.  A  L.  Aaso., 
108  La.  143,  32  So.  Rep.  473;  Wollenberg  v.  Rose,  (Orcg.)  78  Pac.  Rep.  751. 


OF    DOUBTFUL    TITLES.  801 

his  vendee  to  take  from  him  the  same  title;  the  reason  being  that 
in  the  latter  case  the  rule  caveat  emptor,  as  enforced  in  judicial 
sales,  does  not  apply.35 

The  purchaser  cannot  be  compelled  to  take  a  title  which  is 
already  in  litigation  or  which  will  probably  involve  him  in  litiga- 
tion ;  he  cannot  be  required  to  purchase  a  law  suit,36  It  has  been 
held  that  a  pending  action,  and  Us  pendens  filed,  justify  the  rejec- 
tion of  the  title  by  the  purchaser,  where  the  complaint  states  a 
good  cause  of  action  affecting  the  land.  The  purchaser  is  not 
required  to  go  outside  the  complaint  and  look  up  the  evidence  to 
determine  whether  the  action  is  maintainable.37  Upon  the  same 
principle,  the  purchaser  cannot  be  compelled  to  accept  the  title, 
if  the  premises  are  in  the  possession  of  an  adverse  claimant.38  Nor 
can  he  be  required  to  accept  the  title  where  the  vendor  has  made 
a  second  sale  of  the  premises  before  default  on  the  part  of  the 
first  purchaser,  even  though  the  purchaser  at  the  second  sale  had 
notice  of  the  first  sale  and  took  subject  to  the  rights  of  the. first 

M  Powell  v.  Powell,  6  Madd.  63. 

38  Ante,  §  284.  James  v.  Mayer,  41  La.  Ann.  1110,  7  So.  Rep.  618;  Lyman 
v.  Stroudbaugh,  47  La.  Ann.  71,  16  So.  Rep.  662;  Schwartz  v.  Woodruff, 
132  Mich.  513,  93  N".  W.  Rep.  1067;  Bartlett  v.  Magee,  (Cal.)  45  Pac.  Rep. 
1029;  Bullard  v.  Bicknell,  49  N.  Y.  Supp.  666,  26  App.  Div.  319;  Kopp  v. 
Kopp,  1  N.  Y.  Supp.  261,  48  Hun,  532.  Jamilewyez  v.  Quagliano,  88  Conn.  60, 
89  Atl.  897;  Sorge  v.  Dickie,  199  Mich.  251,  165  N.  W.  781,  where  there  was  a 
suit  for  specific  performance  pending  against  the  vendor.  The  purchaser  will 
not  be  required  to  take  a  title  dependent  upon  the  question  whether  a  State 
was  estopped  from  asserting  title  to  the  premises.  Bodcaw  Lumber  Co.  v. 
White,  121  La.  715,  46  So.  782. 

87  Post,  §  306.  Simon  v.  Vendeveer,  155  N.  Y.  377,  49  N.  E.  Rep.  1043; 
Murphy  v.  Fox,  112  N.  Y.  Supp.  819,  128  App.  Div.  534;  Whalen  v.  Stewart, 
108  N.  Y.  Supp.  355,  123  App.  Div.  446.  But  the  complaint  must  show  a 
good  cause  of  action.  Weissbee  v.  Wallace,  108  N.  Y.  Supp.  887,  124  App. 
Div.  382.  The  Us  pendens  is  no  objection  to  the  title  if  the  cause  has  been 
settled,  or  disposed  of  adversely  to  the  plaintiff.  Alpern  v.  Farrell,  117  N".  Y. 
Supp.  706,  133  App.  Div.  278. 

M  Williams  v.  Carter,  3  Dana  (Ky.),  198;  Eisler  v.  Halperin,  89  N.  J.  L. 
278,  981  Atl.  245;  Cords  v.  Goodwin,  173  Cal.  61,  159  Pac.  138;  Wilson  v. 
Seybold,  216  Fed.  975;  Black  v.  International  Corpn.,  264  Pa.  260,  107  Atl. 
737.  Inability  to  enter  the  premises  except  over  the  land  of  another,  makes 
the  title  unmarketable.  Thomas  v.  Larz,  (Iowa)  166  N.  W.  287.  The  pur- 
chaser cannot  be  put  in  default  for  refusing  to  close  before  a  tenant  in  pos- 
session removes.  Engel  v.  Tate,  203'  Mich.  67,  170  N.  W.  105. 
101 


802  MARKETABLE    TITLE    To    REAL    ESTATE. 

purchaser."  It  has  been  said  that  the  probability  of  a  law  suit 
is  no  objection  to  the  title  if  the  suit  must  inevitably  terminate 
in  the  purchaser's  favor.  Thus  it  has  been  held  that  a  purchaser 
may  be  compelled  to  accept  a  conveyance  from  one  who  had 
executed  a  prior  voluntary  conveyance  of  the  premises,  even 
though  the  purchase  was  made  with  notice  of  such  prior  convey- 
ance.40 If  there  be  a  reasonable  doubt,  however,  as  to  whether  the 
prior  conveyance  was  in  fact  without  valuable  consideration,  it  is 
apprehended  that  the  subsequent  purchaser  could  not  be  compelled 
to  take  the  title.  Besides  the  vexation  and  expense  of  the  suit,  the 
purchaser  would  nm  the  risk  of  being  unable  to  show  that  the 
conveyance  was  voluntary.  The  probability  or  possibility  of  a 
law  suit  is  of  course  no  objection  to  the  title  where  the  purchaser 
is  or  may  be  let  into  the  possession,  and  the  suit  must  inevitably 
terminate  in  his  favor;  for  there  is  no  title  however  good  that 
may  not  be  attacked  by  ill-advised  claimants.  But  it  may  be 
doubted  whether  in  any  case  the  purchaser  could  be  compelled 
to  complete  the  contract  if  the  premises  were  held  by  an  adverse 
claimant  and  a  suit  by  the  purchaser  to  get  possession  should  be 
necessary.  In  ejectment  the  plaintiff  must  show  title  in  himself, 
a  proceeding  which  often  involves  much  expense  and  delay,  and 
there  seems  to  be  no  reason  why  this  burden  should  be  imposed 
upon  the  purchaser.  Besides  possession  is  one  of  the  principal 
elements  of  a  good  title,  and  a  vendor  who  is  unable  to  give  it, 
is  unable  to  perform  his  contract. 

The  rule  that  the  purchaser  cannot  be  compelled  to  take  an 
equitable  title  has  been  extended  to  a  case  in  which  the  legal  title 
was  outstanding  in  a  trustee,  though  the  trustee  might  be  com- 
pelled to  convey  at  any  time.41 

We  have  seen  that  if  the  purchaser  enter  into  the  contract 
knowing  that  the  title  is  in  litigation,  he  cannot  make  that  fact  a 

"Birch  v.  Cooper,  136  Cal.  63fl,  61)  Par.  Rep.  420.  Bnt  see  Hoook  v.  Bow- 
man, 42  Neb.  87,  and  Kreihich  v.  Martz,  110  Mich.  343,  where  the  contrary 
appears  to  have  been  held. 

-1  Su»rd.  Vend.  (8th  Am.  ed.)  586;  Id.  ch.  22.  Butterfleld  v.  Heath,  15 
Beav.  40*;  Humphrey*  v.  Moses,  2  W.  Bl.  1019;  Currie  v.  Nind,  1  Myl.  ft 
Cr.  17. 

"Murray  v.  KIHa,  112  Pa.  St.  486,  3  All.  Rep.  845. 


OF    DOUBTFUL    TITLES.  803 

ground  for  rescission.42  A  fortiori  he  cannot  rescind  where  he  has 
agreed  to  postpone  the  execution  of  the  contract  until  a  suit  involv- 
ing the  title  is  determined.43  Nor  can  he  object  that  the  vendor 
has  only  an  equitable  title,  if  he  buys  with  knowledge  of  that  fact 
and  the  contract  does  not  provide  that  he  shall  have  the  legal  title 
before  the  time  to  convey  arrives.44 

Where  the  contract  contains  no  provision  as  to  the  kind  of  title 
which  the  purchaser  is  to  receive,  and  he  buys  with  knowledge  of 
the  fact  that  a  squatter  is  in  possession  of  a  part  of  the  premises, 
it  has  been  held  that  there  is  no  implied  contract  to  furnish  a  good 
marketable  title,  and  that  the  vendor  may  compel  specific  per- 
formance. In  such  case  parol  evidence  is  admissible  to  show 
notice  of  the  squatter's  possession  at  the  time  of  the  contract.45 

An  objection  to  the  title  that  an  interest  in  the  property  is 
outstanding  in  others  disappears  if  such  others  be  estopped  by 
their  deed  from  claiming  the  interest.46.  The  purchaser  cannot 
refuse  to  complete  if  the  owner  of  an  outstanding  interest  will 
join  in  the  deed  to  him.47 

§  291.  DEFEASIBLE  ESTATES.  CONTINGENCIES.  A  purchaser 
who,  under  his  contract,  is  entitled  to  demand  a  conveyance  of  an 
indefeasible  estate  in  fee  simple,  cannot  be  required  to  take  an 
estate  defeasible  upon  the  happening  of  a  certain  event  or  upon  a 
certain  contingency ; 48  for  example,  a  devise  to  a  woman  providing 

43  Ante,  §  85. 

43  Hale  v.  Cravener,  128  111.  408,  21  ST.  E.  Rep.  534;  Holmes  v.  Richards, 
67  Ala.  577. 

44 Gray  v.  Hill,  (Mich.)  63  N.  W.  Rep.  77. 

45  Leonard  v.  Woodruff,   (Utah)   65  Pac.  Rep.  199. 

44  Jacobs  v.  Fowler,  119  N.  Y.  Supp.  647,  135  App.  Div.  713. 

4TOchs  v.  Kramer,  32  Ky.  L.  R.  762,  107  S.  W.  260;  Furst  v.  Bohl,  118 
N.  Y.  Supp.  125,  133  App.  Div.  627. 

48  Van  Schaick  v.  Lese,  66  N.  Y.  Supp.  64,  31  Misc.  610;  Lamprey  v. 
Whitehead,  64  N.  J.  Eq.  408,  54  Atl.  Rep.  803;  Richards  v.  Knight,  64  N.  J. 
Eq.  106,  53  Atl.  Rep.  452;  Hess  v.  Bowen,  241  Fed.  659,  154  C.  C.  A.  217; 
Lovitt  v.  Wilson,  114  Me.  143,  95  Atl.  778;  Weymouth  v.  Howe,  167  Wise. 
218,  167  N.  W.  270;  Fullenlove  v.  Vaughn,  151  Ky.  513,  152  S.  W.  570.  See 
Mr.  Austin  Abbot's  note  to  Moore  v.  Williams,  23  App.  N".  Cas.  (N.  Y.)  416. 
The  liability  of  an  estate  to  defeat  by  the  birth  of  issue  capable  of  taking  in 
remainder  renders  the  title  doubtful.  McPherson  v.  Smith,  49  Hun  (N.  Y.), 
254,  2  N.  Y.  Supp.  60;  Dole  v.  Shaw,  282  111.  642,  118  N.  E.  1044.  The  fol- 


804  MARKETABLE    TITLE    TO    REAL    ESTATE. 

that  title  should  remain  in  her  only  so  long  as  she  should  live 
separate  from  her  husband.49  This  is  not  so  much  upon  the  ground 
that  it  is  doubtful  whether  the  estate  will  ever  become  absolute, 
as  for  the  reason  that  the  purchaser  cannot  be  compelled  to  take 
an  estate  less  in  value  and  extent  than  that  for  which  he  bargained. 
If,  however,  it  be  alleged  that  it  is  physically  impossible  that  the 
event  defeating  the  estate  should  ever  transpire,  and  it  is  doubtful 
whether  such  allegation  can  be  sustained,  the  title  becomes  doubt- 
ful or  unmarketable  in  the  technical  sense  of  the  term.  If  it  can 
be  shown  beyond  a  doubt  that  the  happening  of  the  event  which 
will  defeat  the  estate  is  a  physical  impossibility,  no  reason  is  per- 
ceived why  the  purchaser  should  not  be  compelled  to  take  the 
title.50 

lowing  illustration  of  this  principle  is  from  the  opinion  of  Chancellor  WAL- 
WOBTH  in  Seaman  v.  Hicks,  ft  Paige  (N.  Y.),  655:  "In  the  ordinary  case  a 
base  fee,  determinable  only  upon  the  contingency  of  a  single  gentleman,  far- 
advanced  in  life,  afterwards  marrying  and  having  issue,  most  persons  might 
consider  the  happening  of  the  event  which  was  to  divest  the  estate  so  im- 
probable as  to  render  such  determinable  fee  substantially  the  same  as  an 
absolute  indefeasible  estate  of  inheritance  in  fee  simple.  For  it  might  In- 
considered  as  wholly  improbable  that  a  bachelor  of  seventy,  who  in  the  prime 
of  life  had  so  far  disregarded  the  teachings  of  wisdom  as  well  as  of  nature 
as  to  continue  in  a  state  of  celibacy,  would  at  that  advanced  age  not  only 
be  guilty  of  the  extreme  folly  of  contracting  matrimony  for  the  first  time, 
but  would  also  procreate  heirs  to  divest  the  estate  determinable  upon  that 
event.  But  certainly  no  lawyer  could  for  a  moment  suppose  that  a  vein  In-. 
who  had  contracted  for  a  good  title,  was  bound  to  accept  an  estate  which 
depended  upon  a  contingency  of  that  nature;  unless  the  fact  was  satisfactorily 
established  that  it  was  physically  impossible  that  the  event  which  was  to 
determine  the  estate  should  ever  happen." 

•Wright  v.  Mayer,  62  N.  Y.  Supp.  410;  47  App.  Div.  604. 

••Seaman  v.  Hicks,  ft  Paige  (N.  Y.),  655,  658,  dictum.  A  title  derived 
through  a  sale  in  proceedings  for  a  partition,  is  not  rendered  unmarketable 
by  the  fact  that  persons  not  in  esae  at  the  time  of  the  sale  may  come  into 
existence  and  be  entitled  to  share  in  the  property;  as  whore  lands  are  devised 
to  the  testator's  grandchildren,  and  at  the  time  of  a  partition  of  the  prop- 
erty, there  is  a  possibility  that  grandchildren  may  be  born  thereafter  who 
would  be  entitled  to  <-OIIH«  into  partition.  Wills  v.  Slade,  6  Ves.  498.  The 
powlbility  that  a  woman  70  years  old  would  have  issue  is  too  remote  to 
make  the  title  unmarketable.  Bacot  v.  Fessenden,  115  N.  Y.  Supp.  698; 
130  App.  Div.  819;  Whitney  v.  Groo,  40  App.  D.  C.  496.  Especially  is  this 
true  under  statutes  which  provide  that  those  entitled  to  a  reversion,  remainder 
nr  iiilu-ritanre.  shall  be  bond  by  a  judgment  in  partition.  Cheesman  v. 
Thome,  1  Edw.  Ch.  (N".  Y.)  629. 


OF    DOUBTFUL    TITLES.  805 

If  the  estate  of  the  vendor  could  only  have  arisen  upon  the  hap- 
pening of  a  contingency  provided  for  in  a  deed  or  will,  such  as 
the  death  of  a  particular  person  without  lawful  issue,  the  pur- 
chaser cannot  be  required  to  take  the  title  in  the  absence  of  evi- 
dence which  satisfactorily  establishes  the  happening  of  the 
contingency.51 

The  purchaser  cannot  reject  the  title  if  the  vendor  tenders  a 
deed,  or  if  he  claims  under  a  deed,  in  which  are  joined  as  grantors 
all  persons  who  would  take  in  the  event  of  the  happening  of  the 
contingency  by  which  the  estate  would  be  defeated.52 

§  292.  TITLE  DEPENDENT  UPON  ADVERSE  POSSESSION.  A 
purchaser  may  be  compelled  to  take  a  title  resting  upon  a  hostile, 
adverse  and  uninterrupted  possession,  under  color  of  title  which 
has  continued  for  a  length  of  time  sufficient  to  bar  the  rights  of 
any  possible  adverse  claimant.53  There  are  cases  which  apparently 

51  Chew  v.  Tome,  93  Md.  244 ;  48  Atl.  701. 

52  Williams  v.   Briggs,    176  N.   C.   48;    96  S.   E.   643;   Heisey  v.   Hartman, 
253  Pa.  359;   98  Atl.  606;  Elkins  v.  Thompson,  155  Ky.  91;   159  S.  W.  617. 

53  1  Sugd.  Vend.   (8th  Am.  ed.)   41,  584;  2  id.  101;  Atk.  Marketable  Titles, 
396,  403.     See,  generally,  the  cases  cited  throughout  this  subdivision.     Games 
v.  Bonner,  54  L.  J.   (N.  S.)   Ch.  517;  Prosser  v.  Watts,  6  Madd.  59;   Cottrell 
v.  Watkins,  1  Beav.  361;  Parr  v.  Lovegrove,  4  Drew.  170;   Scott  v.  Nixon,  3 
Dru.  &  War.  388;  Kirkwood  v.  Lloyd,  12  Ir.  Eq.  5S5;  Stewart  v.  Conyngham, 
1  Ir.  Ch.   C.  534;   Hyde  v.  Dallaway,  6  Jur.   119.     See,  also,  Emery  v.  Gro- 
cock,  6  Madd.  54;  Barnwall  v.  Harris,  1  Taunt.  430;   Causton  v.  Macklew,  2 
Sim.  242;  Martin  v.  Cotter,  3  Jon.  &  La.  T.  496;  Maginnis  v.  Fa'lon,  2  Moll. 
566;  Bolton  v.  School  Board,  L.  R.,  7  Ch.  Div.  766;  Hilary  v.  Waller,  12  Ves. 
239;  Thompson  v.  Milliken,  9  Grant  Ch.   (Can.)    359;  Wieland  v.  Renner,  65 
How.  Pr.   (N.  Y.)   245;  Meyer  v.  Boyd,  51  Hun   (N.  Y.).  291;  4  N.  Y.  Supp. 
328;  Ford  v.  Schlosser,  34  N.  Y.  Supp.  12;  Weil  v.  Radley,  52  N.  Y.  Supp. 
398;  Simis  v.  M'cElroy,  160  N.  Y.  156;  54  1ST.  E.  Rep.  674;  Kahn  v.  Mount, 
61  N".  Y.  Supp.  358;   46  App.  Div.  84;   Hammerschlag  v.  Duryea,  66  N.  Y. 
Supp.  87;  31  Misc.  Rep.  678;  Ruff  v.  Gerhartt,  76  N.  Y.  Supp.  743;  73  App. 
Div.  245;  Forsyth  v.  Leslie,  77  N.  Y.  Supp.  826;  74  App.  Div.  517;  Core  V. 
Wigner,  32  W.  Va.  277;  9  S.  E.  Rep.  36;  Hall  v.  Scott,  90  Ky.  340;  13  S.  W. 
Rep.  249;  Woodhead  v.  Foulds,   (Ky.)    12  S.  W.  Rep.  129;  Thacker  v.  Booth, 
(Ky.)    6  S.  W.  Rep.   460;    Williams  v.  Porter,    (Ky.)    21   S.  W.   Rep.   643; 
Bryan  v.  Osborne,  61  Ga.  51,  dictum.     Lurman  v.  Hubner,  75  Md.  269;   23 
Atl.  Rep.  646;  Foreman  v.  Wolf,   (Md.)   29  Atl.  Rep.  837;  Erdman  v.  Corse, 
87  Md.  506;  40  Atl.  Rep.  107;  Gump  v.  Sibley,  79  Md.  165;  28  Atl.  Rep.  977. 
Upon  the  general  proposition  that  the  Statute  of  Limitations  vests  a  perfect 
title  in  the  occupant,  see  Bicknell  v.  Comstock,  113  U.  S.  149;  Leffingwell  v. 
Warren,  2  Black    (U.  S.),  599.;   Croxall  v.  Sherrard,  5  Wall.    (U.  S.)    289; 


806  MARKETABLE    TITLE    TO    REAL,    ESTATE. 

Dickerson  v.  Colgrove,  100  U.  S.  578;  Harpening  v.  Dutch  Church,  16  Pet. 
(U.  S.)  455;  Elder  v.  McCloskey,  70  Fed.  Rep.  529;  Cox  v.  Cox,  18  D.  C.  1; 
Conley  v.  Finn,  171  Mass.  20;  50  N.  E.  Rep.  460;  McNeill  v.  Fuller,  121  N. 
C.  209;  28  S.  E.  Rep.  299.  Barnard  v.  Brown,  112  Mich.  452;  70  N.  W.  Rep. 
1038;  Tewksbury  v.  Howard,  138  Ind.  103;  37  N.  E.  Rep.  355.  Nelson  v. 
Jacobs,  99  Wis.  547;  75  X.  W.  Rep.  406;  Ballon  v.  Sherwood,  32  Neb.  666; 
49  X.  W.  Rep.  790;  Scannell  v.  Am.  Soda  F.  Co.,  161  Mo.  606;  61  S.  W. 
Rep.  889;  Fant  v.  Wright,  (Tex.  Civ.  App.)  61  S.  W.  Rep.  514;  Dallmeyer 
v.  Ferguson,  198  Pa.  St.  288;  47  Atl.  Rep.  962;  Westfall  v.  Washlagel,  200 
Pa.  St.  181;  49  Atl.  Rep.  941;  Miller  v.  Cramer,  48  S.  C.  282;  26  S.  E.  Rep. 
657;  Maccaw  v.  Crawley,  59  S.  C.  342;  37  S.  E.  Rep.  934;  Revol  v.  Stroud- 
back,  107  La.  295;  31  So.  Rep.  665;  Abraham  v.  Mieding,  108  La.  510;  32 
So.  Rep.  329.  In  Edwards  v.  Morris,  1  Ohio,  524,  it  appeared  that  a  deed  in 
the  vendor's  chain  of  title  had  not  been  acknowledged  or  proven,  but  the 
court  held  that  possession  under  the  deed  having  been  had  for  twenty-nine 
years,  the  contract  should  not  be  rescinded.  A  defect  in  the  acknowledgment 
of  a  deed  which  has  been  recorded  for  forty  years,  and  no  title  hostile  to  that 
derived  thereunder  has  been  asserted,  does  not  render  the  title  unmarketable. 
Bucklen  v.  Hasterlik.  155  111.  423;  40  N.  E.  Rep.  561;  Kennedy  v.  Gramling, 
33  So.  Car.  367;  11  S.  E.  Rep.  1081.  In  Gaines  v.  Jones,  86  Ky.  527;  7  S. 
W.  Rep.  25,  the  premises  had  been  bought  and  paid  for  by  a  prior  purchaser, 
but  by  mistake  had  been  omitted  from  a  deed  to  him.  Possession  had  been 
held  by  and  under  such  purchaser  for  more  than  the  statutory  period,  and 
the  title  was  held  such  as  a  subsequent  purchaser  must  accept  Titles  market- 
able. In  the  following  cases  the  vendor's  title  by  adverse  possession  was 
held  free  from  doubt,  and  such  as  the  purchaser  was  bound  to  accept:  Grant 
v.  \\  .-i--i.il.  6  J.  J.  Marsh.  (Ky.)  618,  where  the  vendor  had  had  thirty  years' 
uninterrupted  possession.  Abrams  v.  Rhoner,  44  Hun  (X.  Y.),  507,  ninety 
years.  Lyles  v.  Kirkpatrick,  9  S.  C.  265,  where  it  was  held  that  possession 
under  a  deed  for  more  than  ten  years,  the  statutory  period  of  limitation, 
cured  the  objection  that  a  deed,  under  which  the  vendor  held,  was  invalid  for 
want  of  a  subscribing  witness.  Edwtards  v.  MIorris,  1  Ohio,  524,  forty  years. 
Vance  v.  House,  5  B.  Mon.  (Ky.)  537,  thirty  years.  An  adverse,  uninterrupted 
possession  for  more  than  twenty  years,  without  evidence  that  the  case  was 
within  any  of  the  exceptions  of  the  Statute  of  Limitations,  makes  the  title 
marketable.  Allen  v.  Phillips,  2  Litt.  (Ky.)  1;  McCann  v.  Edwards,  6  B. 
Mon.  (Ky.)  208,  thirty  years.  A  minute  on  the  books  of  town  trustees, 
showing  a  prior  sale  of  a  lot,  is  no  objection,  after  the  lapse  of  many  years, 
to  the  title,  in  the  absence  of  anything  to  show  that  the  trustees  had  ever 
conveyed  the  lot  to  their  vendee.  Morris  v.  McMillen,  3  A.  K.  Marsh.  (Ky.) 
!'.  -.--,  i:  for  BMBJ  \..i  T  -  M-  i.  r  a  cj,->  .!.  M.  <  M.-iit.ilh  c!.--t  r<'\>").  i  T.  a:.-- 
such  a  title  as  a  purchaser  will  be  required  to  take.  Wade  v.  Greenwood,  2 
Rob.  (Vn.)  474;  40  Am.  Dec.  759.  Per  cwriam.  "It  has  been  objected  that 
a  purchaser  should  not  be  required  to  take  a  title  which  has  been  made  good 
by  the  statute.  We  can  nee  no  force  in  the  objection.  So  that  the  title  be 
good,  it  matters  not  how  it  ban  been  made  HO."  Tomlinson  v.  Savage,  6  Ireil. 
Kq.  (N.  C.)  430,  435.  In  Bohm  v.  Fay,  17  Abb.  N.  Cu.  (N.  Y.)  175,  there 
was  a  missing  deed  in  the  chain  of  title,  but  there  had  been  an  adverse,  unin- 


OF    DOUBTFUL    TITLES.  807 

terrupted  possession  for  fifty-five  years,  and  no  claim  to  the  land  had  ever 
been  made  by  any  person.  The  court  presumed  that  the  missing  deed  had 
been  actually  executed  and  delivered,  but  had  been  lost,  and  the  title  was 
held  marketable. 

In  1821  the  record  title  of  certain  premises  was  in  the  executors  of  B.,  with 
power  of  sale.  T.  entered  into  possession  of  the  premises  that  year,  and  he 
and  his  assigns  held  possession  for  more  than  fifty  years.  In  a  suit  for  par- 
tition of  B.'s  estate  among  his  heirs,  in  1831,  no  notice  was  taken  of  these 
premises.  Held,  that  a  sale  and  conveyance  by  the  executors  of  B.  to  T. 
must  be  presumed,  'and  that  the  title  of  one  claiming  through  T.  was  market- 
able. Ottinger  v.  Strasburger,  33  Hun  (N.  Y.),  466.  See,  also,  Shober  v. 
Dutton,  6  Phila.  (Pa.)  185;  Grady  v.  Ward,  20  Barb.  (1ST.  Y.)  543;  O'Connor 
v.  Huggins,  1  N.  Y.  Supp.  377. 

Recent  Cases.  Jackson  v.  Creek,  47  Ind.  App.  541;  94  N.  E.  416;  Wester- 
field  v.  Cohen,  130  La.  533;  58  So.  175;  Dickerson  v.  Trustees,  105  MA.  638; 
66  Atl.  494;  Bleman  v.  Wagner,  74  Md.  478;  22  Atl.  72;  Herbold  v.  Bld'g. 
Asso.,  113  Md.  156;  77  Atl.  122;  Safe  Dep.  &  Tr.  Co.  v.  Marburg,  110  Md. 
410;  72  Atl.  839;  Potomac  Lodge  v.  Miller,  118  Md.  405;  84  Atl.  554;  Novak 
v.  Orphans'  Home,  123  Md.  161;  90  Atl.  997;  Stewart  v.  Kreuzer,  127  Md.  1; 
95  Atl.  1052;  Goldman  v.  Miles,  129  M'd.  180;  98  Atl.  531;  Arey  v.  Baer, 
112  Md.  541;  76  Atl.  843;  Aroian  v.  Fairbanks,  216  Mass.  215;  103  N.  E. 
629;  Shanahan  v.  Chandler,  218  Mass.  441;  105  N.  E.  1002;  Long  v.  Coal 
&  Iron  Co.,  233  Mo.  713;  136  S.  W.  673;  Ocean  City  Asso.  v.  Creswell,  71 
1ST.  J.  Eq.  292;  65  Atl.  454;  Freedman  v.  Oppenheim,  187  N.  Y.  101;  79  N.  E. 
841;  116  Am.  St.  Eep.  595;  Wormser  v.  Gehri,  106  N.  Y.  Supp.  295;  Taub 
v.  Spector,  108  N.  Y.  Supp.  723;  124  App.  Div.  158;  Clark  v.  Woolport,  112 
N".  Y.  Supp.  547;  128  App.  Div.  203;  D.  W.  Alderman  Co.  v.  M'cKnight,  95 
S.  C.  245;  78  S.  E.  982;  Clark  v.  Asbury,  (Tex.  Civ.  App.)  134  S.  W.  286; 
Summers  v.  Hively,  78  W.  Va.  53;  88  S.  E.  608.  Title  dependent  upon 
adverse  possession  of  part  of  an  abandoned  road  for  more  than  50  years,  is 
marketable.  Pooler  v.  Sammet,  115  N.  Y.  Supp.  578;  130  App.  Div.  650. 
Technical  objections  to  the  title  shown  by  the  abstract  are  cured  by  long 
adverse  possession  of  the  vendor.  Cunningham  v.  Friendly,  70  Oreg.  222 ; 
39  Pac.  928. 

Titles  not  marketable.  In  the  following  cases,  the  evidence  was  held  in- 
sufficient to  show  that  the  title  by  adverse  possession  was  free  from  doubt: 
Scott  v.  Simpson,  11  Heisk.  310;  Beckwith  v.  Kouns,  6  B.  Mon.  (Ky.)  222; 
Lewis  v.  Herndom,  3  Litt.  (Ky.)  358;  14  Am.  Dec.  68;  Hightower  v.  Smith, 
5  J.  J.  Marsh.  (Ky.)  542;  Shriver  v.  Shriver,  86  N.  Y.  575;  Schultze  v. 
Rose,  65  How.  Pr.  (N.Y.)  75;  Griffin  v.  Cunningham,  191  Grat.  (Va.)  571.  A 
trustee  cannot  acquire  title  to  the  trust  subject  under  the  Statute  of  Limita- 
tions, because  his  possession  cannot  be  adverse  to  that  of  the  cestui  que  trust. 
2  Sugd.  Vend.  (8th  Am.  ed.)  106,  n.  and  cases  cited.  Possession  for  the 
statutory  period  under  a  deed  which  is  insufficiently  acknowledged  and  re- 
corded, to  bar  a  contingent  right  of  dower,  will  not  perfect  the  title  of  the 
grantee.  McGuire  v.  Bowman,  6  Bush  (Ky. ),  550.  In  Brown  v.  Cannon,  5 
Gil.  (111.)  182,  the  court,  while  admitting  that  a  purchaser  might  be  com- 
pelled to  take  a  title  by  adverse  possession  in  a  case  free  from  doubt,  observed : 


808  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

deny  this  proposition,64  but  in  most  of  them  it  will  be  found  that 
the  facts  tending  to  establish  the  adverse  possession  for  the  re- 
quired length  of  time  were  considered  by  the  court  too  doubtful 
to  support  a  decree  against  tTie  purchaser.  If  the  facts  upon 
which  such  a  title  rests  be  clear  and  undisputed,  the  title  stands 
upon  the  same  ground  as  any  other  title  founded  upon  matters 
in  pais.**  But  if  the  facts  alleged  be  disputed  and  doubtful, 
specific  performance  will  be  denied  under  the  rule  that  relieves 
the  purchaser  wherever  he  may,  in  the  future,  be  compelled  to 
resort  to  parol  testimony  to  remove  doubts  about  the  title.6*  If, 
however,  the  proof  of  adverse  possession  for  the  statutory  period 
is  so  clear  that  a  court  would  be  bound  to  direct  a  jury  to  find  for 

"Of  all  known  titles  to  land  beyond  a  mere  naked  possession,  which  are 
pritna  facie  good,  there  are,  perhaps,  none  recognized  by  law  more  doubtful 
and  uncertain  than  those  depending  for  their  validity  upon  an  adverse  posses- 
sion under  a  statute  of  limitations."  And  in  the  following  cases  of  doubtful 
questions  of  law  applicable  to  title  by  adverse  possession,  the  title  was  held 
unmarketable:  Whether  the  words  "other  charges,"  in  a  statute  providing 
that  ground  rents,  annuities  and  "other  charges"  should  be  presumed  to  be 
satisfied  after  a  certain  length  of  time,  included  mortgages.  Pratt  v.  Eby, 
67  Pa.  St.  390.  Whether  a  statute  providing  that  a  trust  for  the  benefit  of 
creditors  shall  be  deemed  discharged  after  the  lapse  of  twenty-five  years, 
operated  retrospectively.  McCahill  v.  Hamilton,  20  Hun  (X.  Y.),  388. 

MEyton  v.  Dickcn,  4  Price  Ex.  303;  Tevis  v.  Richardson,  7  B.  Mon.  (Ky.) 
654;  Mott  v.  Mott,  08  N.  V.  246,  scmblc;  Hartley  v.  James,  50  N.  Y.  38, 
criticised  in  Ottingpr  v.  Strasburger,  33  Hun  (X.  Y.),  466,  469;  Chapman  v. 
Lee,  55  Ala.  616;  McLaughlin  v.  Brown,  (Tex.  Civ.  App.)  126  S.  W.  292. 

•Thus,  in  Duvall  v.  Parker,  2  Duv.  (Ky.)  182,  it  was  held  that  the  pur- 
chaser muxt  take  a  title  dependent  on  thirty  years'  adverse  possession,  there 
being,  according  to  the  evidence  in  that  case,  not  the  remotest  probability 
that  he  would  ever  be  disturbed  by  an  adverse  claimant. 

"2  Beach  Mod.  Eq.  Jur.  $  60*.  "The  only  reason,  if  any,  why  a  title  by 
adverse  poxsewiion  itt  not  marketable  would  be  because  its  validity  is  a  ques- 
tion  of  evidence  rather  than  of  law."  Rawle  Covt.  (5th  ed.)  8  56.  Xoyes 
T.  Johnson,  139  Maaa.  436;  31  X.  E.  Rep.  767:  McCabe  v.  Kenny,  52  Hun 
(X.  Y.),  514;  5  X.  Y.  Supp.  678;  Bogga  v.  Bodkin,  32  W.  Va.  566;  9  S.  E. 
Rep.  891;  Heller  v.  Cohen,  154  X.  Y.  299;  48  X.  E.  Rep.  527;  McAllister  v. 
Harmon,  101  Va.  17;  42  S.  E.  Rep.  920;  A. I  kin-  v.  Gillespie,  (Tex.  Civ. 
App.)  180  S.  W.  275;  Sulk  v.  Tumulty,  77  X.  J.  Eq.  97;  75  Atl.  757.  Titles 
by  advertw  pottHeiwion  are  in  dixfavor  except  in  the  closest  and  moat  indis- 
putable case*.  Lincoln  Sav.  Bank  v.  Schneider,  174  X.  Y.  Supp.  529;  105 
Misc.  Rep.  530;  Crocker  Pt.  Asso.  v.  Gouraud,  224  X.  Y.  343;  102  X.  E.  737. 


OF    DOUBTFUL    TITLES.  809 

the  purchaser  if  sued  in  ejectment,  the  title  must  be  held  to  be 
marketable.57 

In  titles  founded  on  the  Statute  of  Limitations  the  burden  is 
on  the  vendor  to  show,  (1)  that  the  possession  has  been  open, 
hostile,  adverse,  notorious,  and  uninterrupted  for  the  statutory 
period;  (2)  that  there  is  no  saving  to  any  person  on  account  of 
personal  disabilities;  and  (3)  it  must  appear  that  in  all  human 
probability  the  purchaser  will  have  the  means  at  hand  to  estab- 
lish his  title  by  adverse  possession  if  it  should  be  attacked  by  a 
third  person  in  the  future.58  True,  as  has  been  seen,  it  is  a  rule 
that  a  purchaser  cannot  be  compelled  to  take  a  title  which,  if 
attacked  in  the  remote  future,  he  can  only  sustain  by  the  testi- 
mony of  witnesses,  since  these  may,  in  the  meanwhile,  have  be- 
come unavailable  to  him  by  death  or  disqualification.  But  this 
rule  must  be  given  a  reasonable  construction,  else  it  would  render 
unmarketable  some  titles  of  the  most  satisfactory  kind.  Thus, 
title  by  descent  is,  as  a  general  rule,  to  be  established  only  by  the 
testimony  of  witnesses,59  and  not  by  documentary  or  record  evi- 
dence, yet  no  one  for  this  reason  ever  objects  that  the  title  is 
unmarketable  if  the  means  of  establishing  the  fact  of  inheritance 
exists.  The  same  reasoning  applies  with  equal  force  to  titles 
under  the  'Statute  of  Limitations.  There  must  be  some  present 
ground  to  apprehend  that  the  title  will  be  disputed,  and  the  means 
of  sustaining  it  unavailable  to  the  purchaser.60 

"Ottinger  v.  Strasburger,  33  Hun  (N".  Y.),  466;  Shriver  v.  Shriver,  86  N. 
Y.  575;  Adams  v.  Rhoner,  44  Hun  (N.  Y.),  507;  Hagan  v.  Drucker,  85  N.  Y. 
Supp.  601;  90  App.  Div.  28;  Smith  v.  Riordan,  (Mo.  App.)  213  S.  W.  61. 

56  Heller  v.  Cohen,  154  N.  Y.  299;  48  N".  E.  Rep.  527;  Ruess  v.  Ewen,  54 
N.  Y.  Supp.  357;  34  App.  Div.  484;  Gorman  v.  Gorman,  57  N".  Y.  Supp. 
1069;  40  App.  Div.  225;  Roos  v.  Thigpen,  (Tex.  Civ.  App.)  140  S.  W.  1180; 
Cline  v.  Booty,  (Tex.  Civ.  App.)  175  S.  W.  1081.  The  purchaser's  contention 
that  there  can  be  no  adverse  possession  by  a  tenant  in  common  against  his 
co-tenant,  cannot  be  sustained.  Pope  v.  Thrall,  68  N.  Y.  Supp.  137;  33  Misc. 
Rep.  44. 

09  Affidavits  of  witnesses  as  to  the  fact  of  inheritance  are  sometimes  taken 
and  spread  upon  the  public  records;  but  these,  it  is  obvious,  are  mere  hear- 
say and  inadmissible  as  evidence  in  the  courts,  and  are  not,  strictly  speaking 
"  record "  evidence  of  title.  See  Warvelle  Abstracts,  369. 

"Eberhardt  v.  Mller,  71  111.  App.  215;  Hollifield  v.  Landrum   (Tex.  Civ. 
App.),  71  S.  W.  Rep.  979,  citing  the  text. 
102 


810  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

The  purchaser  should  not  be  put  in  default  until  he  has  had 
a  reasonable  time  to  examine  the  evidence  relied  on  in  support 
of  the  title  by  adverse  possession.61 

The  possession  of  the  purchaser  is  the  prolongation  or  continua- 
tion of  that  of  the  vendor,  and  if  both  together  amount  to  a  good 
prescriptive  right,  the  purchaser  may  be  compelled  to  complete 
the  contract.*2  It  seems  that  if,  by  the  express  terms  of  the  con- 
tract, the  purchaser  is  entitled  to  demand  a  "good  title  of 
record,"63  or  that  the  vendor  must  furnish  an  abstract  showing 
a  good  record  title,64  the  purchaser  cannot  be  compelled  to  accept 
a  title  dependent  upon  adverse  possession.  And  it  has  been  de- 
cided that  adverse  possession  can  never  ripen  into  a  marketable 
title,  unless  held  under  some  assurance  purporting  to  convey  a 

"Crocker  Pt.  Asso'n.  v.  Gouraud,  224  N.  Y.  662;   120  N.  E.  737. 

"McLaren  v.  Irvin,  63  Ga.  275;  Miller  v.  Cramer,  48  S.  C.  282;  26  S.  E. 
Rep.  657. 

•Ante,  §  6.  Page  v.  Greely,  75  111.  400;  Noyes  v.  Johnson,  139  Mass.  436; 
31  N.  E.  Rep.  767;  Cherry  v.  Davis,  59  Ga.  454,  acmb'lc;  Payne  v.  Markle,  89 
III.  66,  where  the  contract  called  for  a  "  perfect  chain  of  title."  In  California 
it  seems  that  the  purchaser  cannot  be  compelled  to  take  a  title  dependent 
upon  the  Statute  of  Limitations,  though  the  contract  does  not  expressly  pro- 
vide for  a  "good  title  of  record."  It  has  been  held  in  that  State  that  the 
purchaser  is  entitled  to  a  title  "fairly  deducible  of  record"  (Turner  v. 
MrDonald,  76  Cal.  ISO;  18  Pac.  Rep.  262),  and  that,  therefore,  a  title  under 
the  statute  ia  not  sufficient.  McCroskey  v.  Ladd,  (Cal.)  28  Pac.  Rep.  216; 
Benson  v.  Shotwell,  87  Cal.  56;  25  Pac.  Rep.  249;  Gwin  v.  Calegaris,  130 
Cal.  384;  73  Pac.  851,  where  the  agreement  was  that  the  title  should  be 
"satisfactory"  to  the  purchaser.  An  agreement  by  the  vendor  to  furnish 
a  "  good  deed  "  to  the  property  does  not  require  him  to  furnish  an  abstract 
showing  a  record  title  thereto.  Title  by  adverse  possession  will  be  sufficient. 
Clark  v.  Asbury,  (Tex.  Civ.  App.)  134  S.  W.  286. 

"Hennig  v.  Smith,  151  N.  Y.  Supp.  444;  Friend  v.  Mahin,  202  111.  App. 
40;  Mays  v.  Blair,  120  Ark.  69;  179  S.  W.  331;  Bradway  v.  Miller,  200 
Mich.  648:  167  N.  W.  15;  Danzer  v.  Moerschel,  (Mo.)  214  S.  W.  849;  St. 
Hair  v.  Hpllwtp,  173  Mo.  App.  600;  159  S.  W.  17;  Ives  v.  Bank,  (Mo.  App.) 
]H  S.  \V.  23;  Bruce  v.  Wolfe,  102  Mo.  App.  389;  76  S.  W.  724;  McLane  v. 
Petty,  (Tex.  Civ.  App.)  150  S.  W.  891;  Nicholson  v.  Lieber,  (Tex.  Civ. 
App.')  1.'>.1  S.  W.  641;  Wright  v.  Glass,  (Tex.  Civ.  App.)  174  S.  W.  717; 
Cline  v.  Booty.  (Tex.  Civ.  App.)  175  S.  W.  1081;  Adkins  v.  Gillespie,  (Tex. 
Civ.  App.)  180  8.  W.  275.  Where  the  vendor  is  to  furnish  an  abstract 
showing  a  merchantable  till,-,  an  abstract  -ln>\vin^  by  affidavits  only  that 
the  otitMtanilin;r  title  to  tin-  premise*  is  barred  by  adverse  possession  is  in-utli- 
cu-nt.  H«-.l,r  v.  Sims,  PI  Kan.  757:  139  Pac.  371;  93  Kan.  213;  144  Pac, 
237,  citing  Linscott  v.  Mozeman,  84  Kan.  541;  114  Pac.  1088;  Van  Gundy  v. 


OF    DOUBTFUL    TITLES.  811 

fee  simple,  or  other  estate  equal  in  quantity  to  that  which 
the  vendor  undertakes  to  sell.65  This  depends  upon  the  familiar 
rule  that  the  mere  naked  possession  of  a  trespasser  without  color 
of  title,  no  matter  how  long  continued,  will  not  bar  the  entry  of 
the  true  owner. 

If  the  title  of  the  party  in  possession  has  ripened  under  the 
Statute  of  Limitations,  it  will  not  be  rendered  doubtful  or  un- 
marketable by  a  subsequent  statute  extending  the  period  of  limi- 
tation.66 A  title  dependent  upon  adverse  possession  against  a 
remainderman  is  of  course  unmarketable,  since  his  right  of  action 
does  not  accrue  until  the  precedent  estate  determines.67 

If  the  vendor's  title  be  perfected  by  lapse  of  time  pending  a  suit 
for  rescission  or  specific  performance,  the  purchaser  must  accept 
it,68  unless  time  was  material  to  the  purchaser  or  was  of  the 
essence  of  the  contract.69 

A  title  founded  upon  adverse  possession  will  not  be  marketable 
unless  sufficient  time  has  elapsed  to  bar  the  rights  of  any  person 

Shewey,  90  Kan.  253;  133  Pac.  720;  47  L.  R.  A.  (N.  S.)  645.  If  the  con- 
tract requires  the  vendor  to  convey  a  perfect  record  title  shown  by  abstract, 
the  purchaser  cannot  be  compelled  to  take  a  title  resting  upon  adverse 
possession.  But  if  the  agreement  be  only  to  execute  a  "  good  deed,"  or  a 
"  warranty  deed,"  the  purchaser  may  be  required  to  take  such  a  title.  Atte- 
bury  v.  Blair,  244  111.  363;  91  N.  E.  475;  135  Am.  St.  Rep.  342;  Bear  v. 
Fletcher,  252  111.  206;  96  N.  E.  997;  Clark  v.  Asbury,  (Tex.  Civ.  App.)  134 
S.  W.  286.  Unless  the  contract  calls  for  a  record  title,  or  an  abstract  show- 
ing title,  a  good  title  by  adverse  possession  under  the  statute  of  limitations 
is  sufficient.  Wiemann  v.  Steffen,  186  Mo.  App.  584;  172  S.  W.  472.  In 
the  case  of  Jamison  v.  Van  Auken,  (Mo.)  210  S.  W.  404,  it  is  argued  with 
much  force  that  a  title  by  adverse  possession,  free  from  doubt  as  to  the 
facts  on  which  it  depends,  satisfies  the  requirement  that  the  abstract  shall 
show  a  "  good  merchantable  title."  As  was  there  pointed  out,  an  abstract 
may  show  perfect  title  in  one  who  really  has  no  interest  in  the  property; 
and  one  may  have  a  perfect  title  that  is  not  disclosed  by  documentary 
evidence  of  any  kind. 

85  Cunningham  v.  Sharp,  11  Humph.  (Tenn.)  116;  Chapman  v.  Lee.  55 
Ala.  616;  Knedler  v.  Lang,  63  Hun  (N.  Y.),  48;  affd'd.,  137  N.  Y.  589. 

*  Shriver  v.  Shriver,  86  N.  Y.  575. 

87  2  Sugd.  Vend.  (8th  Am.  ed.)  104;  Wms.  Real  Prop.  (Am.  ed.  1886)  450 
(355). 

^Wickliffe  v.  Lee,  6  B.  Mon.  (Ky.)  543;  Peers  v.  Barnett,  12  Grat.  (Va.) 
410. 

09  Post,  ch.  32.  Costs  will  be  decreed  against  the  vendor  in  such  case.  Peers 
v.  Barnett,  12  Gratt.  (Va.)  410. 


812  MAKKETABLE    TITLE    TO    REAL,    ESTATE. 

who  was  under  disabilities,  such  as  infancy  or  coverture,  when 
the  cause  of  action  accrued.70  Generally  the  Statutes  of  Limita- 
tions in  the  several  States  specify  a  time  within  which  a  person 
whose  disabilities  have  been  removed,  must  assert  his  rights,  and 
in  some  of  the  States  it  is  provided  that  in  no  case,  including  such 
additional  period,  shall  the  period  of  limitation  exceed  a  specified 
number  of  years.  Under  such  a  statute  it  has  been  held  that  the 
possibility  of  a  claim  by  a  person  under  disabilities  could  not 
render  the  title  doubtful  where  the  extreme  period  of  limitation 
had  elapsed.71  If  it  may  be  fairly  inferred  from  the  abstract  that 
a  defect  arising  before  the  period  at  which  the  abstract  commences, 
exists,  the  purchaser  may  require  that  the  title  before  that  time 
shall  be  shown ;  but  if  that  be  not  within  the  vendor's  power  the 
title  will  not  be  held  bad  upon  mere  suspicions." 

If  the  vendor  set  up  title  under  the  Statute  of  Limitations,  the 
burden  will  be  upon  him  to  show  that  the  title  is  good.73  It  will 
be  sufficient,  it  is  apprehended,  for  him  to  show  an  exclusive, 
adverse,  notorious,  uninterrupted  and  hostile  possession  under 
color  of  title  for  the  statutory  period,  including  any  saving  in 

"Brown  v.  Cannon,  5  Gil.  (111.)  174;  Tevis  v.  Richardson,  7  B.  Men.  (Ky.) 
654;  Simis  v.  McElroy,  160  N.  Y.  156;  54  N.  E.  Rep.  674;  Ford  v.  Wright, 
114  Mich.  122;  72  N.  W.  Rep.  197;  Baumeiater  v.  Silver,  98  Md.  418;  56 
Atl.  825;  Wilhelm  v.  Federgreen,  38  X.  Y.  Supp.  8;  2  App.  Div.  483;  Fulir 
v.  Cronin,  81  N.  Y.  Supp.  536;  82  App.  Div.  210;  Bess-Alar  Realty  Co.  v. 
Capell,  164  N.  Y.  Supp.  803;  Hummer  v.  Buerk,  90  N.  J.  Kq.  97;  106 
Atl.  141;  Lalor  v.  Tucker,  114  X.  Y.  Supp.  403;  130  App.  Div.  688;  Alpha 
Ccm.  Co.  v.  Shirk,  227  Fed.  966;  142  C.  C.  A.  424.  The  running  of  tlio 
statute  ift  not  interrupted  by  the  death  of  the  possible  claimant  and  the 
infancy  of  his  heirs.  Lewine  v.  Gerardo,  112  X.  Y.  Supp.  192. 

"Pratt  v.  Eby,  67  Pa.  St.  396;  Shober  v.  Dutton,  6  Phila.  (Pa.)  18.6;  Ot- 
tinger  v.  Strasburger,  33  Hun  (X.  Y.),  466;  N.  Y.  Steam  Co.  v.  Stern,  46 
Hun  (N.  Y.),  206;  Messinger  v.  Foster,  101  X.  Y.  Supp.  387;  115  App. 
Div.  689. 

rtl  Sugd.  Vend.  (8th  Am.  ed.)  552;  Seymour  v.  Delancey,  Hopk.  Hi. 
I  V.  V.)  436;  14  Am.  Dec.  552. 

"  Luckett  v.  Williamson,  31  Mo.  54,  the  court  saying:  "A  party  making 
out  a  title  under  the  Statute  of  Limitations  must  show  it  to  be  good,  that 
the  court  may  determine  whether  it  shall  be  received.  It  is  not  for  the 
purchaser  to  contest  the  validity  of  such  a  title  with  the  vendor,  as  he  may 
be  wholly  ignorant  of  the  state  of  it."  Knedler  v.  Lang.  (>.'{  Hun  (N.  Y.), 
48;  17  N.  Y.  Supp.  443;  Wilhelm  v.  Federgreen,  38  N.  Y.  Supp.  8;  2  App. 
Div.  483. 


OF    DOUBTFUL    TITLES.  813 

favor  of  persons  under  disabilities.  If  it  be  doubtful  whether 
there  are  any  such  persons,  and  he  be  unable  to  show  that  there 
are  none  such,  the  title  will  be  deemed  unmarketable.74  He  must 
be  able  to  show,  also,  that  there  are  no  persons  in  remainder  who 
might  claim  the  estate,  since  the  Statute  of  Limitations  does  not 
begin  to  run,  as  to  them,  until  the  determination  of  the  precedent 
particular  estate.75  It  has  been  held,  however,  that  if  the  vendor 
shows  a  title  prima  facie  good  under  the  Statute  of  Limitations, 
the  burden  will  devolve  upon  the  purchaser  to  show  facts  which 
would  prevent  the  running  of  the  statute.76 

In  some  jurisdictions  a  vendor,  relying  on  a  title  under  the 
Statute  of  Limitations,  will  be  permitted  to  join  the  persons  hold- 
ing the  apparent  legal  title  as  parties  defendant  in  his  suit  against 
the  purchaser  for  specific  performance,  and  have  their  claims  de- 
termined.77 If  this  practice  be  founded  upon  sound  principles,  no 
reason  is  perceived  why  the  vendor  should  not  be  allowed  to  bring 
in  such  persons  and  adjudicate  their  rights  in  any  case  in  which 
it  is  objected  that  the  title  is  doubtful,  at  least,  in  any  case  in 
which  he  would  have  a  right  to  maintain  a  bill  against  such  per- 
sons to  quiet  his  title. 

As  a  general  rule  any  objection  to  the  title  which  is  cured  by 
the  Statute  of  Limitations  other  than  that  applicable  to  possessory 
actions,  or  by  lapse  of  time,  constitutes  no  ground  upon  which  the 
purchaser  can  refuse  to  complete  the  contract,  if  the  case  admit 
of  no  reasonable  doubt  as  to  the  application  of  the  bar.  Thus  the 
existence  of  a  prior  executory  contract  for  the  sale  of  the  premises, 
the  benefit  of  which  had  passed  to  an  assignee  in  bankruptcy,  was 

74 Brown  v.  Cannon,  5  Gil.  (111.)  174.  But  see  Day  v.  Kingsland,  57  N".  J. 
Eq.  134;  41  Atl.  99,  where  the  facts  were  held  sufficient  to  throw  the  burden 
of  proof  in  that  respect  upon  the  purchaser.  In  Seymour  v.  Delancey,  Hopk. 
Ch.  (X.  Y.)  436  (495)  ;  14  Am.  Dec.  552,  it  was  held  that  if  a  title  derived 
under  a  person  alleged  to  have  died  without  heirs,  be  clearly  adverse  for  a 
period  of  twenty-five  years,  it  will  not  be  rendered  unmarketable  by  the  possi- 
bility of  an  escheat  of  said  person's  estate  or  of  his  having  left  heirs  who 
are  under  disabilities. 

"Simis  v.  McElroy,  160  N.  Y.  156;  54  N.  E.  Rep.  674. 

78  Phillips  v.  Day,  82  Cal.  24;  22  Pac.  Rep.  976,  citing  Shriver  v.  Shriver, 
86  N.  Y.  575;  e.  g.,  persons  under  disabilities.  Warne  v.  Greenbaum,  (N. 
J.  Eq.)  101  Ail.  568. 

"Duvall  v.  Parker,  2  Duv.   (Ky.)   182.     Ante,  p.  787. 


814  MARKETABLE    TITLE    TO    REAL    ESTATE. 

held  no  valid  objection  to  the  title,  the  right  of  the  assignee  to 
enforce  the  contract  having  become  barred  by  lapse  of  time.78 

The  purchaser  may  be  required  to  take  a  title  dependent  upon 
the  Statute  of  Limitations,  though  the  vendor  did  not  inform  him, 
at  the  time  of  the  contract,  of  the  character  of  the  title,  and  fur- 
nish him  with  proof  of  its  sufficiency.79 

§  293.  PRESUMPTIONS  FROM  LAPSE  OF  TIME.  Independently 
of  the  Statute  of  Limitations,  possession  by  the  vendor  and  his 
predecessors  in  title,  for  a  great  length  of  time  has,  in  some  cases, 
been  held  to  raise  a  conclusive  presumption  of  a  grant  or  convey- 
ance, and  to  remove  any  doubt  or  uncertainty  as  to  the  title  which 
might  arise  from  the  inability  of  the  vendor  to  show  such  a  grant, 
or  to  supply  a  missing  link  in  the  record  chain  of  title.80  There 

n  Holmes  v.  Richards,  67  Ala.  577. 

"Kahn  v.  -Mount,  61  N.  Y.  Supp.  358;  46  App.  Div.  84. 

"English  cases  cited,  ante,  p.  805,  note  53.  1  Sugd.  Vend.  (8th  Am.  ed.) 
41,  584;  2  id.  101;  Atk.  Mark.  Titles,  396,  403.  O'Connor  v,  Hudgins,  113 
N.  Y.  511,  521;  21  N.  E.  Rep.  184.  Brassfield  v.  Walker,  7  B.  Mon.  (Ky.) 
06;  Logan  v.  Bull,  78  Ky.  607,  614.  To  make  good  a  title  to  the  residue  of 
an  old  term,  mesne  assignments  which  cannot  be  produced  will  be  presumed 
to  exist.  White  v.  Foljambe,  11  Ves.  344.  A  title  may  be  good  though 
there  are  no  deeds,  but  there  must  have  been  such  a  long  uninterrupted  pos- 
session, enjoyment  and  dealing  with  the  property  as  to  afford  a  reasonable 
presumption  that  there  is  an  absolute  title  in  fee  simple.  1  Sugd.  Vend. 
(8th  Am.  ed.)  41;  2  id.  101.  The  court  will  presume  that  the  wives  of 
grantors  in  ancient  deeds — those  more  than  thirty  years  old — are  dead,  and 
the  property  is  free  from  their  claims.  Jarboe  v.  MrAtt-e.  7  11.  M<m.  (K- 
279.  In  the  same  case  it  was  held  that  an  agent's  authority  to  convey  would 
be  presumed  after  fifty  years.  A  grant  from  the  Commonweath  will  be 
presumed  after  forty  years'  adverse  possession.  Henderson  v.  Perkins.  94 
Ky.  207;  Jarboe  v.  McAtee,  7  B.  Mon.  (Ky.)  279;  3  Starkie  Ev.  1221;  1 
Green).  Ev.  50.  In  Abrams  v.  Rhoner,  44  Hun  (N.  Y.),  507,  it  appeared  that 
B.,  through  whom  the  vendor  claimed,  under  a  deed  executed  in  1797,  had 
made  a  prior  conveyance  of  the  same  premise-,  in  1771.  i<>  parties  other  than 
those  through  whom  the  vendor  claimed  title,  and  there  was  no  evidence  that 
the  title  acquired  under  B.'s  conveyance  in  1771  had  ever  passed  back  to  him, 
or  vested  in  any  other  of  the  vendor's  predecessors  in  title  But  those  under 
whom  the  vendor  claimed  had  been  in  possession  since  1797,  and  none  of  the 
grantees  named  in  the  deed  of  1771  had  ever  been  in  possession  of,  or  made 
any  claim  to,  the  premises,  and  no  conveyance  by  them  to  any  person  had 
I-VIT  IMM-H  found.  Held,  that  the  title  of  the  vendor  was  marketable,  it  being 
conclusively  presumed  that  the  grantees  in  the  deed  of  1771  had  roconveyed 
to  B.  before  he  conveyed  in  1797,  or  that  the  conveyance  of  1771  had,  for  some 
reason,  never  taken  effect. 


OF    DOUBTFUL    TITLES.  815 

have  been  cases,  also,  in  which  the  courts  have  held  that  rights  of 
third  persons  which,  if  asserted  in  due  season,  might  have  raised 
insuperable  objections  to  the  sufficiency  of  the  title,  but  which 
have  been  lost  by  lapse  of  time,  furnish  no  ground  on  which  to 
hold  the  title  unmarketable.81  And  a  purchaser  has  in  some  cases 
been  compelled  to  take  a  title  dependent  for  its  validity  upon  a 
presumption  of  the  death  of  a  person  interested  in  the  estate, 
arising  from  such  person's  absence  for  many  years  without  having 
been  heard  from  in  the  meanwhile.  But  such  absence  must  have 
continued  for  a  length  of  time  sufficient  to  remove  any  doubt  that 
the  absentee  is  dead.82  And  it  is  apprehended  that  the  circum- 

81  A.  S.  Abell  Co.  v.  Firemen's  Insurance  Co.,  93  Md.  596 ;  49  Atl.  334.     In 
this  case  it  appeared  that  a  leasehold  interest,  under  a  lease  for  99  years 
expiring  in  1870  but  renewable  during  the  term,  was  sold  under  decree  in  a 
suit  for  partition  in  1852,  but  the  sale  was  void  as  to  the  one-fourth  interest 
of  a  person  who  had  not  been  made  a  party  to  the  proceeding.     In   1887, 
after  the  expiration  of  the  lease,  the  purchaser  at  the  partition  sale  pro- 
cured a  renewal  from  the  owner  of  the  fee  and  in  1897  he  purchased  the  fee. 
Afterwards  he  contracted  to  sell  the  'property,  but  it  was  objected  against 
his  title  that,  by  the  law  of  the  State,  the  lessor  who  forfeits  his  right  to 
renew  by  failure  to  renew  during  the  term   is  entitled  to   relief  in  equity 
against  the  forfeiture  and  hence  that  the  owner  of  the  one-fourth  interest 
in  the  lease,  which  had  been  illegally  sold  at  the  partition  sale  in   1852,  not 
being  bound  by  that  sale,  was  entitled  in  equity  to  relief  against  the  for- 
feiture, and  to  demand  a  renewal  of  the  lase.     But  it  appearing  that  such 
owner  had  left  the  state   long  before   the  sale;    that   he  had  never  made 
a  claim  to  any  interest  in  the  lease;  that  he  died  in  1853,  the  year  after  the 
sale;  that  hia  heirs  never  recognized  their  liability  to  pay  rent  to  the  owner 
of  the  fee;  and  that  more  than  thirty  years  had  elapsed  since  their  right  to 
relief  in  equity  against  the  forfeiture  of  the  privilege  of  renewing  the  lease 
had  accrued,  without  any  assertion  of  that  right  on  their  part,  the  court  held 
that  if  they  were  now  to  claim  that  right  they  would  not  be  entitled  to  a 
hearing,  and  hence  that  the  purchaser's  objection  to  the  title  could  not  be 
sustained. 

82  PBESUMPTIONS  OF  DEATH,  ETC. —  Titles  not  marketable.     Whether  a  cer- 
tain person  having  an  interest  in  the  premises,  who  had  disappeared  and  had 
not  been  heard  from  for  twenty-four  years,  was  dead,  unmarried,  without 
issue  and  intestate.     Vought  v.  Williams,  120  N.  Y.  253;  24  1ST.  E.  Rep.  195; 
8  L.  R.  A.  591;  17  Am.  St.  Rep.  634.     Seven  years,  'McDermott  v.  McDermott, 
3  Abb.  Pr.    (N.  S.)    (N.  Y.)    451;   Trimmer  v.  Gorman,  129  N.  C.   161;   39 
S.  E.  Rep.  804.     Thirty  years,  Dworsky  v.  Arndtstein,  51  N.  Y.  Supp.  597; 
29  App.  Div.  274.  Fourteen  years,  Fowler  v.  Manheimer,  75  N.  Y.  17;  70  App. 
Div.  56.    About  twenty  years,  Cerf  v.  Diener,  210  N.  Y.  156;  104  N".  E.  126. 
Thirty-five  years,  Chew  v.  Tome,  93'  'Mid.  244;  48  Atl.  701.     Whether  certain 


816  MARKETABLE    TITLE    TO    REAL    ESTATE. 

stances  must  be  such  as  to  show,  beyond  a  reasonable  doubt,  that 
he  died  unmarried,  intestate  and  without  issue.  Generally  it  may 
be  said  that  wherever  a  sufficient  length  of  time  has  elapsed  to 
raise  a  conclusive  presiimption  of  the  existence  of  any  fact,  a  title 
dependent  upon  that  fact  will  be  deemed  marketable.83  Thus, 
under  the  rule  that  ancient  deeds  coming  from  the  proper  custody 

persons  were  the  only  heirs  of  a  decedent.  Walton  v.  Meeks,  41  Hun  (X.  Y.), 
311.  A  title  founded  upon  a  decree  in  a  suit  for  specific  performance  against 
the  heirs  of  a  vendor,  is  unmarketable  when  it  appears  that  one  of  the  heirs, 
a  married  woman,  not  a  party  to  the  suit,  was  dead  when  the  decree  was 
made.  The  court  will  not  presume  that  she  died  intestate  and  without  issue, 
and  that  her  interest  vested  in  the  other  heir.  Hays  v.  Tribble,  3  B.  Alun. 
(Ky.)  106.  Titles  held  marketable.  Whether  a  certain  person  having  an 
interest  in  the  premises,  who  had  disappeared  and  had  not  been  heard  from 
for  more  than  forty  years,  had  died,  unmarried,  without  issue  and  intestate. 
Ferry  v.  Sampson,  112  N.  Y.  415;  20  X.  E.  Rep.  387;  McComb  v.  Wright, 
5  Johns.  Ch.  (X.  Y.)  263;  Demarest  v.  Friedman,  70  N.  Y.  Supp.  816;  61 
App.  Div.  576;  Day  v.  Kingsland,  57  N.  J.  Eq.  134;  41  Atl.  99.  See,  also, 
Burton  v.  Perry,  (111.)  34  X.  E.  Rep.  60;  Hitt  v.  Campbell,  (Ky.)  114  S.  W. 
7$5.  Whether  the  facts  in  a  certain  case  were  sufficient  to  sustain  a  title 
by  escheat  for  want  of  heirs.  In  re  Trustees  X.  Y.  P.  E.  Pub.  School,  31 
X.  Y.  574,  587.  In  Meyer  v.  Madreperla,  (N.  J.  L.),  53  Atl.  477,  the  pur- 
chaser rejected  the  title  offered  and  sued  to  recover  his  deposit.  The  objection 
to  the  title  was  an  outstanding  interest  in  a  sailor  who  left  his  home  in 
1879  and  had  not  been  heard  from  for  twenty  years.  It  was  held,  under  a 
N'ew  Jersey  statute  providing  that  a  person  absenting  himself  and  not  heard 
from  for  seven  years,  must  be  presumed  to  be  dead,  that  the  objection  to 
the  title  was  untenable.  The  statute  was  held  to  raise  a  conclusive  pre- 
sumption of  the  death  of  the  absentee.  The  court  said  that  this  presump- 
tion was  accompanied  by  another,  namely,  that  he  died  without  lawful  issue. 
The  questions  of  marriage  and  intestacy  were  not  considered.  In  Cambrelleng 
v.  Purton,  125  X.  Y.  610,  26  X.  E.  Rep.  907,  the  purchaser  did  not  dispute  the 
presumption  of  the  death  of  the  absentee,  but  contended  that  there  was  no 
presumption  that  he  died  unmarried  and  without  issue  before  the  death  of 
his  father,  whose  estate,  embracing  the  premises  sold,  was  partitioned  after 
publication  of  notice  against  the  absentee.  The  evidence  was  thought  sufficient 
to  justify  both  presumptions. 

••Forsyth  v.  Leslie,  77  X.  Y.  Supp.  826;  74  App.  Div.  517.  In  Lyman  v. 
Gedney,  114  111.  388;  20  X.  E.  Rep.  282,  the  grantors,  in  a  conveyance  of 
property  which  belonged  to  a  partnership,  were,  after  the  lapse  of  forty 
yearn,  presumed  to  have  been  the  persons  composing  the  firm,  the  conveyance 
it»elf  being  silent  upon  that  point.  Port  Jefferson  Realty  Co.  v.  Woodhull, 
112  X.  Y.  Supp.  678;  128  App.  Div.  188,  in  which  case  the  fact  that  nothing 
had  been  done  in  a  widow's  suit  for  dower  during  twenty  years  raised  the 
presumption  that  she  waa  dead,  or  had  been  settled  with. 


OF    DOUBTFUL    TITLES.  817 

require  no  proof,  a  title  thence  derived  could  not,  it  is  appre- 
hended, be  disputed  upon  the  ground  that  the  deeds  are  not  shown 
to  have  been  duly  executed. 

To  a  certain  extent,  every  title  depends  upon  rebuttable  pre- 
sumptions. It  has  already  been  observed  that  when  the  vendor 
shows  a  record  of  documentary  title  in  himself,  the  existence  of 
all  matters  in  pais  necessary  to  the  validity  of  that  title,  such  as 
the  competency  of  grantors  through  whom,  and  the  bona  fides  of 
conveyances  through  which,  the  title  is  derived,  will  be  presumed, 
until  the  purchaser  shows  that  there  is  ground  for  reasonable 
doubt  in  respect  to  any  such  matter.8*  If  this  were  not  true,  and 
a  vendor  could  be  required  to  show  that  everything  which  could 
possibly  invalidate  his  title,  has  no  existence  in  fact,  there  would, 
practically  be  no  such  thing  as  specific  performance  at  the  suit  of 
the  vendor;  he  would  be  required  to  prove  an  infinite  number  of 
negatives,  a  thing  as  impracticable  as  it  would  be  unreasonable. 

§  294.  TITLE  AS  AFFECTED  BY  NOTICE.  As  a  general  rule  a 
purchaser  cannot  be  compelled  to  perform  the  contract  when  the 
vendor's  title  depends  upon  a  question  of  notice  of  the  rights  of 
third  parties.85  Thus,  though  a  purchaser  with  notice,  it  has  been 
held,  may  safely  buy  from  a  purchaser  without  notice,  he  will  not 
be  compelled  to  take  the  title,  as  he  would  incur  the  risk  of  notice 
to  his  vendor  being  proved.86  But  the  mere  liability  of  a  deed 

84  Ante,  §  289.     Braun  v.  Vollmer,  85  N".  Y.  Supp.  319. 

85  Questions  of  Notice.     In  the  following  cases  titles  dependent  upon  the 
existence  of  notice  of  the  rights  of  third  persons  were  held  unmarketable. 
Whether  a  certain  person  through  whom  the  vendor  claimed,  was  a  purchaser 
without  notice  of  the  equitable  rights  of  a  stranger  in  the  premises,  under  a- 
contract  of  sale:     Morris  v.  McMiillen,  3  A.  K.  Marsh.    (Ky. )   565.     Whether 
a  grantee  of  lands  took  with  notice   of  certain   liens  upon  the   premisesi: 
Freer  v.  Hesse,  4  DeG.,  M.  &  G.  495.     Whether  a  purchaser  without  notice 
under  a  foreclosure  sale,  was  affected  by  notice  to  the  plaintiff  in  the  fore- 
closure suit:     Wagner  v.  Hodge,  34  Hun  (N.  Y.),  524.    Whether  a  subsequent 
purchaser  had  notice  of  a  prior  unrecorded  deed  of  the  premises:     Speakman 
v.  Forepaugh,  44  Pa.  St.  363. 

88 1  Sugd.  Vend.  (8th  Am.  ed.)  590,  601.  Freer  v.  Hesse,  4  De  G.,  M.  &  G. 
495.  In  Bott  v.  Malloy,  151  Mass.  477;  25  1ST.  E.  Rep.  17,  suggestions  of  a 
latent  trust  affecting  the  premises  in  the  hands  of  the  vendor  were  held  in- 
sufficient to  render  the  title  doubtful,  in  view  of  a  statute  declaring  trusts 
invalid  as  against  a  purchaser  without  notice. 

103 


818  .MARKETABLE  TITLE  TO  REAL  ESTATE. 

in  the  vendor's  chain  of  title  to  be  attacked  as  having  been  executed 
under  circumstances  that  would  render  it  invalid,  does  not  render 
the  title  doubtful,  if  the  purchaser  be  such  in  good  faith,  for  value, 
and  without  notice  of  the  invalidity  of  the  deed.87  We  have  al- 
ready seen  that  a  doubt  as  to  the  title  resting  not  on  proof  or  pre- 
sumption, but  on  a  mere  suspicion  of  mala  fides,  will  not  condemn 
the  title  as  unmarketable.88 

§  295.  BURDEN  OF  PROOF.  Inasmuch  as  the  purchaser  may 
suffer  a  heavy  loss  if  compelled  to  take  a  doubtful  title,  and  the 
vendor  can  suffer  only  the  temporary  inconvenience  of  delay  if 
his  title  be  good  and  the  purchaser  be  relieved,  the  inclination  of 
the  court  is  in  favor  of  the  purchaser,  and  the  burden  devolves 
upon  the  vendor  to  show  a  title  free  from  all  reasonable  doubt.89 
This  means,  it  is  apprehended,  no  more  than  that  the  vendor  must 
show  in  the  first  instance  a  title  free  from  doubt  so  far  as  dis- 
closed by  the  public  records,  or  the  instruments  which  evidence  the 
title.  The  competency  of  the  maker  of  every  deed  or  will  in  the 
chain  of  title  is  necessary  to  the  validity  of  that  title,  but  it  is 
plain  that  the  vendor  cannot  be  required  to  establish  such  com- 
petency affirmatively  before  it  is  questioned  by  the  purchaser. 
The  same  observation  applies  to  other  matters  in  pai$  affecting 
the  validity  of  the  title,  except,  it  is  presumed,  that  wherever  a 
break  occurs  in  the  record  chain  of  title,  such  as  would  be  caused 
by  descent,  or  by  a  parol  partition  at  common  law,  the  vendor  must 
show  facts  sufficient  to  supply  the  breach.  The  abstract  should 

"Levy  v.  Iroquois  Building  Co.,  (Md.)  30  Atl.  Rep.  707.  The  fact  that  a 
prior  grantee  of  the  premises  claims  that  a  deed  thereof  had  been  obtained 
from  him  by  fraud,  he  having  waited  more  than  six  years  without  making 
any  effort  to  recover  the  land,  does  not  render  the  title  unmarketable.  First 
Af.  M.  E.  Church  v.  Brown,  147  Mass.  296;  17  N.  E.  Rep.  549. 

•Ante,  5  285.    Prop.  VI. 

"Burroughs  v.  Oakley,  3  Swanst.  159;  Hendricks  v.  Gillespie,  25  Grat. 
(Va.)  181,  197,  citing  Sturtevant  v.  Jaques,  14  Allen  (Mass.),  523;  Rich- 
mond v.  Gray,  3  Allen  (Mass.),  25  and  Griffin  v.  Cunningham.  10  Grat.  (Va.) 
571;  McAllister  v.  Harmon,  101  Va.  17;  42  8.  E.  Rep.  920;  Upton  v.  Maurice 
(Tex.  Civ.  App.),  34  S.  W.  Rep.  642.  In  Espy  v.  Anderson,  14  Pa,  St.  308, 
it  was  held  that  it  was  the  purchaser's  business  to  show  that  the  title  was 
doubtful.  He  should  at  least  be  required  to  point  out  in  what  respect  or 
particulars  the  title  i*  doubtful,  leaving  to  the  vendor  the  burden  of  remov- 
ing the  doubt. 


OF    DOUBTFUL    TITLES.  819 

contain  affidavits  showing  the  essential  facts.  But  after  the  ven- 
dor has  shown  a  title  presumptively  good,  the  burden  devolves  on 
the  purchaser  to  show  wherein  it  is  bad  or  doubtful,90  and  to  prove 
the  facts  whereon  the  doubtfulness  of  the  title  depends.91  And 
there  are  cases  which  go  farther  and  hold  that  when  the  purchaser 
enters  into  a  contract  for  the  sale  of  lands  in  which  the  ownership 
of  the  vendor  is  assumed,  and  agrees  to  pay  the  purchase  money, 
but  does  not  require  the  vendor  to  show  a  good  title,  the  general 
rule  is  that  the  burden  is  on  the  purchaser  to  show  defects  in  the 
title  if  he  seeks  to  avoid  the  contract.  The  prima  facie  presump- 
tion is  that  he  satisfied  himself  as  to  the  sufficiency  of  the  title 
before  entering  into  the  contract.92 

§  295-a.  TESTIMONY  OF  EXPERTS  INADMISSIBLE.  The 
question  whether  the  title  is  one  which  the  purchaser  should  be 
compelled  to  take,  is  one  of  law,  to  be  determined  by  the  court 
from  the  contract ;  and  it  is  error  to  admit  the  testimony  of  attor- 
neys and  examiners  of  title  upon  that  point.93  But  it  has  been 
held  that  the  refusal  of  a  title  insurance  company  to  guarantee, 
and  of  its  general  counsel  to  approve,  the  title,  was  sufficient  to 
warrant  a  finding  that  the  title  was  unmarketable.94 

§  296.  ILLUSTRATIONS  OF  THE  FOREGOING  PRINCIPLES.  The 
English  and  American  law  reports  abound  with  cases  illustrating 
the  principles  discussed  in  this  chapter.  A  large  number  of  the 
English  cases  have  been  collected  and  referred  to  very  briefly  and 
concisely  by  Lord  St.  Leonards,  in  his  work  on  Vendors  and  Pur- 
chasers.95 Many  of  these  are  comparatively  of  little  value  to  the 

80  Ante,  §  244.  Stevenson  v.  Polk,  71  Iowa,  278;  32  N.  W.  Rep.  340;  Phillips 
V.  Day,  82  Cal.  24;  22  Pac.  Rep.  976;  Bank  v.  Ixmghran,  122  N.  C.  668;  30 
fe.  E.  Rep.  17;  Van  Gundy  v.  Shewey,  90  Kan.  253;  133  Pac.  720;  47  L.  R.  A. 
(N.  S.)  645.  The  burden  of  proving  the  title  to  be  unmarketable  rests  upon 
the  objector.  Ante,  §  281.  Greenblatt  v.  Hermann,  144  K  Y.  13;  38  N.  E. 
966;  Rosenblum  v.  Eisenberg,  108  N".  Y.  Supp.  350;  123  App.  Div.  896. 

wWitte  v.  Koerner,  108  N.  Y.  Supp.  560;   123  App.  Div.  824. 

82  Baxter  v.  Aubrey,  41  Mich.  16;  IN.  W.  Rep.  897,  citing  Dwight  v.  Cutter, 
3  Mich.  566;  64  Am.  Dec.  105;  Allen  v.  Atkinson,  21  Mich.  361. 

93  Ante,  §  283.     Evans  v.  Gerry,  174  111.  595;  51  N.  E.  Rep.  615;  Moser  v. 
Cochrane,  107  N.  Y.  35;   131  N".  E.  Rep.  442. 

94  Flood  v.  von  Marcard,  102  Wash.  140,  172  Pac.  804. 
95 1  Sugd.  Vend.   (8th  Am.  ed.)   583   (389). 


820  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

American  lawyer,  depending,  as  they  do,  upon  questions  of  law 
peculiar  to  the  English  system  of  conveyancing  and  settlement  of 
estates,  and  laws  of  real  property,  and  it  is,  therefore,  deemed 
unnecessary  to  reproduce  them  here.  But  it  is  believed  that  a  col- 
lection of  American  cases,  stated  in  the  same  concise  manner,  will 
be  found  useful  to  the  profession.  No  attempt  has  been  made  to 
separate  the  cases  in  which  the  doubt  turned  upon  a  question  of 
law  from  those  turning  upon  doubtful  questions  of  fact ;  the  effort 
has  been  rather  to  arrange  the  cases  in  groups,  having  reference 
to  the  sources  from  which  objections  to  title  most  frequently  spring. 
It  will  probably  be  found  that  in  many  of  the  cases  cited  the  title 
was  not  only  unmarketable  or  doubtful  but  absolutely  bad.  Thus, 
it  is  sometimes  said  that  a  title  derived  through  a  conveyance  exe- 
cuted by  a  married  woman  without  the  precise  forms  and  solemni- 
ties required  by  statute  in  such  cases  is  not  "  marketable."  It  is 
plain,  however,  that  such  a  title  is  not  only  doubtful  or  unmarket- 
able, but  is  absolutely  .bad,  for  such  an  instrument  is  utterly  invalid 
and  inoperative  to  convey  the  woman's  right.  If,  however,  a  grave 
doubt  should  arise  as  to  whether  there  had  been,  in  fact,  a  suffi- 
cient compliance  with  those  requisites,  and  the  court  should  be  of 
opinion  that  another  judge,  or  competent  person,  might  well  differ 
with  him  upon  the  point,  then  the  title  would  be,  in  a  technical 
sense,  not  "marketable,"  that  is,  doubtful.  But  inasmuch  as  all 
bad  titles  are  necessarily  not  marketable  in  the  sense  that  pur- 
chasers cannot  be  compelled  to  accept  them,  it  is  apprehended  that 
no  inconvenience  will  result  from  the  want  of  technical  precision 
in  the  use  of  the  term  "marketable,"  if  any  instance  thereof 
should  be  perceived. 

Defects  of  title,  with  respect  to  the  manner  in  which  they  are 
disclosed,  are  obviously  of  throe  kinds,  namely:  (1)  Those  which 
appear  upon  the  face  of  some  instrument  under  which  title  is 
claimed,  such,  for  example,  as  the  want  of  proper  words  of  con- 
veyance, or  other  essential  requisites  of  a  deed,  such  as  a  grantor, 
or  a  grantee,  or  a  seal,  or  a  sufficient  certificate  of  acknowledg- 
ment, and  other  matters  of  Jiko  kind.  (2)  Those  which  appear 
from  the  public  records;  such  as  a  prior  conveyance  to  a  stranger; 
or  the  absence  of  any  record  title  whatever;  or  the  want  of  juris- 


OF    DOUBTFUL    TITLES.  821 

diction  of  the  subject-matter  in  judicial  proceedings.  (3)  Those 
which  rest  in  parol;  that  is,  to  be  established  by  the  testimony 
of  witnesses,  such  as  the  happening  of  events  upon  which  title 
depends,  for  example,  births,  deaths,  marriages,  adverse  possession, 
the  performance  or  happening  of  conditions  antecedent  or  subse- 
quent, the  vesting  of  contingent  remainders,  and  the  like.  Cases 
arising  from  each  of  these  sources  will  be  found  in  the  preceding 
pages,  and  in  the  notes  which  follow  here. 

§  297.  Errors  and  irregularities  in  judicial  proceedings. 
Errors,  defects  and  irregularities  in  judicial  proceedings,  directly 
or  incidentally,  for  the  sale  of  lands,  are  the  occasion,  perhaps,  of 
more  objections  to  title  than  any  other  ground;  certainly,  in  cases 
in  which  confirmation  of  the  sale  is  resisted  by  the  purchaser.  In 
the  consideration  of  such  objections  an  important  rule  should  be 
constantly  borne  in  mind,  namely,  that  no  error,  defect  or  irregu- 
larity in  the  proceedings,  short  of  absolute  want  of  jurisdiction  on 
the  part  of  the  court,  or  fraud  or  mistake,  to  an  extent  that  would 
vitiate  the  proceedings,  can  affect  the  title  of  the  purchaser.  The 
reasons  for  this  rule  are  chiefly  two:  first,  because  upon  reversal 
of  a  judgment  for  error,  a  purchaser  under  the  judgment  cannot 
be  disturbed  in  his  title  and  possession,  there  being  only  restitution 
of  the  proceeds  of  the  sale  to  the  person  aggrieved;  and,  second, 
because  the  judgment  under  which  the  sale  or  conveyance  to  the 
purchaser  was  made,  cannot  be  attacked  in  any  collateral  proceed- 
ing, by  a  party  or  privy  to  the  judgment,  except  for  want  of 
jurisdiction  to  render,  or  fraud  or  mistake  in  the  procuration  or 
rendition  of  the  judgment.96  It  may  be  doubted  whether  in  every 
instance,  cited  in  the  notes  below,  in  which  the  purchaser  has  been 
relieved  from  his  bid  or  his  bargain,  on  the  ground  of  errors  and 
defects  in  judicial  proceedings  rendering  the  title  unmarketable, 
the  decision  will  stand  the  test  of  the  foregoing  rule,  inasmuch 
as  there  is  no  broad  line  of  demarcation  between  facts  which  are, 
and  those  which  are  not,  sufficient  to  show  jurisdiction  in  the 
premises.  It  is  true  that  most  of  the  cases  in  which  the  rule  that 
a  title  under  a  judicial  sale  is  not  subject  to  collateral  attack,  have 
been  those  which  arose  in  ejectment  by  parties  to  the  judgment 

89  Ante,  §  49. 


822  MARKETABLE    TITLE    To    KEAL    ESTATE. 

or  their  privies,  against  the  purchaser  or  his  privies,  and  not 
between  vendor  and  purchaser ;  -but  it  is  apprehended  that  the  rule 
would  be  the  same  in  either  case,  and  that  a  title  would  not  be 
deemed  unmarketable  simply  because  of  some  error  or  irregularity 
in  the  proceedings,  unless  there  was  a  reasonable  doubt  as  to 
whether  such  error  was  not  based  on  facts  showing  an  absolute 
want  of  jurisdiction  in  the  court.  Of  course  if  there  should  be 
a  reasonable  doubt  whether  the  court  had  jurisdiction,  the  title 
would  be  unmarketable.  Purchasers  at  judicial  sales  may  always 
before  confirmation  of  the  sale  object  that  the  title  is  doubtful 
or  unmarketable,  as  well  as  absolutely  bad.'7  As  a  general  rule 
no  such  objection  will  be  permitted  after  the  sale  has  been  con- 
firmed.98 The  defects  of  which  the  purchaser  complains  must 
be  serious  and  real.  Mere  irregularities  in  judicial  proceedings, 
through  which  the  title  passed,  capable  of  amendment  or  cor- 
rection, will  be  no  ground  upon  which  to  release  him  from  his 
contract.99  Nor  will  the  purchaser  be  relieved  if  he  made  his 
bid  with  knowledge  that  the  title  was  open  to  doubt,  even  though 
his  objection  be  made  before  confirmation  of  the  sale.1 

And  it  has  been  held  that  a  purchaser  at  a  sale  in  partition 
cannot  object  that  the  title  is  doubtful.  The  reason  given  was 
that  if  actual  partition  had  been  made  the  several  partitioners 
could  not  have  objected  to  the  title,  each  partitioner  taking  his 
allotment  cum  onere?  If  the  proceedings  in  a  suit  in  which  a 

•'Wilson  v.  White,  109  N.  Y.  69;  15  N.  E.  Rep.  749;  ShrSver  v.  Shriver. 
M,  \.  y.  .-,7.-,;  .Ionian  v.  I'oillon.  77  N.  Y.  518;  Williamson  v.  Field,  2  Sandf. 
Ch.  (X.  Y.)  533;  Lee  v.  Lee,  27  Hun  (N~.  Y.),  1;  McCahill  v.  Hamilton,  20 
Hun  (N.  Y.),  388;  Argall  v.  Raynor,  20  Hun  (N.  Y.),  567;  Cox  v.  Cor,  18 
Di«t.  Col.  1. 

*  Ante,  §  45. 

*  Dal/ell  v.  Crawford,  1  Pars.  Sel.  Cas.  (Pa.)  37;  Moot  v.  Business  Men's 
As»o.,  157  N.  Y.  201;  52  N.  E.  1.     An  order  directing  a  purchaser  at  a  ju- 
dicial sale  to  complete  the  purchase,  he  having  filed  specific  objections  to  flic 
title,  does  not  conclude  the  purchaser  as  to  questions  of  title  not  submitted  to 
the  court.     Williamson  v.  Field,  2  Sandf.  Ch.   (N.  Y.)   :.:w. 

1  Ante,  |  45.  Stewart  v.  Devries,  (Md.)  32  Atl.  Rep.  285;  Binford's  Ap- 
peal, 164  Pa.  St.  435:  30  Atl.  Rep.  298. 

*8ebring  v.  Mersereau,  9  Cow.  (N".  Y.)  344,  the  court  saying:  "Upon  a 
I. ill  for  specific  performance  of  a  contract  for  the  sale  of  real  estate  there  is 
no  doubt  that  a  court  of  equity  will  avoid  compelling  a  purchaser  to  take  a 


OF    DOUBTFUL,    TITLES.  823 

judicial  sale  is  had,  are  defective,  thereby  rendering  the  title  of 
the  purchaser  doubtful  or  unmarketable,  the  burden  of  causing 
the  necessary  steps  to  be  taken  in  the  suit  by  which  the  error  or 
irregularity  in  the  proceedings  will  be  cured,  devolves  on  the 
plaintiff  in  the  suit.  He  is  bound  to  see  that  the  action  has  been 
brought  and  prosecuted  in  accordance  with  the  provisions  of  law 
regulating  the  procedure  in  such  cases,  and  if  a  step  has  been 
omitted  or  unreasonably  taken,  thereby  invalidating  the  judgment 
as  to  any  of  the  parties  in  interest,  it  is  his  duty  to  apply  for  the 
necessary  relief  by  way  of  amendment  of  the  proceedings,  before 
he  can  insist  upon  the  purchaser's  completing  the  purchase.3 

doubtful  title.  So,  also,  of  a  purchase  under  the  foreclosure  of  a  mortgage, 
and  analogous  cases.  But  in  partition  generally,  and  in  this  case  particu- 
larly, there  is  no  dispute  as  between  the  parties  about  the  title.  Their  rights 
are  determined  when  the  order  for  partition  is  made.  Suppose  actual  par- 
tition might  have  been  made  in  this  case;  no  notice  could  have  been  taken  of 
incumbrances.  Each  takes  the  share  allotted  to  him,  and  subject  to  such 
liens  as1  exist  upon  it.  The  business  of  the  court  in  this  simple  suit,  is  not 
to  draw  into  discussion  various  and  conflicting  rights  and  equities  of  incum- 
brancers.  The  property  is  divided  cum  onere."  This  decision  is,  doubtless, 
sound,  where  the  objection  is  that  the  estate  is  incumbered,  assuming  that 
the  court  will  see  to  the  application  of  the  purchase  money  to  the  incum- 
brance.  But  it  is  difficult  to  perceive  any  reason  why  a  purchaser  at  a 
partition  sale  should  be  compelled  to  take  a  title  rendered  doubtful  by  the 
existence  of  adverse  claims  to  the  premises.  The  rule  caveat  emptor  applies 
to  such  a  sale,  and  if  he  should  be  evicted  he  would  have  no  remedy  over 
against  the  partitioners.  Ante,  §  44. 

3Crouter  v.  Crouter,  133  X.  Y.  55;  30  N".  E.  Rep.  726.  This  was  a  suit 
for  partition  to  which  non-resident  infants  were  made  parties  defendant. 
The  court  appointed  a  guardian  ad  litem  for  them  before  jurisdiction  of  their 
persons  had  been  acquired  by  the  lapse  of  a  prescribed  period  after  service 
had  been  had  upon  them  by  order  of  publication.  This  was  held  an  error 
that  made  the  judgment  rendered  in  the  suit  voidable  by  the  infants.  The 
defect,  however,  was  curable  by  proper  proceedings  to  be  taken  for  that  pur- 
pose (presumably  in  the  same  suit),  and  this,  it  was  held,  the  plaintiff  was 
bound  to  do  before  he  could  compel  the  purchaser  to  proceed  with  the  con- 
tract. 

ERRORS  AND  IRREGULARITIES  IN  JUDICIAL  PROCEEDINGS. —  Titles  held  doubt- 
ful. A  purchaser  cannot  be  compelled  to  accept  a  title  depending  upon  a 
judicial  sale  under  an  erroneous  judgment  liable  to  be  reversed.  Young  v. 
Rathbone,  1  C.  E.  Green  (N.  J.),  224;  84  Am.  Dec.  151.  Want  of  affidavit  in 
proceedings  against  unknown  heirs  renders  the  title  doubtful.  Tevis  v.  Rich- 
ardson, 7  B.  Mon.  (Ky.)  654.  An  insufficient  printer's  certificate  of  publi- 


824  MARKETABLE    TITLE    TO    REAL    ESTATE. 

cation  of  an  order  against  unknown  heirs,  makes  title  of  purchaser  at  judicial 
sale  doubtful.    Tevis  v.  Richardson,  7  B.  Mon.   (Ky.)  654.    Whether  a  pur- 
chaser can  be  compelled  to  accept  a  title  under  a  decree  against  unknown 
heirs.     Tevis  v.  Richardson,  7  B.  Mon.   (Ky.)    654.     Where  an  affidavit  for 
publication  of  summons  against  a  non-resident  failed  to  state  that  defendants 
could  not  be  found  after  due  diligence  title  of  purchaser  at  a  sale  under 
decree  against  such  defendants,  held  unmarketable.     Bixby  v.  Smith,  3  Hun 
(N.  Y.),  60.    Whether  a  decree  setting  aside  a  fraudulent  conveyance,  and 
directing  a  sale  of  the  land,  could  be  enforced  by  fieri  facias:    >McCann  v. 
Edwards,  6  B.  Mon.   (Ky.)   208,  211.     Whether  more  property  had  been  sold 
under  a  mortgage  than  was  necessary  to  satisfy  the  debts  secured:     Hemmer 
v.  Eustace,  51  Hun  (N.  Y.),  457;  3  N.  Y.  Supp.  850.     Whether  a  married 
woman,  sued  with  her  husband,  was  competent  to  confess  a  judgment  bind- 
ing her  separate  estate:     Swayne  v.  Lyon,  67  Pa.  St.  436.     Whether  the 
declaration  in  a  euit  against  husband  and  wife  for  materials  furnished  for 
the  improvement  of  the  wife's  separate  estate,  was  so  drawn  that  a  judgment 
for  the  plaintiff  by  confession  absolutely  concluded  the  wife  from  afterwards 
showing  that  the  materials  were  not  furnished  for  the  improvement  of  such 
estate:     Swayne  v.  Lyon,  67  Pa.  St.  436.     Whether  a  judgment  creditor, 
suing  to  set  aside  a  conveyance  from  husband  to  wife,  was  bound  by  an 
order  giving  leave  to  file  a  complaint  nunc  pro  tune  in  a  proceeding  to  which 
such  creditor  was  not  a  party,  so  as  to  antedate  the  filing  of  his  complaint. 
Weeks  v.  Tomes,  16  Hun   (N".  Y.),  349.     Whether  the  Special  Term  of  the 
Supreme  Court  of  New  York  had  power  to  make  an  order  providing  for  serv- 
ice of  summons  by  publication:     Crosby  v.  Thedford,  13  Daly   (N.  Y.),  150. 
A  sale  of  the  land  of  a  non-resident  under  an  order  or  decree  of  court  is  void, 
if  publication  of  process  be  made  for  less  time  than  that  required  by  law. 
Jarboe  v.  McAtee,  7  B.  Mon.  (Ky.)  279.    Whether  a  lien  on  the  real  estate  of 
a  county  treasurer's  surety  attached  from  the  date  of  process  in  a  euit  on  the 
treasurer's  bond,  or  whether  it  attached  only  at  the  time  of  service  of  the 
process:     Snyder  v.  Spaulding,  57  111.  480.    Where  a  petition  for  the  sale  of 
real  estate,  the  object  of  which  is  to  defeat  a  contingent  remainder,  fails  to 
set  forth  such  purpose  as  required  by  the  statute  under  which  the  proceeding 
is  had,  the  title  of  a  purchaser  under  a  decree  in  such  cause  will  be  un- 
marketable:   Westhafer  v.  Koons,  144  Pa.  St.  26;  22  Atl.  Rep.  885.    Whether 
a  title  dependent  upon   the   action   of   the  court  in   amending,   ex  parte,   a 
summons  against  a  mortgagor,  who  had   been  summoned   under  the  wrong 
Christian  name,  was  marketable:     Stuyvesant  v.  Weil,  58  N.  Y.  Supp.  697; 
41  App.  Div.  551.    Where  the  record  in  a  suit  by  an  executor  for  leave  to  sell 
the  decedent's  lands,  failed  to  show  that  the  executor  had  executed  a  bond,  as 
required  by  law.     Taylor  v.  Chamberlain,  30  N.  Y.  Supp.  737;  6  App.  Div. 
38.    Whether  a  probate  court  in  Connecticut  had  power  to  sell  real  property 
for  payment  of  debts  of  decedent  as  well  as  for  partition :    Taylor  v.  Chamber- 
lain, 39  N.  Y.  Supp.  737;  6  App.  Div.  38.    Whether  the  failure  of  the  judge 
to  sign  an  interlocutory  order  authorizing  sale  and  partition  was  such  an 
irregularity  as  affected  the  title  held  under  such  order:     Hecker  v.  Brown, 
104  La.  524;  29  So.  Rep.  232.    Whether  a  foreclosure  sale  might,  under  the 
Uws  of*Michigan,  be  made  more  than  ten  years  after  a  decree  directing  the 


OF    DOUBTFUL    TITLES.  825 

sale:  Walker  v.  Oilman,  127  Mich.  269;  86  N.  W.  Rep.  830.  Whether  a 
bill  by  a  grantor  to  set  aside  his  deed  on  the  ground  of  fraud  and  undue 
influence,  was  lawfully  discontinued  by  his  committee  upon  his  death,  he 
having  been  adjudged  a  lunatic  before  his  death:  Stobert  v.  Smith,  184  Pa. 
34;  38  Atl.  1019.  Whether  a  decree  of  separation  between  parties  neither  of 
whom  was  a  resident  of  the  State,  was  valid,  so  as  to  authorize  the  wife  to 
convey  dotal  property  free  of  the  rights  of  the  husband:  Carter  v.  Morri-3 
B.  &  L.  Asso.,  108  La.  143;  32  So.  Rep.  473.  Whether  the  court  had  juris- 
diction to  order  a  sale  of  decedent's  realty  by  the  administrator.  Koch  v. 
Streuter,  232  111.  594;  83  N.  E.  1072.  Whether  the  surrogate  had  juris- 
diction to  authorize  a  guardian  ad  litem  to  compromise  a  suit  by  him  to 
establish  a  devise  of  realty  to  the  infant.  Dixon  v.  Cozine,  114  N.  Y.  Supp. 
615.  Whether  an  affidavit  for  publication  of  process,  failing  to  show  what 
effort  had  been  made  to  find  defendant,  was  sufficient.  Reid  v.  Johnson,  121 
N".  Y.  Supp.  750.  Whether  the  court  had  jurisdiction  to  enter  judgment  by 
default  in  an  action  to  quiet  title  in  which  the  complaint  did  not  allege  that 
plaintiff  had  ever  been  in  possession.  Lese  v.  M'etzinger,  105  N.  Y.  Supp. 
888.  Whether  sufficient  notice  of  an  order  to  show  cause  against  a  probate 
sale  had  been  given.  Weaver  v.  Esary,  78  Wash.  640;  139  Pac.  607.  Where 
the  title  depended  upon  a  decree  based  on  service  by  publication  of  process, 
such  decree  being  liable  to  be  vacated  at  any  time  within  three  years.  Mc- 
Nutt  v.  Nellans,  82  Kan.  424;  108  Pac.  834.  Whether  a  title  claimed  under  a 
will  was  affected  iby  the  failure  of  the  executor  to  file  an  inventory  of  the 
estate.  Atwood  v.  Fagan,  63  Tex.  Civ.  App.  659;  134  S.  W.  765. 

Titles  held  marketable. —  Whether  a  deputy  clerk  has  power  to  administer 
oaths  in  a  suit  pending  before  the  court:  Mullins  v.  Porter,  4  Heisk. 
(Tenn.)  407.  Whether  a  failure  to  serve  a  summons  on  the  wife  in  a  suit 
to  foreclose  a  purchase-money  mortgage  executed  by  the  husband,  affected 
the  title  of  the  husband  as  purchaser  at  the  foreclosure  sale:  Watson  v. 
Church,  3  Hun  ( N".  Y. ) ,  80.  Whether  the  sanction  by  a  court  of  chancery 
of  a  sale  of  property  belonging  to  a  religious  corporation  validated  the  sale, 
where  the  law  required  the  sanction  of  that  court  before  the  sale:  Dutch 
Church  v.  Mott,  7  Paige  (N.  Y.),  77.  Whether  a  petition  for  partition  of 
lands  need  be  sworn  to:  Martin  v.  Porter,  4  Heisk.  (Tenn.)  407.  Whether 
a  certain  advertisement  of  a  sale  under  a  mortgage  was  sufficient:  Streeter 
v.  Illsley,  151  Mass.  291;  23  N.  E.  Rep.  837;  White  v.  Bates,  234  111.  276; 
84  N".  E.  906.  Whether  the  failure  of  the  court  to  appoint  an  attorney  to 
represent  aibsent  heirs  in  a  suit  for  partition  invalidated  the  title  of  a  pur- 
chaser at  a  sale  in  such  suit:  Mather  v.  I/ehman,  (La.  Ann)  10  So.  Rep. 
939.  Whether  the  improper  designation  of  unknown  parties  in  a  summons, 
rendered  the  title  doubtful:  Lenehan  v.  College,  etc.,  63  N".  Y.  Supp.  1033; 
30  Misc.  378.  Whether  the  heirs  of  one  who  had  mortgaged  his  interest 
in  a  trust  estate,  which  mortgage  was  foreclosed,  were  entitled  to  notice  of  an 
application  for  the  appointment  of  a  trustee  of  the  estate:  Van  Wyck  v. 
Richman,  68  N.  Y.  Supp.  473,  33  Mfisc.  404.  Whether  an  infant,  who  appeared 
by  guardian  below,  was  bound  by  a  decree  rendered  on  appeal  in  a  suit  by 
the  vendor  for  specific  performance:  Early  v.  Douglas,  23  Ky.  Law  R.  298, 

104 


826  MARKETABLE    TITLE    To    REAL    ESTATE. 

The  mere  fact  that  the  right  of  appeal  from  a  judgment,  on 
which  the  title  depends,  has  not  expired,  does  not  render  the  title 
doubtful.4 

§  298.  Sales  of  the  estates  of  persons  under  disabilities.  The 
courts  exact  a  rigid  compliance  with  all  the  provisions  of  law  by 
which  sales  of  the  estates  of  infants,  or  other  persons  who  are 
not  sui  juris,  are  governed.  Such  sales  are  to  be  made  only  upon 
authority  obtained  in  judicial  proceedings  instituted  for  that 
purpose,  or  by  special  act  of  the  legislature,  and  the  statutes  in 
most  of  the  States  provide  that  the  pleadings  shall  show  the 
necessity  of  the  sale ;  that  they  shall  be  verified  by  the  oath  of  the 
guardian,  or  other  person,  and  that  no  sale  shall  be  directed  unless 
the  allegations  of  the  necessity  therefor  be  sustained  by  testimony 

62  S.  W.  Rep.  860.  The  fact  that  an  order  for  publication  of  summons  in  a 
suit  for  partition  was  signed  only  with  the  initials  of  the  judge,  is  no  suffi- 
cient objection  to  the  title.  Volz  v.  Steiner,  73  X.  Y.  Supp.  1006,  67  App. 
Div.  504.  Verification  of  a  petition  for  appointment  of  a  guardian  ad  litem 
before  a  notary,  who  was  attorney  in  the  suit,  is  no  ground  of  objection  to 
the  title  when  the  essential  facts  stated  in  the  petition  appear  in  a  subsequent 
affidavit  in  the  cause.  Baumeister  v.  Deinuth,  82  N.  Y.  Supp.  831,  84  App. 
Div.  .'J04.  The  possibility  that  a  decree,  under  which  the  vendor  holds,  may 
In1  opened  in  In-half  of  non-resident  defendants,  is  no  objection  to  the  vendor's 
title  if  the  proceedings  in  the  cause  appear  to  have  been  regular.  Hays  v. 
Tribble,  3  T.  B.  'Mon.  (Ky.)  106.  As  to  What  irregularities  in  proceedings 
before  a  surrogate  for  the  sale  of  a  decedent's  real  estate  for  the  payment  of 
his  debts,  will  not  render  the  title  doubtful,  see  Regney  v.  Coles,  6  Bos. 
(X.  Y.)  479.  In  Stevenson  v.  Polk,  71  Iowa,  278,  32  X.  W.  Rep.  340,  the 
possibility  that  defendants,  on  whom  process  had  been  served  by  publication, 
would  appear  and  take  advantage  of  an  irregularity  in  the  proceedings,  was 
held  insufficient  to  make  the  title  unmarketable.  Whether  the  sufficiency  of 
an  affidavit  for  publication  of  process  could  be  attacked  in  a  collateral  pro- 
ceeding. Carman  v.  Bedell,  144  X.  Y.  Supp.  328,  82  Misc.  Rep.  652.  Whether 
the  deed  of  a  referee  in  a  foreclosure  proceeding  was  sufficient,  the  record 
failing  to  show  proof  of  pliintifTs  case  and  examination  of  plaintiff  as  to 
payments.  Brody  &  Co.  v.  H«K-hstadter,  144  N.  Y.  Supp.  831,  160  App.  Div. 
310.  Whether  a  final  decree  for  distribution  in  a  probate  proceeding,  entered 
by  consent  of  all  parties  in  interest,  was  conclusive  upon  them.  Barette  v. 
Whitney,  30  Utah  574,  106  Pac.  522,  37  L.  R,  A.  (N.  S.)  368.  Whether  serv- 
ice  by  publication  on  "  Bothwick  "  wan  good  as  service  on  Borthwick.  Harrel 
v.  N*ef,  80  Kan.  348,  102  Pac.  838.  Whether  validity  of  sale  by  trustee  in 
bankruptcy  was  affected  by  his  failure  to  file  copy  of  adjudication  with  the 
recorder  of  deeds.  Kennedy  v.  Holl,  103  N.  Y.  Supp.  231. 
4  Adami  v.  Backer,  60  X.  Y.  Supp.  683,  29  Mi»c.  93. 


OF    DOUBTFUL    TITLES.  827 

taken  in  the  presence  of  a  guardian  ad  litem.  These  provisions 
and  others  of  like  character  go  to  the  jurisdiction  of  the  court, 
and  if  they  be  not  complied  with,  the  court  has  no  power  to  order 
a  sale.  One  of  the  most  important  points  to  which  the  attention 
of  the  purchaser  must  be  directed  in  this  connection  is  that  the 
person  under  disabilities  shall  have  been  represented  by  guardian 
ad  litem,  or  other  appropriate  person,  in  the  proceeding  to  sell. 
Even  the  rights  of  unborn  children  must  be  protected  by  having 
a  representative  of  their  interests  before  the  court.5  The  rule 
that  a  purchaser  will  not  'be  compelled  to  take  a  doubtful  title 
applies  with  special  force  where  infants  are  not  concluded  by  the 
judgment  or  decree  in  proceedings  for  the  sale  of  lands  in  which 
they  are  interested.6 

It  has  been  held,  in  ISTew  York,  that  the  legislature  has  power 
to  order  the  sale  of  separate  pieces  of  land  belonging  to  separate 
families  of  infants  severally  interested,  and  to  direct  the  proceeds 
to  be  brought  into  a  common  fund  for  partition,  and  that  a  title 
dependent  upon  a  sale  under  such  an  act  was  marketable.7  In  a 
case  in  Alabama  the  purchaser  denied  the  power  of  the  legislature 
to  authorize,  by  private  act,  the  sale  of  infant's  lands  by  their 
mother,  who  was  not  their  guardian,  but  the  court  held  that  the 
power  existed,  and  required  the  purchaser  to  take  the  title.8 

5 Holmes  v.  Wood,  (Pa.)  32  Atl.  Eep.  54.  One  of  the  interests  sold  in  this 
case  was  liable  to  open  to  admit  after-born  children,  and  there  being  no 
representative  of  such  prospective  interests  before  the  court,  the  title  of  a 
purchaser  at  a  sale  in  the  cause  was  held  doubtful. 

•James  v.  Meyer,  41  La.  Ann.  1100,  7  So.  Rep.  618. 

7  Ebling  v.  Dwyer,  149  1ST.  Y.  460,  44  1ST.  E.  155. 

8  Munford  v.  Pearce,  70  Ala.  452. 

SALE  OF  INFANT'S  ESTATE,  ETC. —  Titles  field  not  marketable.  Whether  the 
rights  of  an  infant  heir  of  a  mortgagor  were  concluded  by  an  illegal  sale 
under  the  mortgage:  Hemmer  v.  Hustace,  51  Hun  (N.  Y.),  457,  3  N".  Y.  Supp. 
850.  Whether  want  of  personal  service  upon  certain  infant  defendants  in 
partition  invalidated  a  judgment  therein  rendered:  Swain  v.  Fidelity  Ins. 
Co.,  54  Pa.  St.  455.  Whether  in  a  case  in  which  there  was  no  jurisdiction  for 
partition  except  by  consent,  jurisdiction  could  be  given  by  consent  where  the 
rights  of  infants  were  involved:  Scheu  v.  Lehning,  31  Hun  (N.  Y.),  183. 
Whether  certain  irregularities  in  proceedings  for  the  sale  of  an  infant's 
estate  vitiated  the  title  of  the  purchaser :  Gills  v.  Wells,  59  Md.  492.  Whether 
notice  of  a  tax  sale  served  on  infant  owners  in  person  without  the  appoint- 
ment of  a  guardian  ad  litem  was  sufficient  to  conclude  them:  Levy  v.  New- 


828  MARKETABLE    TITLE    TO    REAL    ESTATE. 

§  299.   Want  of  parties  to  suits.     A  judgment  or  decree  is  in 
no  way  conclusive  upon  a  person  in  interest  who  was  not  a  party 

man,  50  Hun  (X.  Y.),  438,  3  X.  Y.  Supp.  324.  Whether  a  judgment  in  a  suit 
for  partition  of  an  estate  among  devisees  barred  the  rights  of  unborn  children 
in  remainder,  the  judgment  not  providing  for  their  protection:  Monarque  v. 
Monarque,  80  X.  Y.  320.  Whether  a  court  of  chancery  had  power  to  confirm 
an  illegal  sale  of  an  infant's  land  made  'by  the  father:  Linkous  v.  Cooper.  2 
W.  Va.  67.  Whether  an  appearance  by  an  infant  in  partition  by  next  friend 
instead  of  a  guardian  ad  litcm,  was  irregular  and  invalid:  Swain  v.  Fidelity 
Ins.  Co.,  54  Pa.  St.  455.  Whether  the  appointment  of  a  guardian  ad  litrm 
for  an  infant  defendant  in  a  certain  case  was  valid :  Uhl  v.  Laughran,  4  X.  Y. 
Supp.  827,  22  X.  Y.  St.  Rep.  459.  Whether  a  certain  conveyance  by  executors 
was  in  fraud  of  the  rights  of  infants  claiming  under  the  will :  Stevens  v. 
Banta,  47  Hun  (X.  Y.),  329.  Whether  a  guardian's  sale  of  the  lands  of  his 
ward  without  authority  was  validated  by  a  license  to  sell  afterwards  ob- 
tained :  Williams  v.  Schembri,  44  'Minn.  250,  46  N.  W.  Rep.  403.  Whether 
a  sale  of  an  infant's  estate  ostensibly  for  the  benefit  of  the  infant  'but  really 
to  assist  another  to  get  possession  of  the  property  was  valid,  a  fair  price 
having  been  realized  for  the  property  and  no  fraud  intended:  Weinstock  v. 
Levison,  26  Abb.  X.  Cas.  (X.  Y.)  244,  14  X.  Y.  Supp.  64.  The  failure  of  a 
guardian  ad  litem  to  file  a  bond  with  the  clerk  in  proceedings  for  sale  of  an 
infant's  lands  cannot  be  cured  by  an  order  nunc  pro  tunct  made  without 
notice  to  the  infant  or  other  parties;  and  the  purchaser  cannot  be  required 
to  take  a  title  dependent  upon  the  validity  of  such  proceedings.  Walter  v. 
De  Graaf,  19  Abb.  X.  Cas.  (X.  Y.)  406.  A  title  founded  on  a  decree  against 
an  infant  is  invalid,  since  the  infant  may  show  cause  against  the  decree  after 
arriving  at  majority.  Bryan  v.  Read,  1  Dev.  &  Bat.  Eq.  (X.  C.)  86.  This 
proposition,  it  is  believed,  should  be  limited  to  cases  in  which  there  is  reason- 
able ground  to  apprehend  that  the  infant  will  be  able  to  show  cause;  other- 
wise there  can  be  no  stability  of  titles  under  decrees  in  suits  to  which  there 
were  infant  defendants.  Whether  a  probate  judge  could  lawfully  grant  leave 
to  sell  "on  the  premises"  lands  of  minors  not  situated  in  a  city:  Home  v. 
Rogers,  113  Ga.  224,  38  S.  E.  Rep.  768.  The  fact  that  lands  of  an  intestate 
were  purchased  at  an  administrator's  sale,  partly  for  the  administrator's 
benefit,  the  rights  of  minor  heirs  of  the  intestate  being  involved,  renders  a 
title  held  under  such  sale  unmarketable.  Griffith  v.  Maxfield,  63  Ark.  548, 
39  S.  W.  Rep.  852.  Whether  widow,  guardian  in  socage  of  her  infant  child, 
could  take  title  to  the  infant's  realty  under  a  sale  by  special  guardian. 
Feller  v.  Mitchell,  103  X.  Y.  Supp.  269.  Whether  sale  by  guardian  was 
affected  by  his  failure  to  file  the  sale  bond  required  by  statute.  Hubachek  v. 
Bank.  117  Minn.  163,  134  X.  W.  640,  Ann.  Cas.  1913  D.  187.  Whether  the 
bringing  of  the  proceeds  of  the  sale  into  court  cured  the  illegality  of  the 
sale.  Scheuermann  v.  De  Latour,  130  La.  549,  58  So.  223.  Whether  a 
irnardian  was  competent,  after  the  death  of  tke  ward,  to  carry  out  a  license 
to  her  and  to  the  ward  to  sell  and  convey  the  ward's  property.  Costello  v. 
Tasker,  227  Mass.  220,  116  X.  E.  573.  Whether  a  certain  transaction,  in 
which  a  guardian  ad  litem  became  the  purchaser  of  the  property,  was  void 
cr  merely  voidable.  McKean  v.  Hill.  151  X.  Y.  Supp.  689,  166  App.  Div.  18. 


OF    DOUBTFUL    TITLES.  829 

to  the  proceeding  in  which  such  judgment  or  decree  was  pro- 
nounced.9     Hence  a  title  so  derived,  'being  always  open  to  col- 

Titles  held  marketable. —  Whether  a  creditor  of  an  infant  was  competent 
to  act  as  his  next  friend  in  a  suit  for  partition:  O'Reilly  v.  King,  28  How. 
Pr.  (N.  Y.)  408.  Whether  the  appointment  of  a  guardian  ad  litem  in  a  suit 
is  valid  when  it  does  not  appear  by  affidavit  that  the  infant  defendants  have 
no  regular  guardian:  Martin  v.  Porter,  4  Heisk.  (Tenn.)  407.  Whether 
a  guardian  ad  litem  for  an  infant  defendant  can  be  appointed  by  a  judge  at 
chambers:  Disbrow  v.  Folger,  5  Abb.  Pr.  (N.  Y.)  53.  Whether  a  petition 
for  the  sale  of  an  infant's  estate  may  be  presented  by  the  parent  as  natural 
guardian  instead  of  by  next  friend:  Ex  parte  Whitlock,  32  Barb.  (N.  Y.) 
48.  Whether  a  clerical  error  in  the  date  of  an  affidavit  by  a  guardian  ad 
litem  in  a  suit  for  partition  vitiated  the  proceedings:  Martin  v.  Porter,  4 
Heisk.  (Tenn.)  407.  Whether  a  judgment  confirming  a  sale  in  partition  was 
conclusive  upon  infant  defendants:  Reed  v.  Reed,  46  Hun  (N.  Y.),  212. 
See,  also,  Scholle  v.  Scholle,  55  N.  Y.  Super.  Ct.  468.  Whether  the  legis- 
lature could  pass  a  special  act  authorizing  the  sale  of  certain  property  be- 
longing to  minors,  the  sale  being  for  their  benefit:  Munford  v.  Pearce,  70 
Ala.  452.  Whether  an  act  providing  for  substituted  service  was  binding  on 
unknown  infant  heirs:  Steinhardt  v.  Baker,  49  N.  Y.  Supp.  357,  25  App. 
Div.  197.  Whether  unknown  infants  would  be  bound  by  a  decree  for  sale 
by  a  referee  in  a  case  in  which  the  executors  were  empowered  by  the  will  to 
sell,  the  proceeding  not  being  the  ordinary  statutory  application  for  the 
safe  of  infants'  lands,  but  a  proceeding  for  other  relief  to  which  the  sale 
was  a  mere  incident.  Adami  v.  Backer,  60  N".  Y.  Supp.  683,  29  Misc.  93. 
Failure  of  the  records  to  show  title  out  of  an  executor,  and  the  possible 
existence  of  persons  under  disabilities  are  not  sufficient  objections  to  the  title, 
where  there  is  evidence  that  the  whole  of  the  testator's  realty  was  converted 
into  personalty,  and  that  the  only  persons  who  could  lay  claim  to  the  prem- 
ises, received  their  shares  of  the  personalty.  Doll  v.  Pizer,  89  N.  Y.  Supp. 
277,  96  App.  Div.  194.  Where  husband  and  wife  were  parties  to  a  suit 
to  foreclose  a  mortgage,  and  the  husband  purchased  the  premises,  he  could 
not  object  that  the  appearance  of  his  wife,  an  infant,  by  attorney  instead  of 
guardian  ad  litem  was  such  an  error  as  made  the  title  unmarketable,  since 
her  dower  rights  were  unimpaired,  the  husband  being  the  purchaser.  Knight 
v.  Maloney,  4  Hun  (N.  Y. ),  34.  Description  of  curatrix  as  "guardian"  in 
a  proceeding  for  the  sale  of  an  infant's  lands  does  not  impair  the  title. 
Mitchener  v.  Holmes,  (Mo.)  22  S.  W.  Rep.  1070.  Where  the  infants  were 
by  their  guardian  ad  litem,  parties  to  the  suit  to  compel  specific  performance 
by  the  vendor.  Guy  v.  Hansow,  86  Kan.  933,  122  Pac.  879.  Whether  the 
heirs  of  an  Indian  allottee  of  land  were  concluded  by  their  conveyance  of 
the  land  in  fee  (approved  by  the  Secretary  of  the  Interior)  and  by  the  decree 
of  a  State  court  quieting  the  title  of  the  grantee.  Egan  v.  McDonald,  36  S.  D. 
92,  153  N.  W.  915.  Whether  a  decree  of  partial  distribution  would  have  the 
effect  of  precluding  objections  by  minors  —  distributees  —  to  the  validity  of 
the  sale.  French  v.  Phelps,  20  Cal.  App.  101,  128  Pac.  772. 

9  Ante,  §  287. 


830  MARKETABLE    TITLE    To    REAL    ESTATE. 

lateral  attack,  is  not  only  doubtful,  but  absolutely  bad.  But 
questions  frequently  arise  as  to  whether  certain  persons  were 
necessary  parties  to  proceedings  resulting  in  the  sale  of  lands. 
Wherever  such  persons  have  not  been  made  parties,  and  the  ques- 
tion whether  their  presence  was  properly  dispensed  with,  admits 
of  reasonable  doubt,  either  upon  the  law  or  the  facts,  a  title 
depending  upon  such  question  becomes,  in  a  technical  sense, 
doubtful  or  unmarketable,  and  such  as  a  purchaser  cannot  be  com- 
pelled to  take.10  Illustrations  will  be  found  in  the  notes  below. 
The  mere  non-joinder  of  persons  who  would  have  been  proper 
parties  to  the  suit,  but  were  not  absolutely  necessary  parties,  does 
not,  in  every  instance,  create  a  sufficient  doubt  as  to  the  title. 
Thus,  it  has  been  held  that  the  non-joinder  of  the  heirs  of  a  dece- 
dent as  defendants  in  a  suit  to  enforce  a  mechanic's  lien  against 
his  estate  did  not  raise  a  tenable  doubt  as  to  the  validity  of  a  title 
derived  under  a  sale  in  such  suit,  in  the  absence  of  anything  to 
show  that  there  was  a  good  defense  to  the  suit.11  The  bare  pos- 
sibility that  there  may  have  been  persons  who,  if  they  existed, 
would  have  been  necessary  parties  to  the  suit,  presents  no  objec- 
tion to  the  title.  Therefore,  in  a  proceeding  for  partition  in 
which  the  pleadings  set  forth  certain  persons  as  heirs  entitled  to 
partition,  it  was  held  that  the  mere  fact  that  there  might  haw 
been  other  heirs  than  those  stated  did  not  make  the  title  doubtful, 
there  being  nothing  to  show  that  such  other  heirs  had  probably 
existed.11  Where  the  title  depended  on  a  like  proceeding,  and  the 

"Dworsky  v.  Arndtstein.  31  N.  Y.  Supp.  597,  29  App.  Div.  274. 

"Reece  v.  Haymaker  (Pa.).  20  Atl.  Rep.  404. 

"Greenblatt  v.  Hermann.  144  N.  Y.  13,  38  X.  E.  Rep.  966. 

WAXT  OF  PARTIES  —  Titl»  held  not  marketable.  Whether  a  Bale  of  lands 
for  payment  of  a  deredent's  debts  was  valid  without  notice  of  the  proceed- 
ing to  the  heirs:  Littlefield  v.  Tinsley,  26  Tex.  35H.  Whether  the  heirs  of 
A.  should  have  been  made  parties  to  a  suit  in  which  it  was  decided  that  a 
deed  was  made  to  A.  by  mistake:  Mead  v.  Altgeld,  33  111.  App.  373,  26 
N.  E.  Rep.  388.  Whether  a  tenant,  by  the  eurtesy  of  an  undivided  interest 
in  mortgaged  premise*,  i-hould  have  been  made  a  party  to  a  proceeding  to 
foreclose  a  mortgage:  liecker  v.  Sexton,  6  N.  Y.  State  Rep.  680.  Whether 
it-Main  children  having  an  interest  in  remainder  in  mortgaged  premises 
should  have  been  made  parties  to  a  Miit  to  foreclose  the  mortgage:  Lockmnn 
v.  Reilly,  29  Hun  (N.  Y.),  434.  See,  also,  Moore  v.  Appleby,  108  N.  Y.  237. 
15  N.  E.  Rep.  377.  Whether  certain  contingent  remaindermen  should  have 


OF    DOUBTFUL    TITLES.  831 

record  therein  showed  that  all  parties  apparently  in  interest  had 
been  made  parties  to  the  suit,  it  was  held  that  the  burden  was  on 
the  purchaser  to  show  that  some  necessary  party  was  omitted 

been  made  parties  defendant  to  a  foreclosure  suit:  Nodine  v.  Greenfield, 
7  Paige  (N.  Y.)  544;  N.  Y.  Sect.  &  Tr.  Co.  v.  Schomberg,  84  N.  Y.  Supp. 
359,  87  App.  Div.  262.  B.,  tenant  in  common  with  A.,  devised  his  interest 
to  his  wife  during  widowhood,  and  in  the  event  of  her  marriage,  then  to 
his  children.  B/s  widow  and  A.  made  partition  of  the  estate  among  them- 
selves, but  B.'s  children  not  having  been  made  parties  to  the  partition,  A.'s 
title  was  held  unmarketable.  Herzberg  v.  Irwin,  92  Pa.  St.  48.  The  fact 
that  a  record  in  partition,  under  which  title  is  derived,  fails  to  show  that 
certain  persons  not  joined  as  parties,  who  would  be  necessary  parties  if 
capable  of  taking,  were  incapable  for  any  reason  (alien  enemies,  for  example), 
and,  therefore,  properly  omitted,  renders  the  title  doubtful.  Toole  v.  Toole, 
112  N".  Y.  333,  22  Abb.  N.  C.  392.  A  title  resting  on  a  sale  under  execution 
against  heirs  upon  a  judgment  founded  on  a  sci.  fa.  in  which  the  heirs  were 
not  specially  named  is  unmarketable.  Newman  v.  'Maclin,  5  Hayw.  (Tenn.) 
241;  Williams  v.  Seawell,  1  Yerg.  {Tenn.)  83;  Henderson  v.  Overton,  2  Yerg. 
(Tenn.)  394,  24  Am.  Dec.  492.  B.,  tenant  in  common  with  C.,  devised  his 
estate  to  his  wife  subject  to  legacies.  The  widow  conveyed  her  moiety  to  the 
other  co-tenant,  C.,  and  on  his  death  his  heirs  brought  suit  for  partition 
among  themselves.  B.'s  estate  was  insufficient  to  pay  the  legacies.  B.'s  lega- 
tees not  having  been  made  parties  to  the  suit,  the  title  thence  derived  was 
held  doubtful.  Jordan  v.  Poillon,  77  N.  Y.  518,  a  leading  case.  See,  also, 
Argall  v.  Raynor,  20  Hun  (N.  Y.),  267;  Scholle  v.  Scholle,  55  X.  Y.  Super. 
Ct.  474.  Where  a  third  person,  not  a  party  to  a  suit  for  partition,  had 
a  right  to  enforce  a  power  of  sale  against  the  land  in  the  hands  of  the 
partitioner  and  those  claiming  under  them,  the  title  was  held  unmarketable. 
Ford  v.  Belmont,  7  Rob.  (N.  Y.)  97,  111.  A  purchaser  will  not  be  required 
to  take  a  title  under  a  decree  in  a  suit  for  the  construction  of  a  will  to  which 
all  persons  in  interest  were  not  parties.  Sohier  v.  Williams,  1  Curt.  (C.  C.) 
479.  Where  the  question  was  whether  certain  acts  of  a  widow  amounted  to 
an  election  to  accept  a  provision  made  for  her  in  her  husband's  will,  and 
the  question  was  decided  in  the  affirmative,  she  not  being  a  party  to  the 
proceeding  in  which  the  question  was  raised,  a  title  depending  thereon  was 
held  unmarketable:  Reynolds  v.  Strong,  82  Hun  (N.  Y.),  202,  31  N.  Y. 
Supp.  329.  Where  it  appeared  that  a  third  person  might  claim  an  interest 
in  the  land  by  reason  of  his  not  having  been  made  a  party  to  the  suit.  Smith 
v.  Hunter,  241  111.  514,  89  N.  E.  685,  132  Am.  St.  Rep.  231. 

Titles  held  marketable. —  Whether  a  judgment  in  a  suit  by  one  proprietor 
declaring  an  assessment  void  for  certain  defects  in  the  statute  under  which 
it  was  laid  was  conclusive  in  favor  of  other  proprietors  not  parties  to  the 
proceeding:  Chase  v.  Chase,  95  N".  Y.  373.  Whether  an  assignee  for  the 
benefit  of  creditors  should  have  been  made  a  party  to  a  suit  to  foreclose  a 
mortgage  executed  before  the  assignment:  Wagner  v.  Hodge,  34  Hun  (N.  Y.), 
524.  Whether,  in  a  certain  case  in  which  remaindermen  had  not  been  made 


832  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

whereby  the  title  was  rendered  unmarketable.13  The  bare  possi- 
bility that  one  of  the  defendants,  who  was  proceeded  against  as 
a  non-resident,  might  appear  at  some  future  period  and  make 
objections  to  the  decree,  is  no  ground  on  which  title  under  such 
decree  can  be  held  doubtful.14 

§  299-a.  Irregularities  in  foreclosure  sales.  A  great  number 
of  titles  depend  upon  sales  under  deeda  of  trust  and  "power  of 
sale  "  mortgages  executed  to  secure  the  payment  of  debts.  These 
sales  are  made  by  the  trustee  or  mortgagee,  without  the  interven- 
tion of  the  courts,  after  advertisement  and  the  observance  of  other 

parties  to  a  suit  for  partition,  they  were  concluded  by  a  judgment  in 
a  subsequent  suit  to  which  they  were  parties,  by  which  it  was  determined 
that  they  had  no  interest  in  premises  allotted  to  a  party  to  such  partition 
suit  under  whom  the  vendor  claims:  Paget  v.  Melchior,  58  N.  Y.  Supp.  913, 
42  App.  Div.  76.  Whether  the  possible  heirs  of  a  married  woman  were  bound 
by  a  decree  in  a  suit  by  her  to  reform  a  deed  drawn  by  mistake  to  convey 
land  to  her  use  for  life  with  remainder  to  her  heirs,  instead  of  conveying  to 
her  an  absolute  fee  simple:  Kendall  v.  Crawford,  25  Ky.  Law  R.  1224,  77 
S.  W.  Rep.  364.  Testator  devised  certain  property  to  his  wife  for  life,  with 
remainder  to  their  married  daughter  for  life,  and  remainder  over  to  her 
children.  The  widow  disclaimed  under  the  will,  and  claimed  the  property  as 
her  separate  estate,  and  brought  a  suit  against  the  married  daughter  and 
the  living  children  of  such  daughter,  to  quiet  her  title  to  the  property.  There 
was  a  decree  in  her  favor.  Held,  that  title  under  such  decree  was  not  ren- 
dered unmarketable  by  the  fact  that  other  children  were  born  to  the 
daughter  after  the  decree.  They  were  virtually  represented  in  the  suit  by 
their  mother.  Gray  v.  Smith,  76  Fed.  525.  Whether,  in  a  certain  case,  two 
charities,  to  each  of  which  testator  devised  a  share  of  his  estate,  were  one 
and  the  same  corporation,  so  that  one  of  them  was  properly  not  made  a  party 
defendant  to  a  proceeding  for  the  sale  of  the  property  devised:  Sisters  of 
Mercy  v.  Benzinger.  95  Md.  (584,  53  Atl.  548.  The  fact  that  an  assignee  for 
the  benefit  of  creditors  of  properly  which  had  been  previously  mortgaged  was 
not  made  a  party  to  a  suit  to  foreclose  the  mortgage,  was  held,  after  the  lapse 
of  more  than  twenty-five  years,  no  objection  to  the  title  under  Laws  of  New 
York,  1875,  providing  that  deeds  for  the  benefit  of  creditors  shall  be  deemed 
discharged  after  twenty-five  years  from  their  date.  Kip  v.  Hirsh,  103  N.  Y. 
565,  0  N.  E.  Rep.  317.  Failure  to  make  an  incumbrancer  a  party  to  a  suit 
to  foreclose  a  prior  incumbrance,  though  error,  does  not  render  the  title  of 
the  purchaser  at  the  foreclosure  sale  unmarketable,  since  the  purchaser  ac- 
quire* by  subrogation  all  the  rights  of  the  prior  incumbrancer.  De  Saussure 
v.  Bollman,  7  Rich.  (N.  S.)  (8.  C.)  329. 

"Day  v.  KingHland,  57  N.  J.  Kq.  134,  41  Atl.  Rep.  90. 

"Wolverton  v.  Stevennon,  52  La.  Ann.  1147,  27  So.  Rep.  874. 


OF    DOUBTFUL    TITLES. 

formalities  provided  for  in  the  instruments  under  which  they 
act.  If  there  should  be  any  serious  doubt  as  to  the  validity  of  the 
sale  for  any  cause,  such  as  want  of  due  advertisement  of  the  sale, 
misconduct  of  the  trustee,  collusion  between  the  purchaser  and 
the  mortgagee  or  trustee,  gross  inadequacy  of  the  price,  and  the 
like,  and  the  rights  of  the  parties  affected  by  the  sale  have  not 
become  barred  by  the  lapse  of  time,  title  dependent  upon  such 
sale  will  be  deemed  unmarketable,  and  not  such  as  a  purchaser 
may  be  required  to  take.15 

§  300.  Defective  conveyances  and  acknowledgments.  Imper- 
fect registration.  A  vast  number  of  objections  to  title  are  founded 
upon  errors  or  irregularities  in  the  drafting,  acknowledgment,  and 
registration  of  deeds  under  which  title  is  claimed.  These,  of 
course,  may  be  absolutely  fatal  to  the  title,  or,  at  least,  render  it 
doubtful;  but  many  of  them  are  merely  captious  or  frivolous, 
being  ferreted  out  by  counsel  to  aid  the  purchaser  in  his  escape 
from  a  losing  bargain.  They  are  principally  questions  of  law 
suggested  by  clerical  mistakes  and  inadvertent  omissions  on  the 
part  of  those  concerned  in  the  execution  and  authentication  of 
conveyances,  such,  for  example,  as  the  sufficiency  of  an  informal 
and  irregular  certificate  of  acknowledgment;  or  the  sufficiency  of 
a  deed  in  which  the  spelling  of  the  name  of  the  grantor  in  the 
body  of  the  deed,  differs  from  his  signature  to  the  deed.  Of 
course,  however,  graver  questions  frequently  arise;  e.  g.,  whether 
the  language  employed  by  the  grantor  in  the  granting  clause,  is 
sufficient  to  create  a  certain  interest,  and  the  like.  In  either  case, 
if  the  question  admit  of  a  reasonable  doubt,  the  title  depending 
thereon  will  not  be  forced  upon  the  purchaser.  The  want  of 
regular  registration  of  deeds  under  which  the  vendor  deduces 

15  Martin  v.  Hamlin,  176  Mass.  180,  57  K  E.  Rep.  381.  In  Crutchfield  v. 
Hewett,  2  App.  D.  C.  373,  such  a  sale  was  set  aside  by  the  lower  court  after 
seventeen  years'  delay,  for  want  of  due  advertisement  and  for  other  irregulari- 
ties. The  decree  was  reversed  on  the  ground  that  the  complainants  had  slept 
too  long  upon  their  rights.  Failure  of  the  abstract  to  show  that  the  mortgage 
contained  a  power  of  sale,  was  not  cured  by  a  recital  of  such  power  in  the 
sheriff's  deed.  Bradway  v.  Miller,  200  iMich.  648,  167  N.  W.  15.  Want  of 
due  notice  of  foreclosure  made  the  title  unmarketable.  Foster  &  Co.  v. 
Sayles,  213  Mass.  319,  100  N.  E.  644. 

105 


834  MARKETABLE    TITLE    TO    REAL    ESTATE. 

title,  there  being  no  other  proof  of  execution,  is  an  insuperable 
objection  to  specific  performance  by  the  purchaser.18 

MHyne  v.  Campbell,  6  T.  B.  Mon.  (Ky.)  286.  George  v.  Conhaim,  38  Minn. 
338,  37  X.  \V.  Rep.  391.  The  mere  non-record  of  a  deed  executed  by  a  referee 
in  foreclosure  proceedings  does  not  render  doubtful  a  title  held  thereunder, 
the  court  having  confirmed  the  sale  and  directed  the  deed  to  be  made.  Calder 
v.  Jenkins,  16  X.  Y.  Supp.  797. 

ERRORS  AND  IRREGULARITIES  IN  THE  DRAFTING,  EXECUTION'  AND  ACKNOWLEDG- 
MENT OK  INSTRUMENTS  —  Titles  held  not  marketable.  Whether  a  certain  con- 
veyance had  been  executed  as  an  escrow  or  not:  Sloper  v.  Fish,  2  Yes.  &.  Bea. 
145.  Whether  by  a  conveyance  of  lot  "fifteen  "  in  a  certain  block,  lot  fifteen 
in  a  subdivision  of  original  lot  fifteen  was  intended:  Parker  v.  Porter,  11  111. 
App.  602.  Where  the  description  of  the  property  in  the  deed  to  the  vendor 
varied  materially  from  that  in  a  prior  deed  in  the  chain  of  title:  Fitxpatriek 
v.  Sweeny,  56  Hun  (N.  Y.),  159,  121  N.  Y.  707.  WThere  there  is  a  mistake 
in  the  description  of  the  premises  in  a  deed  under  which  the  vendor  holds: 
Smith  v.  Turner,  50  Ind.  367;  Heller  v.  Cohen,  154  N.  Y.  299,  48  N.  E.  527; 
such,  for  example,  as  the  insertion  of  the  word  "  east "  instead  of  "  west " 
in  the  description  of  the  premises.  Brown  v.  Reichling,  86  Kan.  640,  121 
Pac.  1127.  Where  a  tract  of  land  was  originally  surveyed  in  a  block  with 
other  lands,  and  from  fixed  monuments  and  other  circumstances,  it  appears 
probable  that  there  was  a  serious  interference  'between  the  various  tracts: 
Holt's  Appeal,  98  Pa.  St.  258.  Whether  a  certificate  of  acknowledgment  which 
failed  to  state  that  the  grantors  were  known  to  the  certifying  oflicer  to  be 
such,  etc.,  was  sufficient:  Fryer  v.  Rockefeller,  63  N.  Y.  268;  Paolillo  v. 
Feber,  67  N.  Y.  Supp.  638,  56  App.  Div.  241 ;  Freedman  v.  Oppenheim,  81 
N.  Y.  Supp.  110,  80  App.  Div.  4S7.  Where  certificate  of  acknowledgment 
failed  to  show  that  the  certifying  officer  was  personally  acquainted  with  the 
grantor:  .Mull in-,  v.  Aiken,  2  Heisk.  (Tenn.)  535.  Where  the  certificate  of 
the  clerk  of  court  failed  to  state  that  he  was  acquainted  with  the  officer's 
handwriting  and  believed  his  signature  genuine:  Freedman  v.  Oppenheim, 
81  N.  Y.  Supp.  110,  80  App.  Div.  487.  Where  the  wife's  acknowledgment  of 
a  deed  under  which  the  vendor  claimed,  was  wanting:  MeCann  v.  Edwards, 
6  B.  Mon.  (Ky.)  208.  Where  the  certificate  did  not  show  prior  examination 
of  the  wife:  Hepburn  v.  Auld,  5  Cranch  (U.  8.),  267,  275.  Whether  parol 
evidence  of  the  certifying  officer  could  be  received  to  show  that  the  wife's 
acknowledgment  was  duly  taken:  Tomlin  v.  .MoChord,  5  J.  J.  Marsh.  (Ky. ) 
13f>.  Whether  a  certain  informal  certificate  of  acknowledgment  of  a  deed  by 
a  married  woman  sufficiently  showed  that  the  grantor  was  known  to  the 
certifying  officer,  that  the  deed  had  been  explained  to  the  grantor,  that  she 
had  been  privily  examined  apart  from  her  husband,  and  that  she  had  declared 
that  -In-  had  willingly  signed,  sealed  and  delivered  the  same:  Black  v.  Aman. 
0  Mac-key  (D.  <  .  .  131.  A  title  dependent  on  an  acknowledgment  of  a  married 
woman,  taken  before  a  party  to  (he  deed  acknowledged,  is  not  marketable. 
Withers  v.  Kaird,  7  Watts  (Pa.),  227,  32  Am.  Dec.  754.  And  a  title  derived 
through  :i  conveyance  defectively  acknowledged  by  a  married  woman,  is  un- 


OF   DOUBTFUL   TITLES.  835 

The  general  rule  is  that  in  so  far  as  the  title  depends  upon  the 

marketable.  Beardslee  v.  Underbill,  37  N.  J.  L.  309.  Where  a  deed  was  re- 
corded upon  a  certificate  of  acknowledgment  before  a  commissioner  of  deeds 
for  the  State  of  New  York,  and  was  not  accompanied  by  a  certificate  from  the 
Secretary  of  State  of  the  State  of  New  York,  showing  authority  on  the  part 
of  said  commissioner,  and  there  was  no  extraneous  evidence  to  show  that  the 
deed  had  been  in  fact  acknowledged  by  the  grantor,  a  title  thence  derived  was 
held  unmarketable.  Williamson  v.  Banning,  86  Hun  (N.  Y.),  203  (S3  N.  Y. 
Supp.).  In  Irving  v.  Campbell,  121  N.  Y.  353,  24  N.  E.  Rep.  821,  8  L.  R.  A. 
620,  the  fact  that  a  certificate  of  acknowledgment  of  a  conveyance  did  not 
state  the  place  of  residence  of  the  subscribing  witness,  was  held  to  render  the 
title  unmarketable,  though  it  appeared  that  the  person  and  place  of  residence 
of  such  witness  was  well  known.  A  title  founded  upon  a  decree  against 
husband  and  wife  to  enforce  specific  performance  of  a  contract  by  the  hus- 
band to  sell  the  wife's  lands,  is  unmarketable,  where  it  appears  that  there 
are  no  equities  binding  the  wife  in  a  suit,  or  that  she  had  not  released  her 
rights  in  the  manner  provided  by  law.  Hays  v.  Tribble,  3  T.  B.  Mon.  (Ky.) 
106.  Where  an  abstract  of  title  showed  record  title  in  "  H.  P.  Hepburn  "  and 
no  title  out  of  him,  but  title  out  of  "  H.  P.  Hopkins,"  and  the  vendor  claimed 
that  the  deed  from  Hopkins  was  in  fact  from  Hepburn,  but  refused  to  submit 
his  proofs  for  examination  of  the  purchaser,  it  was  held  that  the  latter  might 
reject  the  title  and  recover  his  deposit,  though  the  vendor  might  be  able  to 
show  that  the  title  was  good.  Benson  v.  Shotwell,  87  Cal.  49,  25  Pac.  Rep. 
249.  So,  also,  where  the  record  title  was  in  "  K.  F.  Redmond  "  and  the  next 
conveyance  was  from  "  K.  F.  Redman,"  it  was  held  that  the  two  names  were 
not  idem  sonans,  and  that  the  title  was  unmarketable,  and  that  the  defect 
was  not  cured  by  a  second  deed  from  K.  F.  Redman  to  the  plaintiff's  vendor, 
reciting  that  he  was  the  same  person  as  "  K.  F.  Redmond "  in  the  first- 
mentioned  deed.  Peckham  v.  Stewart,  97  Cal.  147,  81  Pac.  Rep.  928.  So, 
also,  where  a  conveyance  was  by  error  made  to  "  James  M."  instead  of 
"  Joseph  M.,"  though  the  error  was  afterwards  recited  in  a  suit  in  which  the 
premises  were  partitioned  between  the  heirs  of  Joseph  M.  and  one  who  had 
been  his  co-tenant,  such  recital  and  finding  not  being  conclusive  upon  any 
one  who  should  claim  as  "  James  M."  Mead  v.  Altgeld,  136  111.  298,  26  N.  E. 
Rep.  388.  Whether  a  deed  had  been  executed  in  the  proper  manner  by  an 
attorney  in  fact.  Kohlrep  v.  Ramm,  79  N.  J.  Eq.  386,  81  Atl.  1103.  Failure 
of  trustee's  deed  to  show  a  substantial  consideration  therefor.  Slade  v.  Crum, 
(Tex.  Civ.  App.)  193  S.  W.  723.  Whether  the  date  of  an  unrecorded  deed 
determined  its  priority  over  a  judgment.  Tausk  v.  Siry,  180  N.  Y.  Supp. 
439,  110  Misc.  Rep.  514.  Whether  an  unrecorded  deed  had  been  delivered. 
Johnston  v.  Garvey,  124  N.  Y.  Supp.  278,  139  App.  Div.  659.  Failure  of  the 
certificate  to  state  that  grantor  was  known  to  the  certifying  officer.  Moran 
v.  Stader,  103  N.  Y.  Supp.  175.  Whether  "Gerhard  F.  Terschuren,  grantee 
in  the  chain  of  title,  was  the  same  person  as  "  George  F.  Terschuren."  Wal- 
ters v.  Mitchell,  6  Cal.  App.  410,  92  Pac.  315.  Where  the  recorder  struck  out 
"  Robbins "  and  inserted  "  Robben "  as  grantee  in  a  deed  made  38  years 
before.  Robben  v.  Benson,  (Cal.  App.)  173  Pac.  766,  but  see  S.  C.  185  Pac. 


836  MARKETABLE    TITLE    TO    REAL    ESTATE. 

execution,  attestation,  acknowledgment,  and  effect  of  conveyances, 

200.  Whether  a  conveyance  by  "  Noah  C.  Am«den  "  was  to  be  treated  as  a 
conveyance  by  "Noah  C.  Anderson."  Geithman  v.  Eichhler,  265  111.  579, 
107  N.  E.  180.  Describing  the  land  as  being  in  a  township  other  than  that 
in  which  it  lies.  Bradway  v.  Miller,  200  Mich.  648,  167  N.  W.  15.  Describ- 
ing the  property  as  appearing  on  the  "  Whitman  "  instead  of  the  "  Pittman  " 
plat.  Boylan  v.  Wilson  (Ala.)  70  So.  364. 

Titles  held  marketable.  Whether  a  conveyance  under  which  the  vendor 
claimed  was  a  sealed  instrument:  Todd  v.  Union  Dime  Sav.  Bank,  118 
N.  Y.  337,  23  N.  E.  Rep.  299,  reversing  20  Abb.  N.  C.  270,  and  44  Hun 
(N.  Y.),  623.  Whether  the  husband  must  join  in  a  conveyance  by  an  execu- 
trix: Tyree  v.  Williams,  3  Bibb  (Ky.),  366;  6  Am.  Dec.  663.  Whether 
"  Electa  Wilder,"  under  whom  the  vendor  claimed,  was  one  and  the  same 
person  with  "  Electa  Wilds,"  in  whom  appeared  the  record  title  up  to  the 
time  of  the  conveyance  by  "  Electa  Wilder  ":  Hellreigel  v.  Manning,  97  N.  Y. 
66;  Lynch  v.  Rogers,  134  N.  Y.  Supp.  1071,  150  App.  Div.  311.  Whether 
signing  a  deed  by  a  wrong  name  invalidates  it,  when  the  true  name  is  recited 
in  the  body  of  the  deed,  and  the  grantor  also  acknowledges  the  deed  by  his 
true  name:  Middleton  v.  Findla,  25  Cal.  76.  Whether  "  southeasterly"  could 
be  read  "  southwesterly "  where  the  deed  showed  that  southwesterly  was 
intended.  Brookman  v.  Kurzman,  94  N.  Y.  272;  Karsel  v.  Cooper,  149  N.  Y. 
Supp.  977;  Barsky  v.  Poeey,  (Del.  Ch.)  9S  All.  298;  Clark  v.  Hutzler,  9« 
Va,  73,  30  S.  E.  Rep.  469;  Maryland  Const.  Co.  v.  Kuper,  90  Md.  529,  45 
Atl.  197.  A  misdescription  of  the  boundary  lines  of  the  premises  does  not 
make  the  title  doubtful,  if  the  land  may  be  clearly  identified  from  the  monu- 
ments and  objects  mentioned  in  the  deed.  Galvin  v.  Collins,  128  'Mass.  525. 
See,  also,  Meyer  v.  Boyd,  51  Hun  (N.  Y.),  291,  295,  4  N.  Y.  Supp.  328. 
Where  a  deed  under  which  the  vendor  claims  describes  the  land  as  being  on 
the  south  side  of  a  river,  but  refers  to  a  patent  which  places  it  on  the  west 
side,  and  the  identity  of  the  land  appears,  the  misdescription  does  not  render 
the  title  unmarketable.  Newsom  v.  Davis,  20  Tex.  419.  In  the  deed  of  a 
married  man,  his  name  alone  appeared  as  grantor,  but  the  wife's  name  was 
included  in  the  tcstimonium  clause,  and  she  signed  and  acknowledged  the 
deed.  Held,  that  the  omission  of  the  wife's  name  in  the  body  of  the  deed 
did  not  render  the  title  unmarketable.  Atkinson  v.  Taylor,  34  Mo.  App.  442. 
The  validity  of  a  recorded  deed  ia  not  affected  by  the  failure  of  the  notary 
to  recognize  his  official  seal  in  the  tcstimonium  clause  of  his  certificate  of 
acknowledgment.  MiU-hener  v.  Holmes,  (Mo.)  22  S.  W.  Rep.  1070.  Whether 
a  certificate  of  acknowledgment  before  a  mayor  of  a  town,  without  a  seal 
or  other  evidence  of  authority,  is  sufficient,  forty  years'  possession  having 
been  had  thereunder:  Brown  v.  Witter,  10  Ohio,  143.  Whether  an  acknowl- 
edgment by  a  married  woman  before  a  different  officer  and  at  a  different 
time  from  her  husband  was  valid,  under  a  statute  which  merely  required 
that,  "in  addition"  to  the  husband's  acknowledgment,  the  wife  should 
declare,  etc.:  Ludlow  v.  O'Neil,  29  Ohio  St.  182.  Whether  the  language. 
"  Personally  came  A.  B.,  the  executor  of  the  annexed  deed,  and  acknowledged 
It,"  wa»  equivalent  to  "acknowledged  the  execution  of  the  annexed  deed:" 


OF    DOUBTFUL    TITLES.  837 

as  they  appear  upon  the  record,  they  must  be  free  from  reasonable 

Davar  v.  Caldwell,  27  Ind.  478.  A  purchaser  cannot  reject  the  title  on  the 
ground  that  the  probate  of  a  deed  under  which  the  vendor  claims  does  not 
contain  the  official  title  of  the  person  taking  the  proof,  when  it  can  be  shown 
that  he  was  an  officer  authorized  to  take  such  proof  at  the  time.  Bronk  v. 
McMahon,  37  S.  Car.  309.  The  fact  that  the  clerk  made  a  short  memoran- 
dum of  an  acknowledgment  by  a  married  woman,  and  afterwards  wrote  out 
the  certificate  in  full  and  recorded  it,  the  death  of  the  married  woman  hav- 
ing supervened,  does  not  affect  a  title  derived  under  such  certificate.  Frewitt 
v.  Graves,  5  J.  J.  Marsh.  (Ky.)  114.  Whether  a  certain  deed  of  an  executor 
sufficiently  showed  authority  on  his  part  to  convey,  there  being  no  recital 
of  a  power  to  convey  therein:  Doody  v.  Hollwedel,  48  N.  Y.  Supp.  93,  22 
App.  Div.  456.  Whether  a  certain  deed  executed  by  the  owner  of  a  lot 
divided  by  a  public  highway  operated  to  convey  the  grantor's  interest  in 
one  of  the  parts  to  the  center  of  the  highway,  without  words  to  that  effect: 
Pell  v.  Pell,  73  N.  Y.  Supp.  81,  65  App.  Div.  388  (aff'd).  In  Garden  City 
Land  Co.  v.  Miller,  157  111.  225,  41  N.  E.  Rep.  753,  it  was  held  that  the 
failure  of  a  deed  in  the  vendor's  chain  of  title  to  mention  a  meridian,  or  the 
county  or  State  in  which  the  land  conveyed  was  situated,  did  not  render 
the  title  unmarketable,  there  being  evidence  to  show  beyond  dispute  what 
land  was  intended  to  be  conveyed.  Where  a  decree  of  court  required  the 
vendor  to  execute  a  deed  to  the  purchaser,  which  was  done,  and  the  deed  was 
delivered  to  the  court  to  be  disposed  of  by  its  future  order,  the  fact  that 
the  grantor  died  before  the  delivery  of  the  deed  to  the  grantee  did  not 
affect  the  validity  of  the  deed,  nor  justify  the  purchaser  in  refusing  to 
accept  it.  Faile  v.  Crawford,  54  N".  Y.  Supp.  264,  34  App.  Div.  278.  The 
vendor  was  permitted  to  show  that  O.  L.  Hildebrandt,  named  as  a  grantor 
in  the  abstract  of  title,  was  the  same  person  as  Levi  Hildebrandt,  previously 
named  in  the  abstract  as  a  grantee.  Hollifield  v.  Landrum,  (Tex.  Civ.  App.) 
71  S.  W.  979.  See,  also,  Woodward  v.  McCollum,  16  N.  D.  42,  111  N.  W. 
623.  Whether  "  B.  W.  Rdbbins  "  grantee  in  the  chain  of  title,  was  same  per- 
son as  B.  W.  Robben.  Evidence  to  show  that  no  person  of  the  name  of  B.  W. 
Bobbins  had  ever  claimed  the  land,  held  admissible.  Robben  v.  Benson, 
(Cal.  App.)  185  Pac.  200.  The  purchaser's  objection  "Hannah"  in  the  chain 
of  title  is  spelled  with  one  "  n  "  in  the  deed  to  her,  and  with  two  in  the  deed 
from  her,  is  frivolous.  Kane  v.  Borthwick,  50  Wash.  8,  96  Pac.  516,  L.  R.  A. 
18  (N.  S.)  486.  Whether  affidavits  were  admissible  to  show  that  "  Felkel  " 
was  intended  by  "  Falker "  in  the  chain  of  title.  Atteberry  v.  Blair,  244 
111.  363,  91  N.  E.  475,  135  Am.  St.  Rep.  342.  Whether  "Jennie  L.  Shafer," 
in  a  transfer  of  title  to,  was  the  same  person  as  "  Jennie  Shafer "  is  a 
transfer  of  title  from,  a  party  in  the  chain  of  title.  Cummings  v.  Dolan,  52 
Wash.  496,  100  Pac.  989,  132  Am.  St.  Rep.  989.  Whether  "  Schultz,"  in  a 
certificate  of  acknowledgment,  could  be  read  "Schutz."  Vett  v.  Schwob,  111 
N.  Y.  Supp.  286,  127  App.  Div.  171.  Error  of  the  certifying  officer  in  spell- 
ing the  name  of  the  party  is  cured  by  his  statement  in  the  certificate  that 
the  party  is  known  to  him  to  be  the  one  who  executed  the  deed.  Vett  v. 
Schwob,  111  N".  Y.  Supp.  286,  127  App.  Div.  171.  Whether  affidavits  more 
than  50  years  old,  accompanying  vendor's  title  papers  were  admissible  to 


838  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

doubt  upon  their  faces,  and  must  have  been  properly  and  legally 
recorded,  or  be  such  as  are  legally  entitled  to  be  recorded.17 

It  sometimes  happens  that  the  date  of  a  deed  in  the  vendor's 
chain  of  title  is  subsequent  to  the  date  of  the  acknowledgment  of 
the  deed.  Such  a  discrepancy  will  not  of  itself  justify  the  pur- 
chaser hi  refusing  to  take  a  conveyance  of  the  premises  on  the 
ground  that  the  title  is  not  clear.  The  certificate  of  acknowledg- 
ment is  presumed  to  be  correct,  and  wiU  not  be  controlled  by  the 
date  inserted  in  the  deed.  Even  if  the  date  of  the  deed  were  inserted 
subsequently  the  discrepancy  would  be  immaterial,  because  the 
real  date  of  a  deed  is  the  time  of  its  delivery,  which  may  be  sub- 
sequent to  the  acknowledgment,  and  even  after  registration.18 

show  correction  of  spoiling  of  name  of  grantee  in  chain  of  title.  Coleman  v. 
Bruch,  117  X.  Y.  Supp.  582,  132  App.  Div.  716.  Whether  error  in  descrip- 
tion of  land  was  cured  hy  reference  in  one  deed  to  another  for  further  de- 
scription. Nelson  v.  Butler,  (Tex.  Civ.  App.)  190  S.  W.  811.  Where  the 
point  of  beginning  was  described  as  being  at  the  intersection  of  the  northerly, 
instead  of  the  southerly  side  of  the  street.  Dougherty  v.  Carberry,  7  Pen. 
(Del.)  56,  75  All.  780.  Whether  a  description  giving  three  sides  of  a  rect- 
angular piece  of  land,  but  omitting  the  closing  call,  was  sufficient.  Barnum 
v.  Lock  hart,  75  Oreg.  528,  146  Pac.  975.  Omission  of  the  name  of  the  grantee 
in  a  deed  was  cured  by  a  purchase-money  mortgage  executed  by  such  grantee 
and  recorded  at  the  same  time  with  the  deed.  Heiberger  v.  Karfiol,  202 
X.  Y.  419,  95  X.  E.  755.  Failure  of  the  abstract  to  show  that  grantor's  wife 
joined  in  the  deed  with  him,  no  valid  objection  where  there  was  nothing  to 
show  that  grantor  had  a  wife  when  the  deed  was  executed.  Russell  v.  Wales, 
104  N.  Y.  Supp.  143,  119  App.  Div.  536.  The  title  of  a  deceased  vendor  was 
not  unmarketable  from  the  fact  that  he  held  under  a  deed  to  himself  "  and  his 
wife,"  not  naming  her  —  she  tendering  a  deed  as  executrix  and  also  in  her 
own  right.  McArthur  v.  Weaver,  113  X.  Y.  Supp.  1095,  120  App.  Div.  743. 

"  Harrass  v.  Kdwards,  94  Wis.  459,  69  X.  W.  Rep.  69. 

"Dresel  v.  Jordan,  104  Mans.  407. 

REGISTRATION  OF  DEEDS,  ETC. —  Titles  held  doubtful.  Whether  an  attach- 
ment levied  upon  land  took  priority  over  nn  unrecorded  conveyance  of  the 
land:  Mull  ins  v.  Aiken,  2  Heisk.  (Tenn.)  535.  Want  of  regular  registration 
of  deeds  by  which  the  vendor  deduce*  title,  there  being  no  other  proof  of 
their  existence,  is  a  fatal  objection  to  the  title.  Bartlett  v.  Blanton,  4  J.  J. 
M.ir-h.  (Ky. )  427.  Where  the  law  requires  a  will  of  lands,  admitted  to 
probate  without  the  State,  to  be  recorded  within  the  State,  the  title  will 
not  be  perfwted  and  marketable  until  such  record  in  made.  Wilson  v. 
Tappan,  tt  Ohio,  172.  A  purchaser  will  not  be  compelled  to  take  a  title  under 
a  deed  which  in  not  recorded  nor  shown  to  have  been  executed  a*  the  law 
require*.  Hyne  v.  Campbell,  6  T.  B.  Mon.  (Ky.)  286.  Uarraas  v.  Edwards, 
94  Wis.  459,  69  X.  W.  Rep.  09.  Nor  where  the  question  is  whether  a  recorded 


OF   DOUBTFUL   TITLES.  839 

§  301.  Construction  of  deeds,  wills,  etc.  Perhaps  the  most 
difficult  questions  on  which  title  to  real  estate  depends,  as  between 
vendor  and  purchaser,  are  those  which  involve  the  true  construc- 
tion of  some  instrument,  such  as  a  deed  or  will,  which  forms  a 
part  of  the  vendor's  muniments  of  title.  In  the  law  of  contingent 
remainders,  executory  devises,  restraints  upon  alienation,  the  crea- 
tion of  perpetuities,  and  the  like,  there  are  many  niceties  and 
su'btleties,  concerning  which,  as  related  to  the  peculiar  circum- 
stances of  each  case,  the  most  learned  in  the  law  may  well  doubt. 
So,  too,  the  true  intent  of  a  testator,  whose  will  has  been  inarti- 
ficially  and  unskillfully  drawn,  is  often  a  question  upon  which 
different  judges  may  entertain  different  opinions.19  And  often- 
times, with  the  aid  of  parol  evidence  to  explain  ambiguities  in  a 

deed  had  been  in  fact  delivered.  Johnston  v.  Garvey,  124  N.  Y.  Supp.  278, 
130  App.  Div.  659. 

Titles  held  marketable.  Whether  an  assignment  of  a  mortgage  was  neces- 
sary to  be  recorded:  Fryer  v.  Rockefeller,  63  N.  Y.  268.  Whether  a  certain 
conveyance  recorded  in  the  county  clerk's  office  of  New  York  county,  but  not 
recorded  in  the  office  of  the  register  of  deeds,  was  notice  to  a  subsequent 
purchaser:  Wagner  v.  Hodge,  34  Hun  (N.  Y.),  524.  The  fact  that  a  deed 
under  which  the  vendor  claims  is  unregistered  does  not  make  the  title  doiibt- 
ful  when  the  grantor  in  such  deed  is  dead,  without  creditors,  .and  no  subse- 
quent sale  is  shown,  and  the  grantee  is  in  possession.  Cotton  v.  Ward, 
3  T.  B.  Mon.  (Ky.)  304.  The  omission  of  a  county  clerk's  certificate  to 
state  the  name  and1  official  character  of  the  officer  taking  the  acknowledg- 
ment, may  be  supplied  from  the  certificate  of  acknowledgment.  And  the 
absence  of  a  date  to  such  certificate  is  immaterial  where  not  required  by 
statute.  So,  also,  the  want  of  a  seal  to  a  county  clerk's  certificate  of  the 
official  character  of  the  certifying  officer.  Thorn  v.  Mayer,  33  N.  Y.  Supp. 
664.  The  failure  of  a  recorder  of  deeds  to  note  the  time  when  a  deed  was 
recorded  will  not  affect  the  title,  where  the  rights  of  no  third  person  are 
concerned.  Thorn  v.  Mayer,  33  N.  Y.  Supp.  664.  The  fact  that  a  court 
commissioner's  deed  in  the  chain  of  title  had  been  lost  or  mislaid,  was  no 
objection  to  the  title  —  the  commissioner  standing  ready  to  execute  another 
deed.  Sutton  v.  Davis,  143  N.  C.  474,  55  S.  E.  844.  It  is  no  objection  to  a 
title  under  a  patent  that  the  patent  had  not  been  recorded  in  the  county 
where  the  land  lies.  Doppelt  v.  Geliebter,  173  111.  App.  634.  The  fact  that 
a  deed  in  the  vendor's  chain  of  title  was  not  attested  in  such  manner  as 
to  entitle  it  to  record,  did  not  justify  the  purchaser  in  rejecting  the  title, 
in  the  absence  of  anything  to  show  that  the  title  had  been  prejudiced  by  the 
registration  of  the  deed  on  an  insufficient  attestation.  'Cowdrey  v.  Greenlee, 
126  Ga.  386,  55  S.  E.  918. 

"Wilson  v.  Vogel,  87  N.  J.  Eq.  584,  101  Atl.  173. 


840  MARKETABLE    TITLE    TO    REAL    ESTATE. 

will,  it  is  impossible  to  determine,  beyond  a  reasonable  doubt,  to 
what  persons  or  things  the  testator  refers.10 

*•  CONSTRUCTION  OF  INSTRUMENTS  —  Titles  held  doubtful.  Whether  in  a 
certain  case  there  was  an  unlawful  suspension  of  the  power  of  alienation: 
Beams  v.  Mela,  10  X.  Y.  Supp.  429,  58  Hun  (N.  Y.),  588.  Whether  in  a 
certain  case  the  purchaser  was  required  to  see  to  the  application  of  the 
purchase  money:  Garnett  v.  Macon,  6  Call  (Va,),  308.  St.  Mary's  Church 
v.  Stockton,  8  X.  J.  Eq.  520.  Whether  a  certain  devise  was  governed  by  the 
rule  in  Shelley's  case:  Doebler's  Appeal,  14  P.  F.  Smith  (Pa.),  9.  Mon- 
aghan  v.  Small,  0  Rich  (X.  S.)  (S.  C.)  177.  Whether  a  certain  deed  abso- 
lute in  form  was  in  fact  a  mortgage:  Cunningham  v.  Sharp,  11  Humph. 
(Tenn.)  116.  Whether  the  designation  of  certain  premises  on  a  map  of 
lots  as  a  "  wharf,"  and  certain  acts  in  connection  therewith,  amounted  to  a 
dedication  of  such  premises  to  the  uses  of  the  prospective  buyers  of  adjoin- 
ing lots:  Hymers  v.  Branch,  6  Mo.  App.  511.  Whether  certain  language 
in  a  deed  was  sufficient  to  show  that  the  grantor  intended  thereby  to  convey 
his  interest  in  a  highway  subject  to  the  public  me:  Lee  v.  Lee,  27  Hun 
(N.  Y.),  1.  See,  also,  Mott  v.  Mott,  68  N.  Y.  246;  In  re  Ladue,  54  N.  Y. 
Super.  Ct.  528.  Whether  a  quit  claim  or  release  by  a  married  woman  to  a 
stranger  will  operate  to  divest  her  inchoate  right  of  dower:  Merchants' 
Bank  v.  Thomson,  55  N.  Y.  7.  Whether  an  inchoate  right  of  dower  is  merged 
in  a  conveyance  by  the  husband  to  the  wife:  People  v.  Life  Ins.  Co.,  66  How. 
Pr.  (X.  Y. )  115.  Whether  a  husband  took  a  life  estate  or  a  fee  under  his 
wife's  will:  Butts  v.  Andrews,  136  Mass.  221.  Whether  a  limitation  over 
after  the  determination  of  a  life  estate  was,  in  a  certain  case,  void  for 
remoteness:  Lowry  v.  Muldrow,  8  Rich.  Eq.  (S.  C.)  241.  Whether  a  cor- 
poration under  a  conveyance  to  its  president,  "  his  successors  and  assigns," 
but  without  words  of  inheritance,  took  an  estate  in  fee:  Cornell  v.  Andrews, 
37  X.  J.  Kq.  7.  Whether  a  devisee  took  the  estate  with  absolute  power  of 
alienation:  Cunningham  v.  Blake,  121  Mass.  333;  Starnes  v.  Allison,  2 
Head  (Tenn.),  221.  Whether  certain  language  in  a  will  created  an  abso- 
lute or  a  conditional  fee:  Goerlitz  v.  Malawista,  56  Hun  (N".  Y.),  120; 
8  X.  V*.  Supp.  832.  Certain  doubts  arising  upon  the  true  construction  of  a 
wilt  held  sufficient  to  make  the  title  doubtful:  Sims  v.  McKlroy,  39  N.  Y. 
St.  Rep.  324,  14  X.  Y.  Supp.  241.  Whether  a  certain  assignment  of  a  mort- 
gage to  the  mortgagor  as  "trustee"  amounted  to  an  absolute  release  of  the 
mortgage:  Sturtcvant  v.  Jaques,  14  Allen  (Mass.),  523.  Whether  certain 
posthumous  children  of  a  testator  were  entitled  to  take  under  his  will: 
Kilpatrick  v.  Barron,  125  N.  Y.  751,  26  N.  E.  Rep.  925.  Whether  a  certain 
remainder  created  by  will  was  vested  or  contingent:  Xelson  v.  Russell,  61 
Hun  (X.  Y.).  528,  16  X.  Y.  Supp.  395;  Ranhofer  v.  Realty  Co.,  126  N.  Y. 
Supp.  230,  143  App.  Div.  237.  Whether  a  limitation  of  a  fee  upon  a 
fee  by  way  of  executory  devise  was  valid.  The  devise,  was  held  valid,  and 
the  title  of  one  claiming  under  the  first  devise  wan  held  to  he  not  such  as 
a  purchaser  could  lie  compelled  to  take.  Smith  v.  Ki mini  11,  (111.)  38  N".  E. 
Rep.  1029.  Whether  a  certain  trust  authorized  a  sale  of  the  tnnt  subject 


Op    DOUBTFUL    TITLES.  841 

§  302.    Competency  and  authority  of  parties  to  deeds.     The 

competency,  power  or  authority  of  those  who  undertake  to  execute 
conveyances  of  lands,  constitutes  a  most  fruitful  source  of  objec- 
tions to  title.  The  question  -may  be  one  of  fact,  as  whether  the 
grantor  was  a  minor,  a  lunatic  or  a  married  woman,  or  it  may  be 
a  question  of  law,  as  whether  the  courts  of  one  State  have  power 
and  authority  to  appoint  a  commissioner  to  sell  and  convey  lands 
in  a  sister  State,  or  whether  one  conveying  in  pursuance  of  a 
power  has  exceeded  his  authority.  A  title  dependent  upon  a  con- 
veyance executed  by  one  admitted  to  be  an  infant  or  a  person  non 
compos  mentis  is  absolutely  bad,  for  such  a  deed  is  void.  But  if 
the  fact  of  infancy  or  the  want  of  contractual  capacity  'be  in  dis- 
pute, and  there  be  a  reasonable  doubt  as  to  the  existence  of  either, 
then  the  title  is  technically  doubtful  or  unmarketable,  and  the 
purchaser  will  not  be  required  to  complete  the  contract.  In  a 
case  in  Kentucky,  the  court  held  that  a  title  should  not  be  declared 
doubtful  because  of  the  alleged  insanity  of  a  remote  grantor,  if 
the  fact  of  insanity  was  left  in  doubt  at  the  final  hearing,  nor, 
if  insanity  be  fully  established,  unless  it  appear  that  the  deed  of 
such  grantor  had  been  in  fact  set  aside,  or  probably  would  be  in 

after  the  beneficiaries  reached  the  age  of  twenty-one:  Paget  v.  Melchoir,  58 
N".  Y.  Supp.  913,  42  App.  Div.  76.  Whether,  upon  a  true  construction  of  the 
testator's  will,  his  executors  were  authorized  to  sell  his  realty  before  his 
son  arrived  at  the  age  of  21:  Clouse's  App.,  192  Pa.  108,  43  Atl.  413. 
Whether  a  devise  to  A.  "  for  his  use,  benefit,  and  behoof,  in  trust  for  his 
children "  vested  an  estate  in  fee  in  A.  on  the  theory  that  the  language 
used  was  insufficient  to  create  a  trust  estate:  Marks  v.  Halligan,  70  N".  Y. 
Supp.  444,  61  App.  Div.  179.  Whether  a  devise  to  testator's  wife  for  life, 
the  property  "  or  what  remains  thereof  "  to  go  to  a  son  in  remainder,  gave 
the  widow  an  absolute  power  to  sell  and  dispose  of  the  property:  Richards 
v.  Knight,  64  N.  J.  Eq.  196,  53  Atl.  452.  Whether,  in  a  case  of  a  limitation 
over  upon  the  death  of  another,  death  in  the  lifetime  of  the  testatrix  was  in- 
tended. Fisher  v.  Eggert,  (N.  J.  Eq.)  64  Atl.  957.  Whether  a  certain  con- 
dition in  a  deed  by  heirs,  requiring  the  payment  of  their  ancestor's  debts, 
was  a  condition  subsequent.  Koch  v.  Streuter,  232  111.  594,  83  N.  E.  1072. 
To  what  period  the  happening  of  a  contingency,  prescribed  in  a  will,  referred. 
Brant  v.  Clifford,  (N.  J.  Eq.)  84  Atl.  206.  Whether,  in  a  devise,  the  words 
"  lawful  heirs  "  were  to  be  construed  the  equivalent  of  "  children."  Harris 
V.  Weed,  89  Conn.  214,  93  Atl.  232.  Whether  a  devise  of  testator's  realty  to 
his  wife  was  affected  by  the  birth  of  a  child  to  him  after  the  execution  of  the 

106 


842  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

proceedings  already  instituted  for  that  purpose.21  It  is  not  easy 
to  reconcile  this  decision  with  the  rule  that  a  purchaser  cannot 
be  compelled  to  take  a  title  which  will  proba'bly  expose  him  to 
litigation.  The  same  observation  will  apply  to  a  decision  that  the 
incapacity  of  a  corporation  to  take  and  hold  real  estate,  does  not 

will.  Moore  v.  Elliott,  76  Wash.  520.  136  Pac.  849.  Whether,  under  the 
true  construction  of  a  will,  a  fee  vested  in  the  children  of  testator  living 
at  the  time  of  his  death.  Williams  v.  Bricker,  83  Kan.  53,  109  Pac.  998. 

Titlfs  held  marketable.  Whether  in  a  certain  case  there  was  an  unlawful 
suspension  of  the  power  of  alienation:  Kelso  v.  Lorillard,  85  N.  Y.  177; 
Rice  v.  Barrett,  102  N.  Y.  161,  6  N.  E.  Rep.  898.  Cushing  v.  Spalding,  164 
Mass.  287,  41  N.  E.  Rep.  297.  Whether  a  conveyance  by  one  of  two  devisees 
in  remainder  to  the  other  with  general  warranty  passed  the  interest  of  the 
grantor  in  remainder  by  estoppel  to  the  other  remainderman:  Vreeland  v. 
Blauvelt,  23  X.  J.  Eq.  483.  Whether  a  certain  limitation  over  upon  the 
death  of  the  first  taker  without  issue  was  void  for  remoteness:  'Miller  v. 
Macomb,  26  Wend.  (N.  Y.)  229.  A  testator  devised  his  estate  to  his  "wife 
for  life,  but  made  no  disposition  of  the  remainder.  Testator  died  without 
children  or  descendants,  and  the  property  having  passed  to  the  wife  as  heir 
at  law,  a  purchaser  from  her  was  compelled  to  take  the  title.  Lemon  v. 
Rogge,  (Miss.)  11  So.  Rep.  470.  Whether  certain  language  in  a  deed  or  will 
created  a  life  estate  or  a  fee  in  the  grantee  or  devisee:  Cassel  v.  Cook, 
8  S.  &  R,  (Pa.)  268,  11  Am.  Dec.  610.  Whether  a  legacy  in  a  certain  case 
was  an  equitable  charge  on  lands  embraced  in  a  residuary  devise  of  the 
estate:  Wilteie  v.  Shaw,  29  Hun  (N.  Y.),  195.  Whether  a  recital  in  a 
conveyance  to  school  trustees  "  for  the  uses  and  purposes  of  the  school  dis- 
trict upon  which  to  erect  a  schoolhouse"  created  a  condition  on  which  the 
property  was  to  be  held:  Board  of  Education  v.  Reilly,  75  N.  Y.  Supp.  876, 
71  App.  Div.  468.  Whether,  in  a  certain  case,  a  trustee  should  have  been 
appointed  to  hold  the  legal  title  of  property  devised  in  trust,  and  make 
conveyances  of  the  same:  Cushing  v.  Spalding,  164  Mass.  287,  41  N.  E.  Rep. 
297.  Whether  a  sale  of  land  charged  with  legacies  operated  to  discharge  the 
legacies:  Waddell  v.  Waddell,  68  8.  C.  335,  47  S.  E.  Rep.  375.  Whether 
a  conveyance  in  pursuance  of  a  power  was  insufficient  in  that  it  did  not  refer 
to  the  power.  Marden  v.  Leimbach,  115  Md.  206,  80  Atl.  958.  Whether  a 
power  to  testator's  wife  to  dispose  of  his  property  as  she  saw  fit,  authorized 
a  sale  of  his  property  by  her.  Welsh  v.  Davis,  125  Md.  37,  93  Atl.  221. 
Whether  certain  words  in  a  will  created  a  power  to  appoint  testator's  lands 
in  fee.  Mabry  v.  Brown,  16?  N.  C.  217,  78  E.  E.  76.  Whether  the  birth  of 
a  child  to  a  devisee  extinguished  a  condition  subsequent  that  the  devisee 
should  have  issue.  Louisville  CJas  Co.  v.  Starin,  170  Ky.  819,  186  S.  W. 
660.  Estates  tail  having  been  converted  into  fees  simple  by  statute,  it  is  no 
objection  to  the  title  that  a  deed,  in  the  chain  if  title,  was  to  the  grantee  "  and 
her  bodily  heirs."  Harrington  v.  Grimes,  163  N.  C.  76,  79  S.  E.  301. 

"Hunt  v.  Weir,  4  Dana  (Ky.),  347. 


OF    DOUBTFUL    TITLES.  843 

affect  the  validity  of  a  title  derived  through  the  corporation,22 
unless  it  was  thereby  intended  to  decide  that  the  State  could  not 

22  Mo.  Valley  Land  Co.  v.  Bushnell,  11  Neb.  192,  8  N".  W.  Rep.  389. 

COMPETENCY,  POWER  OR  AUTHORITY  OF  PARTIES  —  Titles  held  doubtful.  In 
the  following  cases  questions  of  law  or  of  fact  as  to  the  authority  or  com- 
petency of  parties  to  convey  were  held  to  render  the  title  unmarketable: 
Whether  a  conveyance  was  executed  by  a  person  non  compos  mentis:  Freetly 
v.  Barnhart,  51  Pa.  St.  279;  Stobert  v.  Smith,  184  Pa.  St.  34,  38  Atl.  Rep. 
1019;  Brokaw  v.  Duffy,  165  1ST.  Y.  391,  59  N.  E.  Rep.  196.  Whether  a 
power  of  sale  conferred  upon  an  executor  can  be  exercised*  by  his  executor: 
Chambers  v.  Tulane,  9  N.  J.  Eq.  146.  Whether  a  private  act  of  the  legis- 
lature empowering  a  life  tenant  to  sell  the  remainder  and  convey  a  title  in 
fee,  was  binding  upon  the  remainderman:  Bumberger  v.  Clippinger,  5  W.  & 
S.  (Pa.)  311.  Whether  a  personal  representative  had  power  to  assign  a 
bid  made  by  his  intestate  at  a  public  sale:  Palmer  v.  -Morrison,  104  N".  Y. 
132,  10  N.  E.  Rep.  144.  Whether  a  conveyance  of  lands  lying  in  one  juris- 
diction, by  an  officer  acting  under  the  orders  or  decree  of  a  court  of  another 
jurisdiction,  is  valid:  Contee  v.  Lyons,  19  D.  C.  207;  Watts  v.  Waddle, 

1  McLean.  (U.  S.),  200.     See  Corbett  v.  Nutt,  10  Wall.    (U.  S.)    464,  and 
Watkins  v.  Holman,  16  Pet.  (U.  S.)   57.    Whether  a  deed  executed  in  pursu- 
ance of  a  parol  power  of  attorney  was  sufficient  to  pass  title:     Jackson  v. 
Murray,  5  T.  B.  Mon.    (Ky.)    184,,  17  Am.  Dec.  5.3.     Whether  the  deed  of  a 
married  woman  executed  by  power  of  attorney  as  to  which  she  was  privily 
examined,  was  sufficient  to  pass  her  inchoate  right  of  dower:    Lewis  v.  Coxe, 
5  Harr.   (Del.)   401.     Whether  .power  of  sale  to  executors,  extended  to  lands 
of  the  testator  which  he  had  devised,  but  as  to  which  the  devise  failed  to 
take  effect:     Chambers  v.  Tulane,  9  N.  J.  Eq.  146.     Whether  a  power  of  sale 
to  executors  had  terminated :    Bruner  v.  -Meigs,  64  N.  Y.  506.     Whether  an 
executor  in  a  certain  case  had  power  under  the  will  to  sell  realty:    Alkus  v. 
Goettmann,  39  N.  Y.  St.  Rep.  324;  S.  C.,  14  N.  Y.  Supp.  241;  Droge  v.  Cree, 
39  N.  Y.  St.  Rep.  264;   S.  C.,  14  N.  Y.  Supp.  300;  Warren  v.  Banning,  21 
X.   Y.  Supp.   883.     Whether  one  of  several   joint   executors  had  renounced 
his  trust,  the  validity  of  a  sale  by  the  other  executors  under  a  power,  being 
dependent    upon    such    renunciation:     Fleming   v.   Burnham,    100    N.    Y.    1; 

2  N.  E.  Rep.  905.     Whether  executors  acting  under  a  power  had  sold  more 
land   than   was  necessary  for  the    purposes  of  the  testator:     Townshend  v. 
Goodfellow,  40  Minn.   312,  41   N.  W.   Rep.   1056.     Whether  a  deed   executed 
by  one  of  two  joint  executors  was  sufficient  —  the  will  requiring  the  execu- 
tors to  act  jointly  in  the   settlement  of  the  estate:     House  v.   Kendall,   55 
Tex.     40;  Hilton  v.  Sowenfeld,  104  N".  Y.  Supp.  942-.    Whether  a  sale  by  an 
assignee   in   bankruptcy  without   an   order   of   court   was   valid:     Palmer   v. 
Morrison,  104  N.  Y.  132,  10  N.  E.  Rep.  144.     Whether  certain  trustees  of  a 
religious  society  were  competent  to  convey  a  good  title,  under  a  private  act 
authorizing  them  to  sell  and  convey,  the  property  being  liable  to  revert  to  the 
grantor  if  diverted  from  the  purposes  of  the  grant:    Second  Universalist  Soc. 
v.  Dugan,  65  Md.  460,  5  Atl.  Rep.  415.     Whether  a  church  organization  was 
competent  to  convey  a  fee  where  the  title  was  vested  in  the  church's  "  trustees 


844  MARKETABLE    TITLE    To    REAL    ESTATE. 

insist  upon  a  forfeiture  of  the  estate  in  the  hands  of  the  grantee 

and  their  successors  in  office  forever,"  and  there  was  no  conveyance  from  the 
trustees  to  the  church:  -M.  E.  Church  v.  Roberson,  (NT.  J.  Eq.)  58  Atl.  Rep. 
1056.  Whether,  upon  a  true  construction  of  testator's  will,  his  executors 
were  authorized  to  sell  and  convey  his  realty  before  his  son  reached  the  age 
of  twenty-one.  House's  App.,  192  Pa.  St.  108,  43  Atl.  Rep.  413.  Whether  a 
married  woman  was  competent,  under  the  laws  of  Missouri,  to  execute  a  con- 
veyance of  her  separate  estate  without  her  husband  joining  therein:  Kennedy 
v.  Koopman.  166  Mo.  87,  65  S.  W.  Rep.  1020.  Whether,  in  a  case  in  which 
testatrix  created  a  trust  in  favor  of  a  son,  with  power  in  him  to  dispose  of 
the  property  at  his  death  by  will,  but  did  not  name  a  trustee,  the  son  was 
competent  to  convey  the  legal  title.  McDougall  v.  Dixon,  46  N.  Y.  Supp. 
280,  19  App.  Div.  420.  A  power  of  attorney  defectively  acknowledged  will 
not  be  held  good  as  between  the  parties,  if  there  be  no  other  evidence  of  the 
execution  of  the  power  than  the  defective  acknowledgment;  and  a  title  dependent 
on  such  power  is  not  marketable.  Freedman  v.  Oppenheim,  81  N.  Y.  Supp. 
110,  80  App.  Div.  487.  In  a  case  in  which  the  title  depended  on  the  power 
of  a  religious  corporation  to  convey  land,  and  the  purchase  money  was  to  be 
reinvested  in  other  lands  in  trust  for  the  corporation,  the  purchaser  was  re- 
lieved. St.  Mfery's  Church  v.  Stockton,  9  N.  J.  Eq.  520.  A  sheriffs  deed  is 
insufficient  to  support  a  title  thereunder,  unless  a  record  of  the  judgment  and 
execution  under  which  the  sheriff  acted,  can  be  produced.  Hampton  v. 
Specknagle,  9  S.  &  R.  (Pa.)  212,  11  Am.  Dec.  704;  Weyand  v.  Tipton,  5  S.  & 
R.  (Pa.)  332;  Wilson  v.  McVeagh,  2  Yeates  (Pa.),  86.  Distinguish  Burke 
v.  Ryan,  1  Dall.  (U.  S.)  94,  where  possession  had  gone  with  the  deed  for  more 
than  thirty  years.  In  Smith  v.  Moreman,  1  T.  B.  Mon.  (Ky.)  155,  the  vendor, 
complainant  in  a  suit  for  specific  performance,  alleged  that  he  held  title  under 
an  execution  sale,  .but  failed  «to  produce  a  judgment  on  which  the  execution 
issued,  and  his  bill  was  dismissed.  In  Abbott  v.  James,  111  N.  Y.  673.  19 
N".  E.  Rep.  434,  -there  was  a  devise  of  an  entire  estate  in  remainder  to  char- 
itable societies,  with  power  to  the  executor  *to  sell  the  real  estate  and  divide 
the  proceeds  among  the  societies.  I'nder  the  laws  of  New  York  the  devise 
was  invalid,  except  as  to  one-half  of  the  testator's  estate.  After  the  precedent 
estate  determined,  the  executor  sold  the  real  estate  under  the  power,  but  the 
title  was  held  unmarketable:  (1)  Upon  a  question  of  fact,  namely,  the  ability 
of  the  heirs  to  show  that  there  was  personal  property  enough  to  satisfy  the 
devise  to  the  societies;  and  (2)  upon  a  question  of  law,  namely,  whether 'the 
power  of  sale  failed  as  to  so -much -of  the  real  estate  as  could  not  pass  to  the 
charitable  societies.  A  purchaser  cannot  be  compelled  to  take  a  title  de- 
pendent on  a  conveyance  of  a  homestead  estate  to  which  the  grantor's  wife 
was  not  a  party.  Castleberg  v.  Maynard.  95  N.  C.  281.  Whether  an  executor 
had  power  to  exchange  instead  of  selling  property.  Turco  *v.  Trimboli,  137 
N.  Y.  Supp.  343,  152  App.  Div.  431.  Whether  a  sale  and  conveyance  by 
executors,  and,  on  the  same  day,  a  reconveyance  by  their  grantee  to  one  of 
them,  was  a  valid  transaction.  Weintraub  v.  Seigel.  109  N.  Y.  Supp.  215, 
reversed  on  the  evidence,  118  N.  Y.  Supp.  201,  133  App.  Div.  677.  See,  also, 
Prentice  v.  Townsend,  127  N.  Y.  Supp.  1060,  143  App.  Div.  151.  Whether 


OF    DOUBTFUL    TITLES.  845 

of  the  corporation.      The  purchaser  will  not  be  required  to  take 

a  deed  in  the  chain  of  title  executed  by  a  husband,  was  liable  to  be  over- 
turned in  a  divorce  proceeding  by  the  wife.  Singleton  v.  Close,  130  Ga.  716, 
61  S.  E.  722.  Where  the  record  failed  to  -show  connection  between  two  sets 
of  trustees  in  the  chain  of  title  —  the  one  set  being  grantees  in  one  deed,  and 
the  other  set  grantors  in  a  later  deed.  Reffon  Realty  Co.  v.  Adams  L.  Co., 
128  Md.  656,  98  Atl.  199.  Whether  insanity  of  the  wife  of  the  vendor  of 
community  property  rendered  the  vendor's  title  unmarketable.  Colpe  v. 
Lindblom,  57  Wash.  106,  106  Pac.  634.  Whether  certain  Indians,  through 
whom  title  was  claimed,  were  of  mixed  blood.  Geray  v.  Mahnomen  Land 
Co.,  (Minn.)  173  N.  W.  870.  Whether  an  executor  had  power  to  accept 
stock  in  payment  for  land.  Montrose  Realty  Co.  v.  Zimmerman,  (N.  J.  Eq. ) 
73  Atl.  846.  Whether  a  sale  by  the  trustee  of  a  charity,  without  the  authority 
and  approval  of  a  court,  was  valid.  Seif  v.  Krebs,  239  Pa.  423,  86  Atl.  872. 
Titles  held  marketable.  Whether  an  act  authorizing  administrators  c.  t.  a., 
to  execute  powers  of  sale,  validated  a  sale  under  a  will  which-  was  probated 
before  the  passage  of  the  act:  Blakemore  v.  Kimmons,  8  Baxt.  (Tenn.)  470. 
Whether  a  certain  will  charged  the  testator's  realty  with  the  payment  of  his 
debts,  and  whether  a  power  of  sale  was  conferred  on  the  executor:  Coogan  v. 
Ockershausen,  55  N.  Y.  Super.  Ct.  286.  Whether  a  power  of -sale  in  a  convey- 
ance to  trustees  for  the  benefit  of  a  married  woman  was  repugnant  to  the 
trust:  Belmont  v.  O'Brien,  2  Kern.  (N.  Y.)  394.  Whether  a  conveyance  by 
an  infant  trustee  under  decree  of  court  is  valid :  Thompson  v.  Dulles,  5  Rich. 
Eq.  (S.  C.)  370.  Whether  a  power  of  sale  had  been  properly  executed: 
Saunders  v.  Guille,  (Tenn.  Ch.)  37  -S.  W.  Rep.  999.  Whether  the  deed  of  a 
corporation  must  show  authority  of  officers  to  convey:  Womack  v.  Coleman, 
89  Minn.  17,  93  N.  W.  Rep.  663.  Whether  a  certain  devise  to  a  religious 
corporation  in  1882,  in  Xew  York,  was  within  the  statutory  limit,  no  question 
as  to  the  validity  of  the  devise  having  been  raised  by  the  heirs  for  more  than 
fifteen  years:  Moskowitz  v.  Hornberger,  46  N.  Y.  Supp.  462,  20  Misc.  Rep. 
558.  Whether  a  conveyance  by  trustees  of  the  "  Society  of  Shakers  "  verbally 
approved,  was  valid  without  formal  action  by  the  ministry  and  elders:  Feiner 
v.  Reiss,  90  N.  Y.  Supp.  568,  98  App.  Div.  40.  %  Whether,  in  a  case  in  which 
the  grantor,  who  had  declared  a  trust  reserving  to  himself  the  right  to 
sell  and  convey  the  premises  could  convey  an  -absolute  estate,  the  beneficiary 
not  joining  in  the  deed:  Griffith  v.  Maxfield,  66  Ark.  513,  51  S.  W.  Rep.  832. 
Whether  a  power  of  sale  in  the  executors  continued  after  all  debts  and  lega- 
cies were  paid:  Hatt  v.  Rich,  59  N.  J.  Eq.  492,  45  Atl.  969.  Whether  a 
power  of  sale  to  executors  embraced  not  only  -the  territorial  extent  of  the 
testator's  lands -but -also  all  his  interest  in  such  lands:  Hatt  v.  Rich,  59  N.  J. 
Eq.  492,  45  Atl.  Rep.  969.  Whether,  in  a  case  in  which  land  had  been 
sold  by  a  referee  under  a  decree  of  court  to  carry  out  the  provisions  of  the 
will,  the  referee  'was  competent  to  convey  the  title,  and  a  deed  from  the 
executor 'was  unnecessary:  Straus  v.  Benheim,  59  N.  Y.  Supp.  1054,  28  Misc. 
Rep.  660.  Whether  the  declaration  in  a  will  that  testatrix  has  only  one  child 
living  is  sufficient  proof  of  that  fact:  Revol  v.  Stroudback,  107  La.  225,  31 
So.  Rep.  665.  The  fact  that  the  maker  of  a  power  of  attorney  was  described 


846  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

a  title  dependent  upon  a  conveyance  by  a  trustee,  indirectly,  to 

therein  as  "Mrs."  when  she  did  not  sign  as  "Mrs."  did  not  render  the  title 
unmarketable,  there  being  testimony  that  she  was  unmarried.  Revol  v. 
Stroudbaek,  107  La.  295,  31  So.  Rep.  665.  Where  property  was  devised  in 
trust  for  the  benefit  of  a  daughter,  but  by  codicil  the  trust  was  revoked  and 
the  devise  to  the  daughter  made  absolute  and  unqualified,  the  power  of  the 
daughter  to  convey  cannot  be  disputed,  and  a  purchaser  must  take  the  title. 
Scnning  v.  Bush,  23  Ky.  Law  R.  65,  62  S.  W.  Rep.  489.  Defective  execution 
of  a  power  of  sale  under  a  will,  held  no  objection  to  the  title  thereunder, 
where  no  one,  -for  more  than  forty  years,  has  attempted  to  take  advantage  of 
the  defect,  Binzen  v.  Epstein,  69  N.  Y.  Supp.  789,  58  App.  Div.  304  (aff'd). 
Where  a  statute  authorized  personal  representatives  to  specifically  perform 
contracts  for  the  sale  of  lands  made  by  the  testator  or  intestate  during  his 
lifetime,  the  fact  that  a  testator  devised  all  of  his  lands  to  his  children,  does 
not  make  doubtful  or  unmarketable  the  title  which  a  purchaser  of  a  part 
of  such  lands  from  the  testator  in  his  lifetime,  will  receive  from  the  executor. 
The  statute  practically  avoids  the  devise.  Hyde  v.  Heller.  10  Wash.  586,  39 
Pac.  Rep.  249.  The  possibility  that  probate  of  a  will  may  be  revoked,  will 
not  affect  the  title  of  a  purchaser  from  the  executors  under  a  power  of  sale, 
when  no  facts  appear  showing  that  probate  will  probably  be  revoked.  Xor 
is  the  title  invalidated  by  a  failure  of  the  executors  to  distribute  the  proceeds 
of  the  sale  among  those  entitled.  Seldner  v.  McCreery,  75  >Md.  287,  23  Atl. 
Rep.  641.  In  Baker  v.  Shy,  9  Heisk.  (Tenn.)  89,  the  alienage  of  the  vendor's 
grantor  was  held  not  to  render  the  title  unmarketable.  A  title  derived 
through  a  grantor  who  held  for  an  alien,  will  not  be  held  doubtful  or 
unmarketable  because  the  grantor  had  conveyed  without  a  previous  request 
from  the  alien,  though  he  had  covenanted  with  the  alien  to  convey  only  upon 
such  request.  Ludlow  v.  Van  Ness,  8  Bosw.  (N.  Y.)  178.  Whether,  where 
one  of  two  executors  qualified,  the  one  so  qualifying  could  exercise  a  power 
of  sale  given  them  by  the  will.  Heiferman  v.  Scholder,  119  X.  Y.  Supp.  520, 
134  N.  Y.  Supp.  579.  Whether  the  purchase  and  foreclosure  of  a  mortgage 
on  the  estate  by  the  executor  was  valid  —  the  beneficiaries  of  the  estate  hav- 
ing received  the  full  benefit  ^of  the  transaction.  Weidenhold  v.  Koehler,  100 
N.  Y.  Supp.  927,  174  App.  Div.  139.  Whether  the  invalidity  of  a  sale  by 
executors  to  one  of  themselves,  was  discounted,  as  an  objection  to  the  title, 
by  the  passage,  of  the  title  through  intervening  innocent  purchasers  for  value. 
Weintraub  v.  Seigel,  118  N.  Y.  Supp.  261,  133  App.  Div.  677.  Whether 
acquiescence  by  executors  in  a  partition  sale  was  sufficient  in  the  place  of  a 
nale  by  them  under  a  power  in  the  will.  Tolosi  v.  Lese,  104  N.  Y.  Supp.  1095, 
120  App.  Div.  53.  Whether  a  power  of  sale  could  be  executed  by  surviving 
executors.  Danaher  v.  Hildebrand,  131  N.  Y.  Supp.  127,  72  Misc.  Rep.  240. 
Whether  executors  could,  umler  a  power  of  sale,  reconvey  mortgaged  prop- 
erty to  the  mortgagee  in  satisfaction  of  the  mortgage.  Clody  v.  SouthnH, 
109  N.  Y.  Supp.  411.  Whether  an  executor  had  power  under  the  will  to  sell 
realty.  Odell  v.  ClauMCti,  104  N.  Y.  Supp.  1104,  120  App.  Div.  635;  Con- 
nelly v.  Putnam,  51  Tex.  Civ.  App.  233,  111  8.  W.  164.  Whether  an  oral 
declaration  of  trust,  being  invalid  under  the  statute  of  frauds,  rendered  the 
vendor's  title  unmarketable.  Eisler  v.  Halpern,  85  N.  J.  L.  139.  88  Atl.  831. 


OF    DOUBTFUL    TITLES.  847 

himself;  as  where  the  trustee  conveyed  to  a  stranger,  and  the 
stranger  reconveyed  to  him.23 

§  303.  Title  as  dependent  upon  testacy  or  intestacy.  Debts 
of  decedent.  The  bare  possibility  that  a  will  may  be  discovered 
after  the  death  of  a  decedent,  does  not  render  title  by  descent  from 
him  unmarketable.24  Nor,  it  is  apprehended,  would  the  possi- 
bility of  the  discovery  of  a  later  will,  where  he  dies  testate, 
have  that  effect,  unless  there  were  circumstances  sufficient  to  raise 
a  reasonable  doubt  as  to  the  existence  of  such  a  will.  And  a  bare 
possibility  that  a  decedent  may  have  left  debts  for  which  his 
property  would  be  liable,  does  not  render  the  title  of  the  heir 
doubtful,  in  the  absence  of  anything  to  show  the  probable  existence 
of  such  debts.25 

Whether  a  release  signed  by  one  of  two  mortgagees,  who  were  partners,  was 
sufficient.  Bachman  v.  Ennis  R.  E.  &  Inv.  Co.,  199  Mo.  App.  674,  204  S.  W. 
1115.  Where  will  directed  property  to  be  sold  after  death  of  life  tenant  and 
proceeds  paid  to  remainderman,  joinder  of  life  tenant  and  remainderman 
in  the  deed  made  the  title  good.  Sprowl  v.  Blankenbaker,  (Ky. )  127  S.  W. 
496.  Whether  the  affidavit  of  a  grantee  in  the  chain  of  title  was  admissible 
to  supply  the  failure  of  the  abstract  to  show  whether  such  grantee  was 
married  or  single  when  she  acquired  title.  Singer  v.  Investment  Co.,  60  Wash. 
674,  111  Pac.  886.  Whether  a  party  was  estopped  by  his  conduct  to  enforce 
a  building  regulation.  Zelman  v.  Kaupherr,  76  N.  J.  Eq.  52,  73  Atl.  1048. 
Whether  a  certain  act  revoking  the  charter  of  the  vendor,  a  corporation, 
was  constitutional.  Diamond  State  Iron  Co.  v.  Husbands,  8  Del.  Ch.  205, 
68  Atl.  240. 

MGosman  v.  Pfistner,  80  N.  J.  Eq.  432,  83  Atl.  781. 

24Moser  v.  Cochrane,  107  N.  Y.  35,  13  N.  E.  Rep.  442;  Schermerhorn  v. 
Niblo,  2  Bosw.  (N.  Y.)  161;  Dis-brow  v.  Folger,  5  Abb.  Pr.  (N.  Y.)  53;  Mc- 
Dermott  v.  McDermott,  3  Abb.  Pr.  (N.  S.)  (N.  Y.)  451,  dictum. 

^Moser  v.  Cochrane,  107  N.  Y.  35,  13  N.  E.  Rep.  442;  Spring  v.  Sandford, 
7  Paige  (N.  Y.),  550;  Keitel  v.  Zimmerman,  43  N.  Y.  Supp.  676,  19  Misc. 
Rep.  581;  Garden  City  L.  Co.  v.  Miller,  157  111.  225,  41  N.  E.  Rep.  753; 
Moore  v.  Taylor,  (Md.)  32  Atl.  Rep.  320;  Wynkoop  v.  Shoemaker,  37  App. 
D.  C.  258.  The  bare  possibility  of  the  existence  of  debts,  or  of  omitted  or 
posthumous  children,  does  not  make  unmarketable  a  title  founded  on  a  sale 
by  executors.  Spencer  v.  Lyman,  27  S.  D.  471;  131  N.  W.  802.  The  fact 
that  there  was  no  probate  settlement  of  the  estate  of  one  of  the  grantors  in 
the  chain  of  title,  did  not  make  the  title  unmarketable.  Van  Gundy  v. 
Shewey,  90  Kan.  253;  123  Pac.  720;  47  L.  R.  A.  (N.  S.)  645.  In  Kling  v. 
Realty  Co.,  166  Mo.  App.  190,  it  was  held  that  it  was  incumbent  upon  the 
vendor  to  show  that  there  were  no  such  debts.  In  Disbrow  v.  Folger,  5  Abb. 
Pr.  (N.  Y.)  53,  the  title  was  referred  to  a  master  for  the  purpose  of  ascer- 
taining whether  any  such  debts  existed. 


848  MARKETABLE    TITLE    To    REAL    ESTATE. 

In  a  case  in  which  title  was  claimed-  under  a  will  executed  in 
1861,  but  not  found  until  1892,  and  not  offered  for  probate  until 
1899,  after  objections  to  the  title  had  been  raised  by  a  purchaser 
at  a  mortgage  sale,  it  was  held  that  the  purchaser  could  not  be 
compelled  to  take  the  title  until  the  validity  of  the  will  had  been 
adjudicated  by  a  competent  tribunal.26  And  in  a  case  in  which 
there  had  been  no  administration  of  the  estate  of  a  decedent 
through  whom  the  title  hadr  descended,  and  a  sufficient  time  had 
not  elapsed  to  raise  a  presumption  that  administration  would  not 
yet  be  granted,  the  mere  failure  of  the  purchaser  to  show  that 
there  were  debts  due  *by  the  estate,  was  held  no  ground  on  which  to 
compel  him  to  take  the  title.27  But  if  an  estate  be  ultimately 
liable  to  the  payment  of  legacies,  in  case  the  personalty  prove 
insufficient,  the  purchaser  cannot  be  compelled  to  take  the  title." 

It  is  presumed  that  no  person  died  without  heirs;  consequently 
a  vendor,  claiming  under  an  escheat  to  the  State  for  want  of  heirs, 
must  show  that  decedent  left  no  heirs  competent  to  take  the  land 
by  descent.29 

§  303o,  Title  under  tax  laws.  As  tax  titles  depend  upon  a 
strict  compliance  with  all  the  provisions  of  law  under  which  tax 
sales  are  made,  and  as  such  sales  have  been  held  invalid  for  the 
most  trifling  matters,  e.  g.,  the  omission  of  the  dollar  mark  from 
the  head  of  a  column  of  figures  showing  the  amount  of  delinquent 
taxes  in  the  advertisement  of  sale,80  such  titles  have  come  to  be 
looked  upon  with  distrust  and  suspicion.  But  the  mere  fact  that 
the  vendor  holds  under  a  tax  title  will  not  justify  the  purchaser 
in  rejecting  the  title  as  unmarketable  in  those  States  in  which  tax 

•Chew  v.  Tome,  93  Md.  244;  48  AtL  Rep.  701. 

"Chauncey  v.  Leominster,  172  Mam.  340;  52  X.  E.  Rep.  719.  See,  also, 
Ogooshevitz  v.  Arnold,  197  Mich.  203;  163  N.  W.  946.  The  interest  of  a 
deceased  purchaser  who  made  partial  payments  on  the  land  is  realty,  and 
his  widow,  who  completed  the  purchase  and  took  a  deed,  could  not  convey 
a  marketable  title.  Abate  v.  Bianco,  128  N.  Y.  Supp.  271;  143  App.  Div. 
511.  As  to  validity  of  title  dependent  upon  purchase  from  an  heir  where  no 
will  has  been  probated,  see  Werner  v.  Wheeler,  127  N.  Y.  Supp.  158;  142 
App.  Div.  358. 

"  1  Sugd.  Vend.  (8th  Am.  ed.)  572.  Dickinson  v.  Dickinson,  3  Bro.  C.  C. 
19.  See,  aUo,  Platt  v.  Newman,  71  Mich.  112;  38  N.  W.  Rep.  720. 

"In  re  Clark,  116 -N.  Y.  Supp.  101;  131  App.  Div.  688. 

"Coombs  v.  O'Neal,  1  MacArth.  (D.  C.)  405. 


OF    DOUBTFUL,    TITLES.  849 

sales  are  by  statute  declared  to  be  prima  facie  valid.  He  must 
be  able  to  point  out  some  particular  fact,  or  show  the  reasonable 
probability  of  the  existence  of  some  fact,  which  would  raise  a  fair 
question  as  to  the  validity  of  such  sale.31 

An  outstanding  tax  title  does  not  render  the  title  to  the  land 
unmarketable  if  entry  thereunder  be  barred  by  lapse  of  time.32 

There  is,  at  least,  one  advantage  in  a  tax  title.  The  tax  deed, 
being  a  grant  from  the  State  and  evidencing  a  new  and  inde- 
pendent title,  cuts  off  all  such  objections  to  the  title  as  failure 
of  the  abstract  to  show  competency  of  parties  in  the  chain  of  title ; 
the  existence  of  apparently  unsatisfied  incumbrances ;  and  many 
other  objections  too  numerous  to  mention.33 

§  304.  INCTJMBRANCES.  As  a  general  rule  an  incumbrance 
upon  the  premises,  so  long  as  it  may  be  removed  by  application 
of  the  purchase  money,  or  where  the  vendor  being  solvent,  offers 

31  Gates  v.  Parmly,  93  Wis.  294;  66  N.  W.  Rep.  253;  67  N.  W.  Rep.  739. 
Chopin  v.  Pollet,  48  La.  Ann.  1186;  20  So.  Rep.  721.  Mere  possibility  that 
notice  of  the  tax  sale  was  not  given  the  owner,  does  not  make  the  title  there- 
under doubtful.  Rosenblum  v.  Eisenberg,  108  N.  Y.  Supp.  350;  123  App. 
Div.  896.  The  fact  that  the  tax  payer  remains  in  possession  of  the  premises, 
makes  the  title  under  the  tax  sale  unmarketable.  In  re  Safe  Dep.  &  Tr.  Co., 
125  Md.  519;  94  Atl.  93.  Where  the  abstract  failed  to  show  any  judgment, 
precept,  or  affidavit  on  which'  a  tax  deed  in  the  chain  of  title  was  based,  and 
there  was  no  proof  of  possession  and  payment  of  taxes  under  the  deed,  the 
title  was  held  unmarketable.  Koch  v.  Streuter,  232  111.  594;  83  N.  E.  1072. 
In  Matney  v.  Ratliff,  96  Va.  231;  3d  S.  E.  Rep.  512,  it  appeared  that  a 
grantee  of  the  Commonwealth  had  failed  to  enter  the  granted  lands  on  the 
tax  books  and  to  pay  taxes  thereon  for  a  number  of  years,  in  consequence  of 
which  the  lands  were  forfeited  to  the  Commonwealth.  It  was  held  no  objec- 
tion to  the  title  of  a  subsequent  grantee  of  the  Commonwealth  that  there  was 
no  judgment,  decree,  inquest,  or  other  matter  of  record  showing  the  forfeiture 
of  the  lands  to  the  Commonwealth  by  default  of  the  first  grantee.  In  Fitz- 
patrick  v.  Leake,  47  La.  1643;  18  :So.  Rep.  649,  it  was  held  that  the  pur- 
chaser could  not  be  compelled  to  take  the  title  unless  the  tax  deed  was 
produced  and'  its  prima  facie  effect  was  unimpaired  by  testimony.  Where 
the  vendor  held  under  a  tax  sale,  with  a  right  in  minors  and  others  not  sui 
juris  to  redeem  from  the  sale  within  a  year  after  removal  of  disabilities,  it 
was  held  that  an  agreement  by  him  to  perfect  the  title  was  not  performed 
by  obtaining  a  decree  quieting  his  title  against  unknown  claimants.  Williams 
v.  Doolittle,  (Iowa)  88  N.  W.  Rep.  350. 

^Gosman  v.  Pfistner,  80  1ST.  J.  Eq.  432;  83  Atl.  781. 

33  Wilson  v.  Korte.  91  Wash.  30;    157  Pac.  47. 

107 


850  MARKETABLE    TITLE    TO    REAL    ESTATE. 

to  remove  it  or  may  be  compelled  to  do  so,  furnishes  no  ground 
upon  which  the  purchaser  may  refuse  to  complete  the  contract,  or 
recover  damages  against  the  vendor.34  But  if  both  parties  enter 
into  the  contract  with  the  express  understanding  that  the  prem- 
ises are  free  and  clear  of  incumbrances,  it  may  be  doubted  whether 
the  purchaser  would  be  compelled  to  take  subject  to  an  incum- 
brance,  even  though  it  could  be  discharged  out  of  deferred  pay- 
ments of  the  purchase  money.35  If,  however,  the  purchase  money 
be  presently  due  and  the  vendor  can  produce  some  one  who  is 
competent  to  receive  payment  of  the  incumbrance  and  execute  a 
release  or  satisfaction  piece,  no  reason  is  perceived  why  the  pur- 
chaser should  not  be  compelled  to  complete  the  contract.38  The 
cases  in  which  the  existence  of  an  incumbrance  upon  the  premises 
will  justify  the  purchaser  in  refusing  to  go  on  with  the  purchase, 
until  the  objection  be  removed,  may  be  thus  classified :  (1)  Those 
in  which  the  existence  of  the  incumbrance  is  admitted,  or  free 

"Ante,  §  245.  Post,  §  308.  2  Sugd.  Vend.  (8th  Am.  ed.)  25  (425).  The 
general  rule  is  that  a  pecuniary  charge  upon  the  estate  presents  no  objection 
to  the  title  if  the  purchaser  can  be  protected  against  it.  fox  v.  Cmonton, 
31  Beav.  378;  Wood  v.  Mnjoribanks,  3  De  G.  &  J.  329;  7  H.  L.  Cas.  808. 
Tiernan  v.  Roland,  15  Pa.  St.  441;  Pangborn  v.  Miles,  10  AM..  X.  Cas.  (X. 
Y.)  42;  Ditchey  v.  Lee,  167  Ind.  267;  78  N.  E.  972;  Krtp.rs  v.  Yocum,  84 
Kan.  554;  114  Pac.  1063;  Boyd  v.  Hoffman,  241  Pa.  421;  88  Atl.  675;  Foor 
v.  Bank  A  Tr.  Co.,  144  Ky.  682;  139  S.  W.  840.  Wren  v.  Cooksey,  147  Ky. 
825;  146  S.  W.  1116;  Brewer  v.  Herbert,  30  M<1.  301 ;  96  Am.  Dec.  582,  a  case 
in  which  the  decree  provided  that  the  incumbrance,  a  judgment  against  the 
vendor,  be  paid  out  of  the  purchase  money.  The  vendor  had  also  appealed 
from  the  judgment  and  executed  an  appeal  bond  covering  the  judgment  and 
coats. 

•Karker  v.  Haverly,  50  Barb.  (N.  Y.)  79;  Chambers  v.  Tulane,  9  N.  J.  Kq. 
146;  Spencer  v.  Sandusky,  46  W.  Va.  582;  33  S.  E.  Rep.  221.  An  obvious 
reason  for  this  position  is,  that  the  existence  of  the  incumbrance  might  pre- 
vent an  advantageous  resale  by  the  purchaser.  Besides  if  the  purchaser.  f»r 
reasons  satisfactory  to  himself,  chooses  to  in-Ut  ii|><m  a  provision  tliat  tin- 
premises  shall  be  free  of  incumbrances,  who  shall  gainsay  him,  when  he  in-i-t> 
upon  a  literal  performance  of  the  agreement?  Armstrong  v.  Coal  Co.,  67 
W.  Va.  580;  69  8.  E.  195;  Cooper  v.  Rutland,  99  S.  C.  S3.  s_-  s.  K.  «I«M. 
In  Rothwell  v.  Schmidt,  248  111.  586;  94  X.  K.  S2,  it  was  held  that  the  court 
erred  in  entering  a  decree  which  required  the  purchaser  to  pay  the  purchase 
money  and  take  the  title,  and  required  the  vendor  to  pay  off  two  mortgage* 
out  of  the  purchase  money. 

"Webster  v.  Kings  Co.  Trust  Co.,  80  Hun  (N.  Y.),  420;  30  N.  Y.  Supp. 
357. 


OF    DOUBTFUL    TITLES.  851 

from  doubt;  and  (2)  those  in  which  the  fact  or  existence  of  the 
incumbrance  is  a  matter  of  doubt  or  dispute. 

§  305.  (i)  Admitted  incumbrances.  We  have  seen  that  an 
admitted  pecuniary  charge  or  lien  upon  the  premises  will  excuse 
the  purchaser  from  completing  the  contract  unless  the  purchase 
money  can  be  applied  to  its  removal  without  subjecting  him  to 
loss,  inconvenience  or  expense.37  The  vendor  has  a  right  to  per- 
fect the  title  by  removing  incumbrances.38 

Strictly  speaking,  an  incumbrance  is  not  a  defect  in  the  title  to 
an  estate,39  though  such  a  defect  may  amount  to  an  incumbrance. 
The  technical  legal  definition  of  the  word  "incumbrance,"  as  it 
relates  to  real  property,  is,  any  right  to  or  interest  in  the  land 
granted,  to  the  diminution  of  the  value  of  the  land,  but  consistent 
with  the  passing  of  the  fee  by  a  conveyance  of  the  land.40  Hence, 
technically  the  legal  title  may  be  perfect,  though  the  estate  be 
incumbered  to  its  full  value,  for  the  incumbrances  may  be  paid 
off  and  the  incumbrancer  compelled  to  execute  a  release.  But, 
if  the  title  be  imperfect,  if  the  better  right  be  outstanding  in  a 
stranger,  there  is  no  way  in  which  his  claim  can  be  quieted  with- 
out his  consent.  The  courts,  however,  speak  indifferently  of 
incumbrances  as  well  as  adverse  claims  as  constituting  defects  of 
title,  and  for  all  practical  purposes  they  may  be  so  regarded, 
especially  if  they  be  of  the  irremovable  kind,  such  as  easements, 
rights  of  way  and  other  incorporeal  rights. 

A  purchaser  cannot  be  compelled  to  complete  his  purchase  or 
accept  the  title  if  there  is  an  incumbrance  on  the  property  which 
the  vendor  cannot  or  will  not  remove,  and  which  the  purchaser 
cannot  himself  remove  by  an  application  of  the  purchase  money.41 
Of  this  kind  are  easements,  servitudes,  rights  of  way,42  reser- 

37  Ante,  §  245. 

"Post,  ch.  32;  ante,  ch.  19. 

19  Heimburg  v.  Ismay,  35  N.  Y.  Super.  Ct.  35.  Stephen's  Appeal,  87  Pa.  St. 
207;  Tiernan  v.  Roland,  3  Harris  (Pa.),  441. 

"Prescott  v.  Trueman,  6  Mass.  627;  3  Am.  Dec.  249. 

41 1  Sugd.  Vend.   (8th  Am.  ed.)   473   (312). 

42  Shackelton  v.  Sutcliff,  1  De  G.  &  Sni.  609;  Scripture  v.  Morris,  56  N.  Y. 
Supp.  476;  38  App.  Div.  377;  Kerrigan  v.  Backus,  74  N.  Y.  Supp.  906;  69 
App.  Div.  329;  Scott  v.  Beutel,  23  Grat.  (Va.)  873;  Hart  v.  pandlin,  43 
Mo.  171,  where,  however,  the  purchaser  was  deemed  to  have  waived  the 


852  MARKETABLE    TITLE    TO    REAL    ESTATE. 

objection.  Pryor  v.  Buffalo,  112  N.  Y.  Supp.  437;  White  v.  Savings  Bank, 
171  N".  Y.  Supp.  426;  Prentice  v.  Erskine,  164  Cal.  446;  129  Pac.  585  (irriga- 
tion ditch,  and  dedication  of  right  of  way  across  the  premises)  ;  Tandy  v. 
\Vai-sch,  154  Cal.  108;  97  Pac.  69;  Wingard  v.  Copeland,  64  Wash.  214: 
116  Pac.  670;  De  Voney  v.  Chiappi,  192  111.  App.  437.  Right  of  way 
reserved  by  railway  company  justifies  rejection  of  title  by  purchaser.  Dorsch 
v.  Andrus,  111  >Min.  287;  126  N.  W.  1071;  S.  C.  133  N.  W.  480.  A  right  of 
way  disused  and  fenced  across  for  more  than  twenty-one  years,  is  no  objec- 
tion to  the  title.  Clody  v.  Southard,  109  N.  Y.  Supp.  411.  Proceedings  by 
a  railway  company  and  Us  pendens  to  condemn  a  right  of  way  through  the 
premises,  justify  the  purchaser  in  rejecting  the  title,  though  he  might  be 
entitled  to  receive  the  condemnation  money.  Miller  v.  Calvin  Philips  &  Co., 
44  Wash.  226;  87  Pac.  264.  Telephone  line,  visibly  in  operation  on  the 
premises  and  enhancing  the  value  of  the  property,  did  not  make  the  title 
unmarketable.  Sachs  v.  Owings,  121  Va.  162;  92  S.  E.  997.  Public  high- 
ways and  other  incumbrances  affecting  the  physical  condition  of  the  prop- 
erty, open  to  the  observation  of  the  purchaser,  and  presumably  allowed  for 
in  the  purchase  money  are  no  objection  to  the  title.  Ferguson  v.  Edgar, 
(Cal.)  171  Pac.  1061.  The  purchaser  of  a  tanyard  cannot  be  compelled  to 
take  the  premises  subject  to  an  easement  in  the  stream  supplying  the  yard. 
Wheeler  v.  Tracy,  49  N.  Y.  Super.  Ct.  208.  A  right  on  the  part  of  a  third 
person  to  have  a  drain  pipe  and  water  pipe  across  the  premises  sold,  to  the 
maintenance  of  which  the  purchaser  must  contribute,  is  a  servitude  upon  the 
property  amounting  to  an  inrumbrance,  and  entitles  the  purchaser  to 
rescind.  Kearney  v.  Hogan,  154  Pa.  St.  112;  25  Atl.  Rep.  1076;  Hixson  v. 
Hovey,  18  Cal.  App.  230;  122  Pac.  1097.  A  space  to  be  left  for  roads  and 
levees  by  riparian  owners  is  a  legal*  servitude  and  does  not  constitute  an 
incumbrance.  Bourg  v.  Niles,  6  La.  Ann.  77.  A  dedication  of  a  part  of  the 
premises  as  a  street  is  a  fatal  objection  to  the  ti-tle.  Turner  v.  Reynolds, 
81  Cal.  214;  23  Pac.  Rep.  546.  Koshland  v.  Spring,  116  Cal.  680;  48  Pac. 
Rep.  58;  Agens  v.  Koch,  74  N.  J.  Eq.  528;  70  Atl.  348.  Dedication  of  un- 
opened street,  though  not  accepted  and  though  purchaser  saw  map  with 
street  marked  on  it,  made  the  title  unmarketable.  Simpson  v.  Klipstein, 
00  X.  J.  Eq.  197;  105  Atl.  218.  A  right  in  third  persons  to  pipe  away  water 
from  a  spring  on  the  premises  entitles  the  purchaser  to  relief.  Melirk  v. 
Cross,  62  N.  J.  Eq.  545;  52  Atl.  16.  So,  also,  a  right  to  pipe  oil  across  the 
land.  Kroljter  v.  Clark  (Cal.)  174  Pac.  657.  The  existence  of  a  highway 
on  the  land,  at  bent,  only  entitles  the  purchaser  to  a  reduction  of  the  pur- 
chase money  by  the  amount  that  such  highway  reduces  the  value  of  the 
tract.  Beach  v.  Hudson  R.  Land  Co.,  65  N.  J.  Eq.  426;  56  Atl.  Rep.  K.7. 
Mere  non-user  of  the  right  of  way,  though  for  a  period  of  more  than  twenty- 
yean,  is  not  sufficient  to  extinguish  the  right,  in  the  absence  of  evidence 
of  acts  and  possession  hostile  to  the  exercise  of  the  right.  Marshall  v. 
Wenninger,  46  N.  Y.  Supp.  462;  20  Misc.  Rep.  658.  The  selection  and 
adoption  of  a  railroad  right  of  way  across  the  premises,  evidenced  by  a  plan 
or  map  of  the  route  returned  by  the  company's  engineers  to  its  office,  is  such 
an  inrumbrance  as  justifies  the  purchaser  in  rejecting  the  title,  though  the 
vendor  has  not  been  completely  divested  of  his  title  to  the  "right  of  way* 


OF    DOUBTFUL    TITLES.  853 

vations   of  minerals,43   building  restrictions,44  restrictions   as  to 

land  by  payment  of  the  damages.  Johnston  v.  Gallery,  184  Pa.  St.  146;  39 
Atl.  Rep.  73.  A  covenant  running  with  the  land,  limiting  the  depth  to  which 
foundations  might  be  sunk  on  a  dividing  line,  and  providing  for  the  protec- 
tion of  existing  foundations  in  case  of  building,  is  an  incumbrance  justifying 
rejection  of  the  title.  Leinhardt  v.  Kalcheim,  79  N.  Y.  Supp.  500;  39  Misc. 
Rep.  308.  Where  the  evidence  showed  that  the  road  or  street  had  been 
abandoned  by  the  municipal  authorities  and  the  public  for  more  than  twenty- 
five  years,  houses  having  in  the  meanwhile  been  built  across  it,  the  purchaser 
was  compelled  to  complete  the  contract.  Baldwin  v.  Trimble,  85  Md.  396; 
37  Atl.  Rep.  176;  36  L.  R,  A.  489. 

43 1  Sugd.  Vend.  (8th  Am.  ed.)  473  (312).  Adams  v.  Henderson,  168  U.  S. 
573;  18  Sup.  Ct.  Rep.  179.  A  reservation  of  mineral  rights  is  no  objection 
to  the  title  if  th«  evidence  shows  that  there  is  no  reason  to  believe  that 
there  are  minerals  in  the  land.  Winne  v.  Reynolds,  6  Paige  (X.  Y.),  407. 

"Wetmore  v.  Bruce,  118  N.  Y.  319;  23  N.  E.  303;  Gilbert  v.  Peteler,  38 
N.  Y.  165;  97  Am.  Dec.  785;  Reynolds  v.  Cleary,  61  Hun  (N.  Y.),  590;  16 
N.  Y.  Supp.  421;  Nathan  v.  Morris,  62  Hun  (N.  Y.),  452;  17  N.  Y.  Supp. 
13;  Kountze  v.  Hellmuth,  67  Hun,  344;  22  N.  Y.  Supp.  204;  Roussel  v.  Lux, 
80  X.  Y.  Supp.  341;  39  Misc.  JRep.  508;  Jeffries  v.  Jeffries,  117  Mass.  184; 
McGlynw  v.  Maynz,  104  Mass.  263.  Rayman  v.  Klare,  242  Pa.  448; 
89  Atl.  591;  Carlton  v.  Smith,  33  Ky.  L.  R.  647;  110  S.  W.  673;  Bull  v. 
Burton,  227  N.  Y.  101;  124  N.  E.  227;  Bacot  v.  Fessenden,  115  X.  Y.  Supp. 
698;  130  App.  Div.  819;  McDougall  v.  Schneider,  118  X.  Y.  Supp.  861;  134 
App.  Div.  208;  Altman  v.  McMillin,  101  X.  Y.  Supp.  970;  115  App.  Div.  234; 
Levin  v.  Hill,  102  X.  Y.  Supp.  690;  1-17  App.  Div.  472;  Xeagle  v.  Hudson, 
144  X.  Y.  Supp.  221;  Shea  v.  Evens,  109  Md.  229;  72  Atl.  600;  Tandy  v. 
Waesch,  154  Cal.  108;  97-  Pac.  69;  Evans  v.  Marsh,  38  App.  D.  C.  341;  Krah 
v.  Wassermer,  75  X.  J.  Eq.  109;  71  Atl.  404.  A  restriction  against  building 
within  a  certain  distance  of  a  street  line  is  an  incumbrance  not  susceptible  of 
pecuniary  compensation.  Adams  v.  Valentine,  33  Fed.  Rep.  1  (X.  Y.).  As  to 
whether  building  restrictions  run  with  the  land  and  bind  subsequent  pur- 
chasers, see  Trustees  v.  Lynch,  70  X.  Y.  440;  26  Am.  Rep.  615;  Post  v.  Weil, 
115  X.  Y.  361;  22  X.  E.  Rep.  145.  In  Hoyt  v.  Ketcham.  54  Conn.  60;  5  Atl. 
Rep.  606,  it  was  held  that  a  restriction  against  cheap  buildings  was  an  inter- 
est which  the  grantor  or  his  executor,  with  power  to  convey,  might  release  by 
quitclaim  deed  to  the  holder  of  the  title,  and  that  such  release  removed  an 
objection  to  the  title  founded  on  the  restriction.  A  condition  that  no  mill, 
factory,  brewery  or  distillery  shall  be  erected  on  the  premises  makes  the  title 
unmarketable.  Batley  v.  Foerderer,  162  Pa.  St.  460;  29  Atl.  Rep.  868.  A  build- 
ing restriction  created  by  a  former  owner  is  not  removed  by  a  subsequent  sale 
of  the  premises  for  taxes,  and,  therefore,  remains  a  substantial  objection  to 
the  title.  Lesley  v.  'Morris,  9  Phila.  (Pa.)  110;  30  Leg.  Int.  108.  Building 
restrictions  are  no  ground  on  which  the  title  may  be  rejected,  where  they 
amount  to  a  mere  personal  covenant  not  running  with  the  land,  and  the 
covenant  has  been  discharged  by  a  conveyance  of  the  land.  Krekeler  v.  Aul- 
bach,  65  X.  Y.  Supp.  908;  51  App.  Div.  591.  The  purchaser  is  not  required  to 


854  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

uses,45  unexpired  leases/8  charges  upon  the  property  for  the  sup- 
search  the  records  for  building  restrictions.  Liebman  v.  Hall,  180  X.  Y. 
Supp.  514;  110  Misc.  Rep.  365.  Garage  held  not  within  a  certain  building 
restriction.  Goldstein  v.  Hirsh,  178  N.  Y.  Supp.  325;  108  Misc.  Rep.  294. 
The  court  will  not  inquire  whether  the  building  restriction  is  beneficial  or 
otherwise.  Dethloff  v.  Viot,  158  N.  Y.  Supp.  522;  172  App.  Div.  201,  citing 
Wetmore  v.  Bruce,  118  N.  Y.  319;  23  N.  E.  303.  The  purchaser  is  not 
chargeable  with  notice  of  a  building  restriction  created  by  the  New  York 
City  board  of  estimate  and  apportionment.  Lincoln  Tr.  Co.  v.  Williams  Bldg. 
Corp'n.,  169  X.  Y.  Supp.  1045;  183  App.  Div.  225.  That  the  restrictions  do 
not  affect  the  market  value  of  the  property  is  immaterial.  Bull  v.  Burton, 
164  N".  Y.  Supp.  997;  177  App.  Div.  824.  The  purchaser  is  not  obliged  to 
take  the  property  subject  to  restrictions  contained  in  the  deed  under  which 
the  vendor  holds.  Bolognino  v.  Shetland,  147  N.  Y.  Supp.  981;  162  App. 
Div.  679.  The  building  restrictions  do  not  make  the  title  unmarketable  if 
they  be  inoperative  under  statute  or  other  law.  Bull  v.  Burton,  2-27  X.  Y. 
101 ;  124  X.  E.  227.  Where  the  contract  was  to  convey  by  warranty  deed, 
parol  evidence  was  not  admissible  to  show  that  building  restrictions  wore 
to  be  inserted  in  the  deed.  Xeff  v.  Rubin,  161  Wise.  511;  154  N.  W.  976. 

*Dart.  V.  &  P.  (5th  ed.)  119,  where  it  is  said  that  a  covenant  against 
certain  trades  being  carried  on  on  the  premises  is  a  serious  defect  in  the 
title  and  should  be  stated  in  the  particulars.  Darlington  v.  Hamilton,  Kay, 
550;  Bartlett  v.  Salmon,  1  Jur.  (X.  S.)  278;  6  De  G.,  M.  &  G.  33.  Super- 
visors  v.  Bedford  High  School,  92  Va.  292;  23  S.  E.  Rep.  299;  Evans  v. 
Marsh,  38  App.  D.  C.  341;  Ingersoll  Eng.  Co.  v.  Crocker.  228  Fed.  844;  14:{ 
C.  C.  A.  242;  Propper  v.  Colson,  8«  X.  J.  Eq.  399;  99  Atl.  385;  Krah  v. 
Wassmer,  78  N.  J.  Eq.  305;  8il  Atl.  1133;  Bacot  v.  Fessemlen,  115  X.  Y. 
Supp.  698;  130  App.  Div.  819;  Eckel  v.  Spitzer,  111  X.  Y.  Supp.  459;  Xeff  v. 
Rubin,  161  Wise.  511;  154  X.  W.  976.  The  court  cannot  decide  to  be  imma- 
terial a  restriction  as  to  u.ses  which  the  parties  agreed  wa«  a  defect  to  be 
cured  by  release  or  allowed  for  in  the  purchase  price.  Carroll  v.  Trust  Co., 
115  X.  Y.  Supp.  660;  131  App.  Div.  221;  Flannagan  v.  Fox,  144  X.  Y.  706: 
39  X.  E.  857.  Premises  not  to  be  used  as  a  slaughter-house,  Raynor  v.  L\»n. 
46  Hun  (X.  Y.).  227;  tavtrn,  Post  v.  Weil,  8  Hun  (X.  Y.),  418;  reversed  in 
115  X.  Y.  361;  22  X.  E.  Rep.  145,  on  ground  that  subsequent  purchaser  VH 
not  bound  by  the  restriction;  for  any  dangerous  or  offensive  occupation. 
Terry  v.  Westing,  5  X.  Y.  Supp.  99.  Any  restriction  of  the  right  to  use  tin- 
land  for  any  and  all  reasonable  purposes  is  an  ineumbrance.  Terry  v.  \\Y-t- 
ing.  5  N.  Y.  Supp.  90;  Van  Schaick  v.  Lese,  66  X.  Y.  Supp.  64;  31  Mi- 
Rep.  610.  A  covenant  by  a  prior  grantee  not  to  create  a  nuisance  on  the 
premises  in  not  an  ineumbrance  to  which  a  purchaser  may  object  as  a  defci-t 
in  the  title,  since  the  covenant  is  no  more  than  what  the  law  would  oblige  the 
grantee  to  refrain  from  doing  independently  of  contract.  Clement  v.  Burtis, 
121  X.  Y.  708;  24  X.  E.  Rep.  1013.  A  covenant  binding  the  land  that  no 
intoxicating  liquors  should  ever  be  manufactured  or  sold  on  the  preni i-c- 
rendem  the  title  unmarketable.  Scudder  v.  Watt,  !)«>  N.  Y.  Supp.  605;  98 
App.  Div.  40. 

*  Judaon  v.  Wans,  11  Johns.  (N.  Y.)  525;  6  Am.  Dec.  392;  Tucker  v.  Wood, 


OF    DOUBTFUL    TITLES.  855 

port  of  particular  persons/7  inchoate  rights  of  dower,48  outstand- 
ing life  interests,49  outstanding  contract  interests,50  proceedings  in 

12  Johns.  (X.  Y.)  190;  7  Am.  Dec.  305;  Fuller  v.  Hubbard,  6  Cow.  (X.  Y.) 
13;  16  Am.  Dec.  423;  Green  v.  Green,  9  Cow.  (N.  Y.)  46;  Warner  v.  Hat- 
field,  4  Bl.  (Ind.)  392;  Coves  v.  Hallahan,  209  Pa.  St.  224;  58  Atl.  Rep.  158; 
Neagle  v.  Hudson,  144  N.  Y.  Supp.  221;  Foland  v.  Italian  Sav.  Bank,  108 
1ST.  Y.  Supp.  57;  123  App.  Div.  59&;  Colpe  v.  Lindblem,  57  Wash.  106;  106 
Pac.  634.  A  covenant  for  renewal  of  a  lease,  of  which  neither  party  is  advised, 
relieves  a  purchaser  from  his  agreement  to  take  subject  to  the  unexpired 
lease.  Fruhauf  v.  Bendheim,  6  N.  Y.  Supp.  264;  affd.,  127  N.  Y.  587;  28 
N.  E.  Rep.  417. 

47  As  to  effect  and  validity  of  condition  to  support  grantor,  see  Spaulding 
v.  Hollenbeck,  35  N.  Y.  204;  Leach  v.  Leach,  4  Ind.  628;  Berryman  v. 
Schumaker,  67  Tex.  312,  If  the  purchaser  buys  with  notice  that  vendor's 
title  is  conditioned  upon  payment  of  an  annuity  charged  upon  the  land,  he 
must  complete  the  contract.  Ditchey  v.  Lee,  167  Ind.  267;  78  N".  E.  972. 

«Sugd.  Vend.  572,  575  (382,  384).  Parks  v.  Brooks,  16  Ala.  529;  Lewis 
v.  Coxe,  5  Harr.  (Del.)  401;  Andrews  v.  Word,  17  B.  Mon.  (Ky.)  518;  Por- 
ter v.  Xoyes,  2  Greenl.  (Me.)  22;  11  Am.  Dec.  30;  Clarke  v.  Redman,  1  Bl. 
(Ind.)  379.  Contract  for  "good  and  lawful  title,"  or  conveyance  "free  from 
incumbrance,"  obliges  vendor  to  furnish  a  deed  with  relinquishment  of  con- 
tingent right  of  dower.  Thrasher  v.  Pinkard,  23  Ala.  616;  Estep  v.  Watkins, 
1  Bland  (Md.),  486;  Polk  v.  Sunnier,  2  Strobh.  (S.  C.)  81;  Jones  v.  Gard- 
ner, 10  Johns.  (X.  Y.)  266;  Heimburg  v.  Ismay,  35  N".  Y.  Super.  Ct.  35; 
Fitts  v.  Hoitt,  17  N.  H.  530;  Goodkind  v.  Barttett,  153  111.  419;  38  N.  E. 
Rep.  1045;  Cowan  v.  Kane,  211  111.  572;  71  N.  E.  Rep.  1097;  Vaughn  v. 
Butterfield,  '85  Ark.  289,  107  S.  W.  903,  122  Am.  St.  Rep.  31;  Eisler  v. 
Halperin,  89  N.  J.  L.  278,  98  Atl.  245;  Long  v.  Chandler,  10  Del.  Ch.  339, 
92  Atl.  256;  Lazzell  v.  Keenan,  77  W.  Va.  180,  87  S.  E.  80.  A  statute  merely 
authorizing  the  sale  of  the  property  of  lunatics  does  not  authorize  the  court 
or  its  officers  to  execute  a  deed  which  will  bar  a  lunatic  wife  of  her  inchoate 
right  of  dower,  and  a  purchaser  from  the  husband  and  committee  of  a  lunatic 
is  not  bound  to  accept  such  a  deed.  Dun  v.  Huether,  64  Hun  (N.  Y. ),  18, 
18  N.  Y.  Supp.  723.  Where  a  wife  was  a  party  to  a  junior  mortgage,  but 
was  not  a  party  to  the  senior  mortgage  and  the  junior  mortgage  was  fore- 
closed, and  the  purchaser  thereunder  made  a  party  to  a  suit  to  foreclose 
the  senior  mortgage,  it  was  held  that  the  sale  under  the  junior  mortgage 
extinguished  the  wife's  inchoate  dower  right,  and  that  a  title  under  a  fore- 
closure of  the  senior  mortgage  was  free  from  any  claim  on  the  part  of  the 
wife.  Calder  v.  Jenkins,  16  N.  Y.  Supp.  797. 

"Griffith  v.  Maxfield,  63  Ark.  548;  39  S.  W.  852;  Dikeman  v.  Arnold, 
71  Mich.  656;  40  N".  W.  Rep.  42.  In  this  case  vendor  was  seised  in  fee 
of  a  part  of  the  estate  and  entitled  to  a  vested  remainder  in  fee  as  to  the 
other  part.  It  was  held  that  the  purchaser  could  not  be  compelled  to 
accept  a  conveyance  of  the  \vhole  and  rely  on  his  grantor's  covenants  of 
warranty  in  case  he  should  be  disturbed  by  the  owner  of  the  precedent 
particular  estate. 

50  Gates  v.  Parmly,  93  Wis.  294;  66  N.  W.  Rep.  253;  67  X.  W.  Rep.  739. 


856  MARKETABLE    TITLE    TO    REAL    ESTATE. 

eminent  domain51  dedication,  or  condemnation,  or  ordinance  for 
appropriation  of  part  of  the  land  for  street  purposes  ;52  unopened 
highways;"  reservation  of  right  of  way  for  government  ditch;" 
reservation  for  schoolhouse  ;55  public  servitudes58  and  the  like. 
Wherever  these  materially  lessen  the  value  of  the  premises  and 
cannot  be  compensated  for  by  way  of  damages  or  abatement  of 
the  purchase  money,  specific  performance  at  the  suit  of  the 
vendor  will  be  denied."  And  the  fact  that  the  vendor  is  solvent 
and  able  to  respond  in  damages  for  a  breach  of  the  contract  is  no 
ground  upon  which  the  purchaser  can  be  compelled  to  accept  the 
incumbered  title.58  We  have  already  considered  the  question  as 
to  when  easements  affecting  the  physical  condition  of  the  property 
constitute  a  breach  of  the  covenant  against  incumbrances.59  The 
cases  there  cited  are  equally  applicable  to  the  question  whether 
the  existence  of  such  easements  entitle  the  purchaser  to  a  rescis- 
sion of  the  contract. 

"Cavanaugh  v.  McLaughlin,  38  Minn.  83;  35  N.  W.  Rep.  578;  Evans  v. 
Taylor,  177  Pa.  280;  35  Atl.  635.  Contra,  Nixon  v.  Moore,  190  Fed.  913; 
111  C,  C.  A.  503;  36  L.  R,  A.  (N.  S.)  1067;  but  see  the  dissenting  opinion 
of  Sanborn,  J.,  in  that  case.  In  Wagner  v.  Perry,  47  Hun  (N.  Y.),  516, 
it  was  held  that  the  mere  filing  of  a  map  by  street  commissioners,  con- 
taining a  plan  for  widening  a  street,  the  effect  of  which  would  be  to  cut  off 
a  part  of  a  lot  sold,  would  not  entitle  the  purchaser  to  rescind  the  contract; 
the  title  not  being  affected  until  actual  proceedings  had  been  taken  to  widen 
the  street  and  they  might  never  be  taken.  See,  however,  Forster  v.  Scott. 
136  N.  Y.  577;  32  N.  E.  Rep.  976,  and  Daniel  v.  Shaw,  166  Mass.  582;  44 
N.  E.  Rep.  991.  where  a  different  view  seems  to  have  been  entertained. 

"Grow  v.  Taylor,  23  N.  D.  4«9;  137  N.  W.  451;  Evans  v.  Taylor,  177 
Pa.  286;  35  Atl.  636;  69"  L.  R.  A.  790:  Atlantic  Refining  Co.  v.  Sylvester, 
231.  Pa.  491 ;  80  Atl.  1091 ;  Shoub  v.  Dunbar,  256  Pa.  311 ;  100  Atl.  829;  even 
though  the  ordinance  was  invalid  and  was  afterwards  set  aside,  Graybill  v. 
Ruhl,  225  Pa.  417:  74  Atl.  239. 

"Lombard  v.  Kies,  79  Oreg.  355:   154  Pac.  757. 

••Cosby  v.  Danzinger.    (Cal.  App.)    175  Pac.  809. 

"Reuthler  v.  Ramsin,  91  N.  J.  L.  262;   102  Atl.  351. 

"Morgan  v.  Dibble  (Cal.  App.)   184  Pac.  704. 

"O'Kane  v.  Riser,  25  Ind.  168.  Special  assessments  for  improvements 
which  add  to  the  value  of  the  property  do  not  make  the  title  unmarketable. 
Ootthelf  v.  Stranahan,  138  N.  Y.  345;  34  N.  E.  286;  20  L.  R.  A.  455;  Blivia 
v.  Franklin  Inv.  Co.,  197  Mn.  App.  369;  194  8.  W.  1073;  Cornelius  v. 
Kromminga,  179  Iowa,  712;  161  N.  W.  624. 

"Ante,  ||  85,  246. 

"Ante,  II  126,  127. 


OF    DOUBTFUL    TITLES.  857 

The  owner  of  a  lot  subject  to  a  local  building  restriction  has  no 
such  equitable  easement  in  the  other  lots  subject  to  that  restric- 
tion as  will  entitle  him  to  require  the  observance  of  the  restriction, 
hence  the  violation?  of  such  restriction  by  other  owners  in  the 
vicinity  constitutes  no  incumbrance  or  defect  in  his  title  to  which 
a  purchaser  may  object.60 

The  rights  of  proprietors  in  a  stream  within  the  limits  of  their 
own  respective  properties  are  not  easements  with  respect  to  other 
persons  through  whose  premises  the  stream  flows;  hence,  the  fact 
that  a  stream  flows  through  the  purchased  land  can  be  no  objection 
to  the  title.  The  purchaser  is  bound  to  take  notice  of  the  physical 
condition  of  the  property,  and  his  contract  is  conclusively  pre- 
sumed to  have  been  made  subject  to  such  condition.61  A  contract, 
to  give  a  "  good  and  sufficient  title,"  will  not  oblige  the  vendor  to 
extinguish  a  perpetual  rent  charge  on  the  premises,  where  the  con- 
tract expressly  provides  that  the  purchaser  shall  take  subject  to 
such  charge.66  Where  the  contract  refers  to  the  land  sold  as  the 
same  described  in  a  certain  deed,  and  provides  for  a  conveyance 
of  the  same  free  from  incumbrances,  and  a  deed  is  tendered 
describing  the  land  precisely  as  described  in  the  deed  referred  to, 
the  purchaser  cannot  reject  such  deed  on  the  ground  that  there  is  a 
private  right  of  way  over  the  premises.63 

A  party  wall  standing  equally  upon  the  land  of  both  parties,  is 
not,  it  seems,  such  an  incumbrance  as  will  justify  the  purchaser 
in  rejecting  the  title;64  especially  if  he  buys  with  knowledge  of 
the  existence  of  the  party  wall.65  But  it  was  held  that  he  was 
entitled  to  rescind  in  a  case  in  which  the  wall  stood  wholly  upon 
the  premises  sold,  and  there  was  a  perpetual  covenant  running 

80  Mead  v.  Martens.  47  X.  Y.  Supp.  299;  21  App.  Div.  134. 

"Archer  v.  Archer,  84  Hun   (X.  Y.),  297;   32  X.  Y.  Supp.  410. 

^Topliff  v.  Atlanta  Land  &  Imp.  Co.,  66  Fed.  Rep.  853;  13  U.  S.  App.  733. 

«  Heppenstall  v.  O'Donnell,  165  Pa.  St.  438;  30  Atl.  Rep.  1003. 

"Hendricks  v.  Stark,  37  X.  Y.  106.  (Compare  Corn  v.  Bass,  59  X.  Y. 
Supp.  315;  43  App.  Div.  53.)  Levy  v.  Hill,  75  X.  Y.  Supp.  19;  70  App. 
Div.  95;  Scannel  v.  Soda  Fountain  Co.,  161  Mo.  606;  61  S.  W.  Rep.  889; 
unless  it  depreciates  the  value  of  the  property.  Cushman  v.  Bean,  226  Mass. 
198;  115  X.  E.  574. 

^Driscoll  v.  Carroll,  111  X.  Y.  Supp.  246;  127  App.  Div.  265. 

108 


838  MAKKETA1JLE    TITLE    To    KEAL    ESTATE. 

with  the  land  which  bound  the  owner  to  share  equally  with  the 
adjoining  owner  the  expense  of  repairing  or  rebuilding  the  wall, 
and  required  that  when  rebuilt  the  wall  should  be  of  the  same 
size  and  like  materials.66 

The  existence  of  a  party  wall  covenant  is,  of  course,  no  objec- 
tion to  the  title  if  the  covenant  be  so  drawn  as  not  to  run  with 
the  land  ;  as  where  it  was  specifically  provided  that  the  covenant 
should  remain  in  force  so  long  as  the  parties,  or  their  legal  repre- 
sentatives, should  hold  the  title.67 

We  have  seen  that  the  purchaser  cannot  refuse  to  complete  the 
contract  if  he  was  informed  of  the  existence  of  the  incumbrance 
when  he  purchased.68  But  if  the  vendor  represent  that  there  are 
incumbrances  to  a  certain  extent  only  on  the  property,  and  other 
incumbrances  appear,  the  purchaser  cannot  be  compelled  to  go 
on  with  the  contract.69  Or  if  the  purchaser  protects  himself  by 
a  positive  provision  in  the  contract  that  there  shall  be  no  incum- 
brance on  the  title,  the  fact  that  he  knew  of  an  incumbrance,  such 
as  an  unopened  street  across  the  property  at  the  time  of  the 
contract,  is  immaterial  and  he  cannot  be  compelled  to  pay  the 
purchase  money.70 

Incumbrances  affecting  the  physical  condition  of  the  property, 
such  as  a  public  highway,  open  to  the  observation  of  the  purchaser 


v.  Van  Tassel,  137  X.  Y.  297;  33  X.  E.  Rep.  314,  distinguishing 
v.  Stark,  supra.  (Compare  Schaefer  v.  Bliinu'iithitl.  101)  X.  Y. 
221:  62  X.  E.  Rep.  175.)  The  purchaser  may  insist  that  a  mortpapee 
of  the  contiguous  lot  shall  consent  to  a  proposed  cancellation  of  a  party- 
wall  agreement.  Maupai  v.  Jacobs.  12.4  X.  Y.  Supp.  220;  130  App.  Div.  524. 

"Kahn  v.  Mount.  61  X.  Y.  Supp.  358;  46  App.  Div.  84;  Hayden  v. 
I'inchot,  158  X.  Y.  Supp.  219;  172  App.  Div.  102. 

•Ante,  |  85. 

•Park  v.  Johnson.  7  Allen  (MaKs.),  378.  In  Blanck  v.  Sadlier,  153  N.  Y. 
551  ;  47  X.  E.  Rep.  520.  it  was  hrliJ  that  one  who  purchased  at  an  auction 
sale  in  H94,  subject  to  a  mortpape,  was  not  entitled  to  rescind  and  recover 
his  deposit  on  the  ground  that  the  condition*  of  sale  failed  to  state  that 
the  mortpapp  was  payable  in  pold  iiiHtead  of  currency,  there  brinp  no  proba- 
bility that  the  United  States  would  durinp  the  life  of  the  mortpape  (three 
yearn)  refuse  to  redeem  it*  obligations  in  gold.  See,  also,  Frank  v.  Frank, 
108  X.  Y.  Supp.  549;  1*23  App.  Div.  802. 

w  Evans  v.  Taylor,  177  Pa.  2*6;  35  All.  635;  Bacot  v.  Fessendra.  119  X,  Y. 
Supp.  404;  64  Misc.  Rc-p.  422;  Erikscn  v.  Whitiwcarvpr.  57  Colo.  409;  342 
Pac.  413;  right  of  way  for  irrigation  ditch  across  the  premises. 


OF    DOUBTFUL    TITLES.  859 

and  presumably  considered  by  him  in  estimating  the  value  of  the 
property,  constitute  no  valid  objection  to  the  title.71 

§  306.  (2)  Incumbrances  which  make  the  title  doubtful. 
If  there  be  serious  doubts  as  to  whether  an  incumbrance  upon  the 
premises,  apparent  from  the  records,  has  not  been  satisfied,  or  if 
there  be  an  issue  or  dispute  between  the  vendor  and  the  incum- 
brancer  as  to  that  fact,  the  purchaser  will  not  be  required  to  take 
a  title  so  burdened.72  He  will  not  be  compelled  to  buy  a  law  suit. 
Especially  does  this  rule  apply  where  the  doubts  about  the  dis- 
charge of  the  incumbrance  must  be  removed  by  parol  testimony, 
and  the  lapse  of  time  is  constantly  decreasing  the  means  for  that 
purpose.73  Neither  will  the  purchaser  be  compelled  to  complete 
the  contract  when  the  existence  of  the  incumbrance,  or  its  exten- 
sion to  the  purchased  premises,  is  a  doubtful  question  of  law  or 
fact.74  Nor  where  the  incumbrance  is  inchoate  and  undetermined 

"Ante,  p.  852.     Hornbeck  v.  Smith,  87  Oreg.  78;   168  Pac.  633. 

"Rife  v.  Lybarger,  49  Ohio  St.  429;  31  N.  E.  Rep.  768;  Foster  etc.  Co. 
v.  Sayles,  213  Mass.  3-19 ;  100  N.  E.  644.  In  Richards  v.  Mercer,  1  Leigh 
(Va.),  125,  a  purchaser  was  compelled  to  complete  the  contract,  though  there 
was  a  mortgage  on  the  premises,  and  nothing  but  "  strong  grounds "  for 
believing  that  it  had  been  satisfied.  In  Wesley  v.  Eels,  177  U.  S.  370;  Sup. 
Ct.  Rep.  the  vendor  claimed  that  a  purchase-money  mortgage  on  the  premises 
in  favor  of  the  State  of  South  Carolina  had  been  discharged,  under  the  laws 
of  that  state  by  a  tender  of  certain  "  revenue  bond-scrip  "  issued  by  the  state. 
The  state  courts  having  decided  that  the  issue  of  such  paper  by  the  state 
was  unlawful  the  Supreme  Court  held  that  the  purchaser  could  not  be  com- 
pelled to  take  the  title  with  the  burden  of  showing  the  error  of  that  decision 
in  future  litigation. 

"Moore  v.  Williams,  115  N.  Y.  586;  22  N.  E.  Rep.  233. 

74Dyker  Meadow  L.  &  I.  Co.  v.  Cook,  159  N.  Y.  6;  53  N.  E.  Rep.  690;  Wil- 
son v.  Bolen,  152  111.  iApp.  210;  Ailing  v.  Vanderstucken,  (Tex.  Civ.  App.) 
19*4  S*.  W.  443.  An  excellent  illustration  of  this  proposition  is  afforded  by 
the  well-considered  case  of  Moore  v.  Williams,  115  N.  Y.  586;  22  N".  E.  Rep. 
233;  23  Abb.  N".  Cas.  404.  There  the  vendor,  in  answer  to  the  objection  that 
£  certain  judgment  against  a  prior  owner  was  a  lien  upon  the  land,  attempted 
to  show  that  the  land,  at  the  time  of  the  judgment,  was  the  property  of  a 
firm  of  which  the  judgment  debtor  was  a  member,  and,  consequently,  was 
not  bound  by  the  judgment.  But  the  court  held  that  the  purchaser  could  not 
be  compelled  to  take  the  title  so  incurabered,  since  he  might  not  have  the 
means  of  showing  the  facts  respecting  the  judgment,  if  his  title  should  after- 
wards be  questioned  or  attacked.  In  Richmond  v.  Koenig,  43  Minn.  480; 
45  N.  W.  Rep.  1093,  the  objection  to  the  title  was  that  there  were  unsatisfied 
judgments  against  a  former  owner  of  the  land.  The  vendor  replied  that  the 


860  MARKETABLE    TITLE    TO    REAL    ESTATE. 

in  its  character,  e.  g.,  an  attachment  levied  upon  the  estate  of  the 
vendor  in  the  land.75  Nor  where  the  incumbrance,  a  mortgage, 
contains  unusual  covenants  or  restrictions  burdensome  on  the  pur- 
chaser.7' But  it  has  been  held  that  a  Us  pendens  without  evidence 
to  show  that  it  is  founded  upon  a  just  claim,  is  no  such  incum- 
brance as  will  justify  a  purchaser  in  refusing  to  perform  thi- 
contract.77  And  a  mortgage  duly  executed,  acknowledged  and 
recorded,  but  not  accepted  by  the  mortgagee,  and,  therefore,  of 
no  force  and  effect,  though  apparently  a  lien  upon  the  premises, 
is  no  ground  upon  which  a  purchaser  can  rescind  the  contract.78 
So,  also,  a  mortgage  invalid  because  executed  by  one  having  no 
authority,  creates  no  objection  to  the  title.79  After  a  judgment 
for  the  defendant,  on  the  issue  of  payment,  in  a  suit  to  recover 
the  amount  of  the  incumbrance  from  him  as  a  personal  liability, 
to  which  suit  all  persons  in  interest  were  parties,  the  incumbrance 
no  longer  presents  an  objection  to  the  title.80 

judgments  were  not  liens  because  the  land  was  the  homestead  of  the  former 
owner.  There  were  facts  in  evidence  which  made  it  doubtful  whether  -Midi 
owner  had  lost  his  right  of  homestead  by  leaving  the  State,  and  it  was  held 
that  the  purchaser  could  not  be  compelled  to  complete  the  contract.  A  judg- 
ment appearing  on  the  record  against  a  joint  defendant,  who  was  not  served 
with  process,  is  no  lien  on  his  land,  and  therefore  no  ground  of  objection  to 
his  title.  Wessel  v.  Cramer,  67  NT.  Y.  Supp.  425;  56  App.  Div.  30.  A  judg- 
ment is  also  no  ground  of  objection  to  his  title  if  the  time  during  which,  by 
statute,  it  i-  a  charge  or  lien  on  lands,  has  expired.  Wessel  v.  Cramer,  67 
X.  Y.  Supp.  425;  56  App.  Div.  30. 

"Linton  v.  Hichborn,  126  "Mass.  32;  Grames  v.  Timber  Co.,  215  Fed.  785. 
Attachment  will  not  avoid  the  sale  if  the  vendor  is  willing  to  permit  the 
purchaser  to  retain  enough  of  the  purchase  money  to  indemnify  him  against 
a  possible  judgment  against  the  former.  Borden  v.  Borden,  5  Mass.  67;  4 
Am.  Dec.  32. 

wElterman  v.  Hytnan,  102  N.  Y.  113;  84  N.  E.  937;  127  Am.  St.  Rep.  862. 

"Ante,  f§  124,  290.  Wilsey  v.  Dennis,  44  Barb.  (N.  Y.)  354.  Compare 
Earl  v.  Campbell.  14  How.  Pr.  (N.  Y.)  330.  Of  course,  an  attachment  pro- 
cured by  collusion  of  the  purchaser  is  no  ground  of  objection  to  the  title. 
Mrnwn  v.  Hollows,  4  Pick.  (Mass.)  179.  And  if  the  attachment  and  Us 
pendent  be  discharged  before  decree,  the  vendor  will  be  entitled  to  sporifi.- 
performance.  Daniel  v.  Smythe,  5  B.  Mon.  (Ky.)  347.  Haffey  v.  Lynch,  143 
N'.  V.  241;  38  N.  E.  Rep.  298. 

"Wilsi-y  v.  Donni*.  44  Barb.    (NT.  Y.)    354. 

"Glaswook  v.  Robinson,  21  Miss.  85. 

"Young  v.  Hi-rvt-y,  207  Pa.  396;  56  All.  946. 


OF    DOUBTFUL    TITLES.  861 

In  a  case  in  which  the  grantee  reconveyed  the  premises  by  way 
of  mortgage  to  the  grantor,  and  afterwards  reconveyed  them  by 
absolute  deed  to  the  grantor,  it  was  held  that  the  latter  conveyance 
extinguished  the  mortgage,  the  legal  and  equitable  estate  having 
become  united  in  one  and  the  same  person ;  the  lesser,  the  equitable 
estate,  having  become  merged  in  the  greater,  the  legal  estate. 
Hence,  a  subsequent  purchaser  of  the  legal  estate  could  not  reject 
the  title  on  the  ground  that  the  mortgage  was  an  outstanding  lien 
on  the  property.81 

The  rule  that  a  purchaser  cannot  be  compelled  to  take  a  doubt- 
ful title  applies  as  well  where  the  doubt  is  as  to  the  existence  and 
enforceability  of  an  incumbrance  upon  the  premises  as  where  the 
doubt  is  as  to  existence  of  some  fact,  or  the  construction  of  some 
instrument  upon  which  the  title  is  founded.82  Thus,  where  the 
purchaser  objected  that  the  premises  were  subject  to  a  railroad 
mortgage,  and  the  vendor  insisted  that  the  railroad  company  had 
no  power  to  execute  the  mortgage,  and  that  the  mortgage  was 
further  invalid  in  that  it  contained  no  particular  description  of 
the  property  which  it  was  intended  to  cover,  the  court  held  the 
purchaser's  objection  good,  without  deciding  whether  the  mortgage 
was  or  was  not  valid.83  So,  also,  where  the  question  was  whether 

81Krekeler  v.  Aulbach,  64  N.  Y.  Supp.  908;  51  App.  D5v.  591. 

82  In  Garnett  v.  Macon,  6  Call  (Va.),  308,  369,  it  was  claimed  that  the 
rule  that  a  purchaser  could  not  be  compelled  to  take  a  doubtful  title  did  not 
apply  where  the  objection  was  that  the  estate  was  incumbered.  But 
MARSHALL,  Ch.  J.,  said:  "This  allegation  is  not,  I  think,  entirely  correct. 
The  objection  is  not  entirely  confined  to  cases  of  doubtful  title.  It  applies 
to  incurfibrancesi  of  every  description  which  may  in  any  manner  embarrass 
the  purchaser  in  the  full  and  quiet  enjoyment  of  his  purchase.  In  Rose  v. 
Calland,  5  Ves.  189,  the  property  was  stated  to  be  free  of  hay  tithe,  and 
there  was  much  reason  to  believe  that  the  statement  was  correct.  But  the 
point  being  doubtful,  the  bill  of  the  vendor  praying  a  specific  performance 
was  dismissed.  There  is  certainly  a  difference  between  a  defined  and  ad- 
mitted charge,  to  which  the  purchase  money  may  by  consent  be  applied  when 
it  becomes  due,  and  a  contested  charge  which  will  involve  the  purchaser  in 
an  intricate  and  tedious  law  suit  of  uncertain  duration."  See,  also,  Christian 
v.  Cabell,  22  Gratt.  (Va.)  82;  Hendricks  v.  Gillespie,  25  Gratt.  (Va.)  181; 
Kenny  v.  Hoffman,  31  Gratt.  (Va.)  442;  Griffin  v.  Cunningham,  19  Gratt. 
(Va.)  571. 

S3Xicol  v.  Carr,  35  Pa.  St.  381.  Titles  held  not  marketable.  Whether 
certain  building  restrictions  were  intended  as  a  condition  defeating  the 


862  MARKETABLE  TITLE  TO  KEAL   ESTATE. 

the  reservation  of  a  railroad  right  of  way  across  the  premises  was 
valid.84 

The  obligation  of  the  purchaser  to  see  to  the  application  of  the 
purchase  money  in  certain  cases  of  deh'ned  and  limited  trusts,  is, 
strictly  speaking,  perhaps  not  an  incumbrance  upon  the  estate, 
but  it  is  a  burden  upon  the  purchaser  which,  it  seems,  will  excuse 
him  from  performing;  the  contract.  The  estate  is  obviously  of 
less  value  to  him  if  he  must  incur  the  expense  and  responsibility 
of  seeing  that  the  purchase  money  is  reinvested  upon  the  same 
trusts  as  those  under  which  he  purchased.  It  has  even  been  held 
that  he  may  refuse  to  complete  the  contract  if  the  case  be  one  in 
which  the  duty  of  the  purchaser  to  see  to  the  application  of  the 
purchase  money  is  a  doubtful  question  dependent  upon  the  con- 
struction of  the  instrument  creating  the  trust.85 

In  theory  a  pecuniary  incumbrance  which  is  less  in  amount 
than  the  purchase  money  is,  as  a  general  rule,  no  objection  to  the 

estate,  or  merely  as  a  proviso  for  the  benefit  of  adjacent  lots:  Jeffries  v. 
Jeffries,  117  Mass.  1S4.  Whether  a  certain  $4,000.000  railroad  mortgage  was 
a  valid  lien  on  the  purchased  premises.  Xieol  v.  ("arr,  35  Pa.  St.  381.  Titles 
Itrlil  innrkrtnble.  Whether  certain  lots,  in  a  subdivision  of  a  lot  originally 
charged  with  the  maintenance  of  a  fence  along  a  railroad,  were  burdened 
with  such  charge:  Walsh  v.  Barton,  24  Ohio  St.  2S.  Whether  a  release  of  a 
certain  building  restriction  had  ever  been  executed:  Post  v.  Brenheimer,  31 
Hun  (X.  Y.),  247.  Whether  a  vendor  is  bound  to  produce  a  release  of  legacies 
charged  on  the  purchased  premises,  the  legacies  having  been  in  fact  paid: 
Cassell  v.  Cooke,  8  S.  &  R.  (Pa.)  268,  2J»2;  11  Am.  Dec.  610. 

"Bruegger  v.  Carter,  29  X.  D.  575;   151  N.  W.  34. 

"St.  Mary's  Church  v.  Stockton,  8  X.  J.  Eq.  520,  531.  A  charter  under 
which  the  vendors  (certain  church  officials)  held  in  this  case,  contained  a 
proviso  that  in  case  of  a  sale  of  the  premises  granted,  lands  of  the  full 
value  of  those  sold  should  with  the  proceeds  of  the  sale  he  purchased  and 
settled  for  the  uses  declared  in  the  charter.  The  court  observed:  "Without 
examining  particularly  the  doctrine  as  to  the  duty  of  purchasers  to  see  to 
the  application  of  the  purchase  money,  and  the  distinctions  which  prevail 
on  this  subject,  it  i-  sufficient  to  say  that  this  proviso  might  be  a  serious 
embarrassment  to  a  purchaser.  He  would  be  subjected  to  the  issue  of  the 
c|iicMtinn  whether  the  purpose  to  which  the  money  arising  from  the  sale  is 
required  to  be  applied  be  of  a  definite  and  limited  or  of  a  general  and 
unlimited  nature.  If  the  first,  he  would,  an  it  seems  from  the  authorities,  l-i- 
bound  to  nee  that  the  purchase  money  was  applied  to  the  purpose  mentioned 
in  the  proviso.  Story'a  Eq.  Jur.  f  1127."  Oarnett  v.  Macon,  6  Call  (Va.l, 
MS, 


OF    DOUBTFUL    TITLES.  863 

title,  because  the  purchase  money  may  be  applied  to  the  discharge 
of  the  incumbrance  and  the  incumlbrancer  be  compelled  to  join 
in  the  conveyance  or  to  execute  a  release.86  But  it  is  obvious  that 
circumstances  might  exist  which  would  make  the  incumbrance  a 
serious  objection  to  specific  performance  by  the  purchaser.  The 
property  may  have  been  purchased  with  a  view  to  speedy  resale  as 
a  speculation,  and  difficulty  may  be  encountered  in  finding  a  per- 
son competent  to  release  the  incumbrance,  particularly  if  created 
by  a  remote  owner  of  the  property,  or  if  passed  by  assignment  to 
a  third  party.  In  such  a  case  it  is  apprehended  that  time  would 
be  deemed  of  the  essence  of  the  contract  and  the  purchaser  be 
relieved  from  the  bargain.  We  have  seen  that  in  a  case  in  which 
the  facts  entitle  the  purchaser  to  a  rescission  of  the  contract  on 
the  ground  that  the  estate  is  incumbered,  the  fact  that  the  incum- 
brance is  less  in  amount  than  the  unpaid  purchase  money  will  not 
affect  the  right  to  rescind  if  the  purchase  money  be  not  yet  due, 
especially  if  the  vendor  be  insolvent,  and  there  be  danger  that 
the  incumbrance  will  be  enforced,  and  that  the  purchaser  will  lose 
the  property.87  The  fact  that  the  unpaid  purchase  money  may 
be  applied  to  the  discharge  of  an  incumbrance  does  not  affect  the 
purchaser's  right  to  rescind,  if  the  vendor  fraudulently  concealed 
the  existence  of  the  incumbrance.88 

The  extreme  improbability  that  a  valid  and  subsisting  incum- 
brance upon  the  premises  will  ever  be  enforced  renders  the  title 
none  the  less  liable  to  objection.  When  once  it  is  ascertained  that 
the  incumbrance  exists,  specific  performance  by  the  purchaser  will 
not  be  enforced  on  the  ground  that  it  is  doubtful  whether  the 
incumbrance  will  ever  be  foreclosed.89 

84  Ante,  §§  245,  305. 

87  Ante,  ch.  24,  §  246.     Peak  v.  Gore,  94  Ky.  533. 

88  Crawford  v.  Keebler,  5  Lea   (Tenn.),  547.     Peak  v.  Gore,  94  Ky.  533. 

89  Seaman  v.  Hicks,  8  Paige   (N.  Y.),  665;  Hendricks  v.  Gillespie,  25  Grat. 
(Va.)    181,  200;  Butler  v.  O'Hear,  1  Des.  Eq.   (S.  C.)    382;   1  Am.  Dec.  671. 
If  any  person  has   an  interest  in   or  claim  upon  the  estate  which  he  may 
enforce,   a  purchaser  cannot  be   compelled  to   take   the  estate,   however   im- 
probable it  may  be   that  the  right  will  be  exercised.      1   Sugd.  Vend.    (8th 
Am.  ed.)    590;  Drew  v.  Corporation,  etc.,  9  Ves.  368,  where  the  vendor  wa<3 
entitled  to  an  absolute  term  of  4,000  years  in  the  estate,   and  also  to  a 
mortgage  of  the  reversion,  which  had  been  forfeited  but  not  foreclosed.     In 


864  MARKETABLE    TITLE    TO    REAL    ESTATE. 

§  307.    Apparently  unsatisfied  incumbrances.      It  seems  that 
incumbrances  upon  the  purchased  premises  which  do  not  appear 

Brooklyn  Park  Com.  v.  Armstrong,  45  N.  Y.  234;  6  Am.  Rep.  70,  the  de- 
fendant purchased  certain  lands  which  the  plaintiffs,  a  park  commission,  held 
for  public  purposes;  but  were  authorized  to  sell  by  act  of  the  legislature, 
the  fund  BO  realized  to  be  applied  to  the  redemption  of  bonds  issued  to  obtain 
funds  wherewith  to  acquire  such  lands,  which  bonds  were  made  a  lien  on 
the  lands  in  question.  One  of  the  objections  to  the  title  was  the  existence 
of  these  bonds  as  a  lien  on  the  land.  The  objection  was  deemed  sufficient, 
the  court  saying:  "  It  is  true  that  the  danger  to  the  purchaser,  to  all  seem- 
ing, is  very  slight  and  very  remote,  that  the  premises  for  which  he  has  con- 
tracted will  ever  be  called  upon  to  contribute  to  the  payment  of  these  bonds. 
The  probabilities  are,  that  with  the  wealth  concentrated  within  the  corporate 
bounds  of  the  city  of  Brooklyn,  and  with  the  means  at  its  command,  it  will 
always  find  the  ordinary  means  of  raising  money  by  taxation  sufficient  for  the 
purpose  of  payment  of  interest,  and  the  method  of  a  new  loan  at  any  time 
available  to  pay  the  principal.  But  yet  there  is  the  possibility.  The  debt 
is  an  incumbrance  upon  the  land,  and  does  affect  that  for  which  the  appel- 
lant bargained.  This  is  a  legal  certainty.  However  strong  the  probability 
that  the  debt  will  never  be  exacted  from  the  land,  it  cannot  be  asserted  to 
be  more  than  a  probability.  While  it  exists  there  is,  as  matter  of  law,  and 
matter  of  fact,  the  possibility  that  the  creditor  may  enforce  his  lien.  And 
this  hampers  the  estate.  It  may  be  conceded  that  a  title  free  from  reason- 
able doubt  may  be  forced  upon  an  unwilling  purchaser.  Thus,  in  a  case 
in  which  it  appeared  that  there  was  in  a  prior  deed,  a  reservation  of  mines, 
specific  performance  was  decreed,  not  because  there  being  mines  it  was  not 
probable  that  the  right  reserved  would  ever  be  exercised,  but  because:  First. 
The  court  saw  upon  examination  the  probability  was  great  that  there  were  no 
mines  for  the  right  reserved  to  act  upon.  Second.  That  all  legal  right  to 
exercise  it  had  ceased.  But  this  is  a  doubt  whether  there  exists  in  law  or  in 
fact,  any  defect  in  the  title.  When  it  is  ascertained  that  there  is  an  existing 
defect  in  the  title,  the  purchaser  will  not  be  compelled  to  perform  on  the 
allegation  that  it  is  doubtful  whether  the  defect  will  ever  incommode  him." 
In  Rife  v.  Lybarger,  49  Ohio  St.  429;  31  N.  E.  Rep.  768,  the  only  cloud  upon 
the  title  was  an  uncanoeled  mortgage  made  to  secure  certain  notes  which  had 
become  barred*  by  statute.  The  mortgagee  was  dead,  his  estate  solvent,  and 
his  widow  and  heirs  had  quitclaimed  any  interest  which  they  might  have  to 
the  vendor.  The  purchaser  was  compelled  to  take  the  title.  The  court  by 
BBADBUBT,  J.,  lucidly  said:  "If  the  title  is  such  that  it  ought  to  satisfy  a 
man  of  ordinary  prudence  it  is  sufficient.  In  the  case  under  consideration, 
the  title  was  perfect,  but  was  subject  to  a  mere  possibility  that  a  claim  might 
be  asserted  on  an  old  unranoeled  mortgage  against  which  full  indemnity  was 
tendered.  Under  such  circumstances  the  objection  presents  all  the  features 
of  an  excuse  for  the  non-performance  of  a  contract  no  longer  desirable.  It 
is  said  that  the  vendees  bought  the  land  with  a  view  to  its  subdivision  into 
town  lots  and  its  immediate  resale,  which  purpooe  was  well  known  to  the 
vendor,  and  that  by  reason  of  this  incumbrance,  they  lost  a  sale  at  a  con- 


OF    DOUBTFUL    TITLES.  865 

by  the  record  to  have  been  satisfied  will  render  the  title  doubtful 
or  unmarketable,90  even  though  the  vendor  be  able  to  show  by  parol 
testimony  that  they  have  been  satisfied.91  They  constitute  a  cloud 
upon  the  title,  which  the  vendor  should  remove  before  calling 
upon  the  purchaser  to  complete  the  contract.  The  means  of  show- 
ing the  satisfaction  of  the  incumbrance  may  not  be  within  the 
purchaser's  reach,  if  an  attempt  to  enforce  the  incumbrance  should 
be  made,  or  if  the  existence  thereof  should  be  urged  as  an  objec- 
tion to  his  title.  In  certain  of  the  States  there  are  statutory- 
provisions  for  summary  proceedings  by  which  the  owner  of  an 
estate  may  compel  an  incumbrancer  to  enter  the  fact  of  satis- 
faction of  the  incum'brance  on  the  record.92  Where  the  vendor  is 
in  possession  of  evidence  which  would  entitle  him  to  such  an 
entry  he  should  procure  it  to  be  made.  If  he  have  not  such  evi- 
dence, the  purchaser  should  be  relieved  from  the  contract.  If, 
however,  the  purchase  money  remains  unpaid  so  that  it  can  be 
applied  to  any  incumbrance  upon  the  premises,  or  if  the  vendor 
can  show  that  he  is  able  to  satisfy  the  incumbrance,  it  has  been 
held  that  the  fact  that  the  incumbrance  appears  unsatisfied  of 
record  will  not  entitle  the  purchaser  to  rescind.93  It  seems  that  if 

siderable  advance  on  the  price  they  were  to  pay.  This  may  be  true,  but  the 
vendor  is  no  more  to  be  affected  by  the  captious  objections  of  possible  pur- 
chasers of  the  vendees,  than  by  similar  objections  on  the  part  of  the  vendees 
themselves.  Whether  the  sale  should  be  of  the  entire  purchase  as  a  whole 
or  in  parcels  upon  its  subdivision  into  building  lots,  a  perfect  title  free  from 
any  reasonable  apprehension  of  danger  from  this  possible  lien,  could  be 
made  to  contemplating  purchasers. 

""Mahoney  v.  'Allen,  42  N".  Y.  Supp.  11;  18  Misc.  134;  Agens  v.  Koch,  74 
ST.  J.  Eq.  528 ;  70  Atl.  348. 

91  Sachs  v.  Owings,  121  Va.  162;  92  S.  E.  997;  Hoyt  v.  Tuxbury,  70  111. 
331,  provided  the  objection  be  made  'by  the  purchaser  in  good  faith.  Hendricks 
v.  Gillespie,  25  Gratt.  (Va.)  181,  semble.  A  purchaser  at  a  judicial  sale  was 
relieved  from  his  bid  where  an  entry  of  satisfaction  of  a  prior  lien  on  the 
premises  was  found  to  be  a  forgery.  Charleston  v.  Blohme,  15  S.  C.  124 ; 
40  Am.  Rep.  690.  In  the  following  cases  there  are  decisions  or  dicta  that  the 
purchaser  can  be  compelled  to  complete  the  contract,  if  the  vendor  can  show 
that  apparent  incumbrances  on  the  premises  have  been  satisfied.  Fagan  v. 
Davidson,  2  Duer  (N.  Y.),  153;  Pangborn  v.  Miles,  10  Abb.  N.  C.  (N.  Y.)  42; 
Espy  v.  Anderson,  14  Pa.  St.  308. 

MAs  in  Virginia,  Code  1887,  §  3564. 

w  Espy  v.  Anderson,  14  Pa.  St.  308. 

109 


86C  MARKETABLE    TITLE    TO    REAL    ESTATE. 

a  suit  in  equity  by  the  vendor  be  necessary  to  remove  a  cloud  upon 
the  title  caused  by  an  apparent  incumbrance  of  record,  the  pur- 
chaser cannot  be  compelled  to  await  the  issue  of  the  suit,94  and 
may  refuse  to  complete  the  contract.  But  if  the  vendor  can, 
within  a  reasonable  time,  remove  the  objection  by  procuring 
releases,  or  appropriate  entries  upon  the  records,  showing  satis- 
faction of  the  incumbrance,  no  reason  is  perceived  why  he  should 
not  be  permitted  to  do  so,  upon  the  general  principle  that  the 
vendor  may  perfect  the  title  wherever  time  is  not  material. 

In  New  York  it  has  been  held  that  the  existence  of  a  mortgage 
on  the  premises,  although  more  than  thirty  years  old,  renders  the 
title  doubtful,  as  the  mortgagee  may  have  in  his  possession  a 
promise  to  pay,  or  other  facts  may  exist  which  would  prolong  the 
life  of  the  mortgage.95  In  Maryland,  in  a  case  in  which  the  right 
to  foreclose  had  been  barred  for  fifteen  years  over  the  statutory 
period  of  twenty  years,  and  in  which  there  had  been  no  recog- 
nition of  the  mortgage  as  a  subsisting  lien  during  that  time,  it 
was  held  that  the  purchaser  could  not  refuse  to  take  the  title.96 
The  fact  that  an  incumbrance  upon  the  premises  appears  unsatis- 
fied of  record,  will  not  justify  the  purchaser  in  his  refusal  to 
complete  the  contract,  when  the  incumbrance  is  of  such  long  stand- 
ing as  to  raise  a  presumption  that  it  has  been  paid,97  or  if  the 

••Kenny  v.  Hoffman,  31  Vn.  442;  Bartle  v.  Curtis,  68  Iowa,  202,  20  X.  W. 
Rep.  73. 

"Pangborn  v.  Miles,  10  Abb.  N.  Ca».  (N.  Y.)  42;  Austin  v.  Barnura,  52 
Minn.  136,  53  X.  W.  Rep.  1132. 

••  Baldwin  v.  Trimble,  85  Md.  396,  36  L.  R.  A.  489,  37  Atl.  176;  Goldman 
v.  Miles.  129  Md.  180,  98  Atl.  531.  Compare  Justice  v.  Button,  89  Neb.  307. 
131  X.  W.  736,  38  L.  R.  A.  (X.  S.)  1,  where  it  was  held  that  an  unreleased 
and  apparently  unsatisfied  trust  deed  on  the  property,  though  seemingly 
barred  by  the  statute  of  limitations  for  several  years,  made  the  title  un- 
marketable. 

"Katx  v.  Kaiser,  154  N.  Y.  296,  48  N.  E.  Rep.  532;  Paget  v.  Melchoir, 
5S  X.  Y.  Supp.  913.  42  App.  Div.  76;  X.  Y.  Life  Ins.  Co.  v.  Lord,  40  C.  C.  A. 
585,  100  Fed.  Rep.  17;  Belmont  v.  O'Brien,  2  Kern.  (X.  Y.)  394,  where 
there  were  two  mortgages  on  the  premise*,  one  sixty-six  and  the  other  eighty- 
four  years  old;  Kip  v.  Hirsh,  103  X.  Y.  565,  9  X.  E.  Rep.  317;  Pangborn  v. 
Miles,  10  Abb.  N.  C.  (N.  Y.)  42;  Forsyth  v.  Leslie,  77  X.  Y.  Supp.  828,  74 
App.  Div.  517;  Barber  v.  Oery,  64  X.  J.  Eq.  263,  53  Atl.  483;  Morgan  v. 
Roott,  26  Pa.  St.  51,  where  the  mortgage  was  fifty  years  old  and  was  made 
to  secure  a  life  annuity  to  a  person  many  years  dead  at  the  time  of  the  sale. 


OF    DOUBTFUL    TITLES.  867 

circumstances  of  the  case  show  that  the  incumbrance  is  no  longer 
enforceable,  as  in  the  case  of  a  mortgage  to  secure  the  support  of 
a  person  who  had  been  many  years  dead  when  the  contract  of  sale 
was  made.98  Where  a  statute  provided  that  a  trust  for.  the  benefit 
of  creditors  should  be  deemed  discharged  after  the  expiration'  of 
twenty-five  years  from  the  time  of  its  creation,  it  was  held  that 
the  existence  of  the  trust  constituted  no  Objection  to  the  title  after 
the  lapse  of  that  time."  But  where  it  is  an  open  question  whether 
under  the  law  of  the  place,  a  mortgage  is  embraced  by  the  Statute 
of  Limitations,  the  purchaser  cannot  be  required  to  take  the  title.1 
In-  regard  to  releases,  or  marginal  entries  upon  the  public 
records,  showing  the  satisfaction  of  incumbrances,  it  is  to  be 
observed  that  an  authority  to  make  such  entry,  or  to  execute  such 
release,  must  appear  from  the  records,  and  if  the  abstract  fails  to 
show  such  authority,  the  title  will  be  held  unmarketable.2  Thus, 

In-  Hayes  v.  Nburse,  8  N".  Y.  State  Rep.  397,  a  Us  pendens  fifty  years  old  was 
held  to  be  sufficient  objection  to  the  title;  satisfaction  of  a  claim  to  the 
premises  cannot  be  presumed,  so  long  as  a  suit  asserting  the  claim  is  pending. 
Abbott  v.  Fellows,  116  Me.  173$  100  Atl.  657;  Greenfield  v.  Mills,  107  N.  Y. 
Supp.  705,  123  App.  Div.  43;  Barsky  v.  Posey,  (Del.  Ch.)  98  Atl.  298; 
Strickland  v.  Duffie,  (Tex.  Civ.  App.)  191  S.  W.  622.  The  appearance  of 
the  property  on  a  delinquent  tax  list  forty  years  before  the  contract  of  sale, 
furnished  no  ground  for  rejecting  the  title  —  the  property  not  having  been 
forfeited  to  the  State,  and  the  subsequent  taxes  having  been,  in  the  meanwhile, 
continuously  assessed  to  and  paid  by  the  vendor.  Henrjs  v.  Barker,  130  La. 
431,  58  So.  138. 

"Shanahan  v.  Chandler,  218  Mass.  441,  105  1ST.  E.  1002. 

"Green  v.  Hernz,  35  N.  Y.  Supp.  943;  Kip  v.  Hirsh,  103  N.  Y.  565,  9  N. 
E.  Rep.  317,  where  held  also  that  such  statute  was  retrospective  in  its 
operation,  and  applied  to  trusts  in  existence  before  the  passage  of  the  act. 
Disapproving  'MfcCahill  v.  Hamilton,  20  Hun  (N.  Y.),  388.  Where  a  vendor 
had  been  for  fifteen  years  in  possession  under  an  assignment  which  was  on  its 
face  void  as  to  creditors,  but  no  creditors  had  ever  sought  to  impeach  it, 
and  thirty-three  years  had  elapsed  since  the  assignment  was  made,  the  title 
of  the  vendor  was  held  marketable.  Morrison  v.  Brand,  5  Daly  (N.  Y.),  40. 

1  Godfrey  v.  Rosenthal,  17  S.  Dak.  452,  97  N.  W.  365. 

2Warvelle  Abst.  344.  Ethington  v.  Rigg,  173  Ky.  355,  191  S.  W.  98.  If 
the  mortgage  be  merged  in  a  subsequent  acquisition  of  the  title  by  the  vendor 
or  his  predecessors  in  title,  it  is  no  objection  to  the  title  that  a  release  of 
the  mortgage,  which  had  been  recorded,  does  not  appear  of  record.  Summy 
v.  Ramsey,  53  Wash.  93,  101  Pac.  506. 


868  MARKETABLE    TITLE    To    REAL    ESTATE. 

if  the  release  is  by  an  attorney  in  fact,  assignee  or  personal  repre- 
sentative, and  the  power  of  attorney,  assignment  or  qualification 
of  the  personal  representative  has  been  or  may  be  made  a  matter 
of  public  record,  the  abstract  of  title  must  show  such  power 
assignment  or  qualification  as  the  case  may  be,  or  the  purchaser 
will  be  justified  in  rejecting  the  title,  if  the  contract  provides  that 
the  abstract  shall  show  a  good  title  of  record.3  In  a  case  in  which 
a  county  auditor  released  a  mortgage  upon  school  lands,  and  there 
was  nothing  to  show  actual  satisfaction  of  the  mortgage,  it  was 
held-  that  the  purchaser  might  reject  a  conveyance,  the  release 
being  prima  facie  unauthorized  and  void.4 

§  307-a.  Encroachments  and  deficiencies.  Encroachments. 
A  fmitful  source  of  objections  to  the  title  to  city  property  is  that 
the  buildings  or  structures  on  the  property  encroach  upon  the 
lands  of  adjoining  proprietors.  As  a  general  rule  in  such  cases 
the  purchaser  ig  entitled  to  a  rescission  of  the  contract  and  a 
return  of  his  deposit,  on  the  ground  that  the  title  is  unmarketable.5 
Thus,  he  cannot  be  compelled  to  accept  title  to  a  city  lot  and  build- 
ing thereon  if  an  exterior  wall  of  the  building  rests  entirely  on 
the  lot  of  an  adjoining  proprietor,  and  belongs  exclusively  to  such 
proprietor,  by  whose  permission,  or  with  whose  acquiescence,  the 
beams  of  the  adjoining  building  are  inserted  in  such  wall,  no  legal 


v.  Douthett,  40  Kana.  689,  20  Pao.  Rep.  493,  reversing  39  Kans. 
316;  Durham  v.  Hadley,  47  Kans.  73,  27  Par.  Rep.  105.  Want  of  satisfaction 
of  a  mortgage  on  the  record  is  no  objection  to  the  title,  where  the  property 
had  been  reoonveyed  to  the  mortgagee  in  payment  of  the  mortgage  debt. 
Clody  v.  Southard,  109  N.  Y.  Supp.  411. 

4Conley  v.  Dibber,  91  Ind.  413. 

•McPherson  v.  Schade,  149  N.  Y.  16,  43  N.  E.  527;  Heller  v.  Cohen,  154 
N.  Y.  299,  48  N.  E.  527;  Snow  v.  Monk,  80  N.  Y.  Supp.  719,  81  App.  Div.  206; 
Keim  v.  Sax-hs,  92  N.  Y.  Supp.  107,  102  App.  Div.  44;  Bergmann  v.  Klein, 
89  X.  Y.  Supp.  624,  97  App.  Div.  15.  Reynolds  v.  Wynne.  105  N.  Y.  Supp. 
849.  121  App.  Div.  272;  Kaplan  v.  Bergmann,  107  N.  Y.  Supp.  423,  122  App. 
Div.  876;  Heyman  v.  Steich.  114  N.  Y.  Supp.  603;  Meadows  v.  Michel.  120 
N.  Y.  Supp.  319.  135  App.  Div.  213,  S.  C.  130  X.  Y.  Supp.  57.  144  App.  Div. 
927;  Walter  v.  Mitchell,  6  Cal.  App.  410,  92  Pac.  315.  The  extent  of  the 
injury  to  the  adjoining  premises  is  immaterial.  Snow  v.  Monk.  80  X.  Y. 
Supp.  719,  81  App.  Div.  206.  In  Kppig  v.  C.ruhn.  159  X.  Y.  Supp.  549.  176 
App.  Div.  787,  it  wax  held  that,  in  equity,  the  vendor  would  be  entitled  to  a 
reasonable  time  in  which  to  remove  the  objection  to  the  title. 


OF    DOUBTFUL    TITLES.  869 

right  to  the  use  of  the  wall  being  shown.6  But  insignificant 
and  immaterial  encroachments  upon  adjoining  property  will  not 
entitle  the  purchaser  to  rescind.7  No  rule  can  be  laid  down  that 
one  or  two  inches  of  encroachment  will  justify  a  rescission  of  the 
contract.  Each  case  must  be  determined  upon  its  peculiar  facts. 
The  evidence  must  establish  a  reasonable  certainty  that  injury  to 
the  purchaser  will  follow;  that  he  will  be  prevented  from  using 
the  buildings  in  the  condition  which  they  were  in  at  the  time 
of  the  purchase.8 

The  encroachment  will  not  entitle  the  purchaser  to  relief  where 
it  has  existed  for  such  length  of  time  and  under  such  circum- 
stances as  to  bar  any  claim  by  the  owner  of  the  premises  encroached 
upon.9  But  the  burden  will  be  upon  the  vendor  to  show  that  his 
title  has  been  ripened  by  adverse  possession  against  all  possible 
claimants,  including  persons  under  disabilities,  if  any.10  In  New 
York  it  is  provided  by  statute  that  suit  to  recover  land  encroached 
upon  by  the  wall  of  a  buiHing  must  be  brought  within  a  year  after 
the  erection  of  the  building.11  In  cases  to  which  that  act  applies, 

'Spero  v.  Shulz,  43  N.  Y.  gupp.  1016,  14  App.  Div.  423;  Neher  v.  Brunck- 
man,  55  N.  Y.  Supp.  107,  36  App.  Div.  625;  Hennig  v.  Smith,  151  N.  Y.  Supp. 
444. 

7  Merges  v.  Ringler,  54  N".  Y.  8upp.  280,  34  App.  Div.  415;  McDonald  v. 
Buch,  60  N.  Y.  Supp.  557,  29  Misc.  96.  The  encroachment  is  immaterial  if 
the  building  purchased  is  old,  dilapidated,  and  practically  worthless.  Weil 
v.  Radley,  52  N.  Y.  Supp.  39S.  The  encroachment  of  show  windows  seventeen 
inches  on  the  street  is  no  objection  to  the  title.  Keim  v.  Sachs,  92  N.  Y. 
Supp.  107,  102  App.  Div.  44;  Griffin  v.  Schneider,  105  N.  Y.  Supp.  1035; 
Ungrich  v.  Shuff,  105  N.  Y.  Supp.  1013,  119  App.  Div.  843;  Weintraub  v. 
Seigel,  118  N.  Y.  Supp.  261,  133  App.  Div.  677.  Slight  projections  of  cornices, 
sills,  lintels,  etc.,  over  the  street  line,  do  not  make  the  title  unmarketable. 
Leerburger  v.  Watson,  134  N.  Y.  Supp.  818,  75  Misc.  Rep.  3.  Compare  Acme 
Realty  Co.  v.  Schinasi,  (N.  Y.)  109  N.  E.  577. 

•  Merges  v.  Ringler,  54  N.  Y.  Supp.  280,  34  App.  Div.  415. 

•Weil  v.  Radley,  52  N.  Y.  Supp.  398;  Harrison  v.  Platt,  54  N.  Y.  Supp. 
842,  35  App.  Div.  533;  Van  Horn  v.  Stuyvesant,  100  N.  Y.  Supp.  547.  Where 
a  house  on  the  lot  had  stood  for  thirty  years  without  objection  to  an 
encroachment  of  two  or  three  inches  on  an  adjoining  lot,  it  was  held  that  the 
purchaser  could  not  refuse  the  title.  Katz  v.  Kaiser,  41  N".  Y.  Supp.  776,  10 
App.  Div.  137.  The  mere  fact  that  an  encroachment  has  continued  for  twenty 
years  does  not  establish  a  right  by  adverse,  possession  to  the  space  encroached 
upon.  Miner  v.  Hilton,  44  N.  Y.  Supp.  165,  15  App.  Div.  55. 

10  Stevenson  v.  Fox,  57  N".  Y.  Supp.  1094,  49  App.  Div.  354. 

u  Code  Civ.  Proc.  N.  Y.  §  1499. 


870  MARKETABLE    TITLE    TO    REAL    ESTATE. 

the  purchaser  cannot  object  to  the  title  where  ne  such  suit  has 
been  brought  within  the  year  prescribed.18  There  is  also  a  statute 
in  the  same  State  which  requires  a  city  to  begin  proceedings 
within  a  specified  time  for  the  removal  or  abatement  of  structures 
encroaching  upon  a  street.  Slight  encroachments  upon  a  street 
are  no  objection  to  the  title,  where  the  city  has  brought  no  such 
suit  within  the  specified  time."  That  a  building  on  the  property 
does  not  conform  to  municipal  regulations  or  ordinances,  does  not 
make  the  title  unmarketable.14 

§  307-b.  Deficiencies  in  quantity.  The  objection  is  frequently 
made  that  the  vendor  is  not  able  to  convey  as  much  land  as  the 
purchaser  is  entitled  to  under  the  contract.  The  deficiency  may 
result  either  from  an  incorrect  estimate  of  the  quantity  of  land 
within  certain  bounds,  or  it  may  result  from  the  want  of  title  of 
the  vendor  to  some  portion-  of  the  land  included  within  those 
bounds,  or  from  the  want  of  such  an  easement  in  adjoining  prop- 
erty as  the  vendor  represented  himself  to  have.  If  the  deficiency 
be  so  great  or  so  important,  that  the  purchaser  cannot  be  required 

"Volz  v.  Steiner,  73  N.  Y.  Supp.  1006,  87  App.  Div.  504.  This  provision 
applies  only  where  the  wall  abuts  a  wall  on  the  adjoining  lot;  it  does  not 
apply  where  the  encroachment  is  upon  a  lot  on  which  there  is  no  abutting 
wall.  Bergmann  v.  Klein,  89*  N.  Y.  Supp.  624.  97  App.  Div.  15.  The  limita- 
tion does  not  begin  to  run  against  those  having  a  remainder  in  the  lot 
encroached  upon  until  they  have  entered.  Hence  the  statute  does  not  cure 
the  objection  where  the  premises  encroached  upon  are  occupied  by  a  life- 
tenant  with  remainder  over.  Snow  v.  Monk,  80  N.  Y.  Supp.  710,  81  App. 
Div.  206. 

"Merges  v.  Ringler,  54  N.  Y.  Supp.  280,  34  App.  Div.  415;  Harrison  v. 
Platt,  54  N.  Y.  Supp.  842,  35  App.  Div.  533;  Van  Horn  v.  Stuyvesant,  100 
N".  Y.  Supp.  547;  Huber  v.  Groo,  168  N.  Y.  Supp.  834,  181  App.  Div.  369,  a 
rase  in  which  an  abandoned  strip  of  a  town  road  through  the  premises  had 
been  conveyed  by  the  town  to  the  abutting  owner.  In  Schaefer  v.  Hilliker, 
124  X.  Y.  Supp.  1014,  the  fact  that  the  premise!*  included  a  part  of  an 
abandoned  road,  title  to  which  was  in  the  city,  made  the  title  unmarketable. 

14  Leerburger  v.  Watson,  134  N.  Y.  Supp.  818,  75  Misc.  Rep.  3.  Compare 
Acme  Realty  Co.  v.  Schinasi,  (N.  Y.)  1O0  N.  E.  577.  The  fact  that  the  stoop 
of  a  building  projects  several  feet  beyond  the  lot  lino  into  the  street  is  no 
objection  to  the  title.  Broadbelt  v.  Loew,  162  N.  Y.  642,  57  N.  K.  Rep.  1105; 
Ixjvy  v.  Hill,  75  N.  Y.  Supp.  19,  70  App.  Div.  95.  Slight  encroachment-! 
lieyond  the  street  line  are  no  objection  to  the  title  where  they  have  existed 
for  a  number  of  years  without  objection  on  the  part  of  the  city  authorities. 
Webster  v.  Kings  Co.  Tr.  Co.,  145  N.  Y.  275,  39  N.  E.  Rep.  964. 


OF    DOUBTFUL,    TITLES.  871 

to  complete  the  contract  with  compensation,  or  abatement  of  the 
purchase  money,  for  the  defect,  the  title  is  said  to  be  not  market- 
able,15 though  in  a  technical  sense,  that  term  is  properly  applicable 
only  to  those  cases  in  which  a  doubt  arises  as  to  the  sufficiency  of 
the  vendor's  title  to  some  portion  of  the  premises  embraced  in  the 
contract,  and  not  to  cases  in  which  there  is  a  clear  want  of  title 
to  such  portion.  Trifling  deficiencies  are  no  ground  on  which  to 
reject  the  title.16 

A  title  will  not  be  rendered  unmarketable  by  a  deficiency  in 
area  when  the  contract  was  made  with  reference  to  fixed  monu- 
ments 'bounding  the  land.17  But  the  rule  that  monuments  control 
metes  and  bounds,  courses  and  distances,  does  not  apply  when 
there  is  no  certain  boundary  in  the  description  which  can  make 
the  courses  and  distances  yield  to  fixed  monuments.18 

§  307-c.  Physical  defects,  dilapidation,  want  of  repairs,  or  want 
of  facilities  required  by  law,  do  not  make  the  title  unmarketable.1* 

15  Post,  ch.  33.  Albro  v.  Gowland,  90  N.  Y.  Supp.  796,  98  App.  Div.  474.  If 
the  vendor  sells  the  property  as  bounded  by  a  street  but  fails  to  mention  the 
liability  of  a  strip  of  the  land  to  condemnation  for  widening  the  street,  the 
purchaser  cannot  be  required  to  complete  the  contract.  Celestial  Realty  Co. 
v.  Childs,  169  N.  Y.  Supp.  597,  182  App.  Div.  85. 

14  Garibaldi  Realty  Co.  v.  Santangelo,  149  N.  Y.  Supp.  669,  164  App.  Div. 
513. 

"Pope  v.  Thrall,  68  N.  Y.  Supp.  137,  33  'Misc.  44;  Scannel  v.  Amer.  Soda 
Fountain  Co.,  161  Mo.  606,  61  S.  W.  Rep.  889.  The  purchaser  of  a  city 
lot  cannot  object  that  the  house  on  the  lot  encroaches  several  inches  on  an 
adjoining  lot,  where  both  lots  were  formerly  owned  by  the  same  person,  and 
the  vendor  holds  under  a  conveyance  from  that  person.  In  such  case  the  loca- 
tion of  the  house  is  conclusive  on  subsequent  grantees  of  the  lot  encroached 
upon  as  to  the  extent  of  the  lot,  under  the  rule  that  natural  or  artificial 
boundaries  plainly  referred  to,  must  control  measurements  and  distances  with 
which  they  do  not  agree.  Katz  v.  Kaiser,  41  N".  Y.  Supp.  776,  10  App. 
Div.  137.  Where  the  contract  described  city  lots  as  bounded  by  a  street,  the 
vendor  having  no  fee  nor  rights  in  the  street,  there  was  no  implied  covenant 
that  the  street  had  been  legally  opened,  or  would  remain  open.  Interborough 
R.  T.  Co.  v.  Littlefield,  149  N.  Y.  Supp.  741. 

M  Fuhr  v.  Cronin,  81  N.  Y.  Supp.  536,  82  App.  Div.  210. 

"Woodenbury  v.  Spier,  106  N.  Y.  Supp.  817,  122  App.  Div.  396. 


CHAPTER  XXXII. 

OF  THE  RIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE. 

BEFORE  THE  TIME  FIXED  FOB  COMPLETING  THE  CONTRACT. 

{  308. 
AFTER  THE  TIME  FIXED  FOR  COMPLETING  THE  CONTRACT. 

{  309. 

Exceptions:  (1)  Where  time  is  material.  §  310. 

(2)  Where  the  covenants  are  mutual  and  dependent.     §  311. 

(3)  Waiver  of  the  right.    §  312. 

(4)  Loss  and  injury  to  the  purchaser.    §  313. 

(5)  Fraud  of  the  vendor.    §  314. 

(6)  Want  of  colorable  title.    §  315. 

(7)  Laches  of  the  vendor.    §  316. 

(8)  Effect  of  special  agreements.    §  317. 

(9)  Effect  of  notice  and  request  to  perfect  the  title.    §  318. 

IN  WHAT  PROCEEDINGS  THE  RIGHT  MAY  BE  ASSERTED.    f  S19. 
REFERENCE  OF  THE  TITLE  TO  MASTER  IN  CHANCERY. 

When   directed.     §   320. 

When  refused.     §   321. 

At  what  stage  of  the  proceedings  reference  may  be  made.    §  322. 

Procedure.     Costs.     §   323. 

INTEREST  ON  THE  PURCHASE  MONEY  WHILE  TITLE  IS  BEING 
PERFECTED.     §   324. 

§  308.  BEFORE  THE  TIME  FIXED  FOR  COMPLETING  THE 
CONTRACT.  The  vendor  may  of  right  perfect  his  title  at  any 
time  before  the  period  fixed  for  the  completion  of  the  contract, 
and  the  fact  that  his  title  was  incomplete  at  the  time  the  contract 
was  made,  is  immaterial,  provided  the  matters  necessary  to  make 
the  title  pood  can  be  accomplished  before  the  time  specified  for 
making  the  conveyance.1  The  vendor  is  not  necessarily  guilty  of 

'1  Sugd.  Vend.  (8th  Am.  ed.)  306;  1  Chitty  Cont.  (llth  ed.)  431;  Will. 
Kq.  .Fur.  290;  Stowell  v.  RobinHon,  3  Ding.  (N.  C.)  9*28;  In  re  Bryant,  44  Ch. 
Div.  218;  dray  v.  Smith,  76  Fed.  525;  Harris  v.  Carter.  3  Stew.  (Ala.)  236; 
OemenH  v.  Ixiggins,  2  Ala.  518;  Dreael  v.  Jordan,  104  Mass.  407;  Gibtton  v. 
New-man,  1  How.  ('Mian.)  341;  GOSH  v.  Singleton,  2  Head  (Tenn.),  67;  An- 
drew v.  Babcork,  (Conn.)  26  Atl.  Rep.  715;  Dennis  v.  Stranburgir.  89  Cal. 
583,  25  Pac.  Rep.  1070;  Lemle  v.  Barry,  (Cal.)  183  Pac.  148;  Hundley  v. 
TibbettB,  (Ky.)  16  8.  W.  Rep.  131;  More  v.  Smedburgh,  8  Paige  Ch.  (JT.  Y.) 

[872] 


OF   THE   EIGHT   OF   THE   VENDOR   TO   PERFECT   THE   TITLE.       873 

fraud  in  representing  that  his  title  is  good  and  indefeasible,  if  he 
be  able  to  make  it  «o  before  the  time  fixed  for  completing  the 
contract.2  Generally  speaking  the  vendor  will  not  be  permitted 
to  perfect  the  title  where,  at  the  time  of  the  contract,  he  has  no 
colorable  title  to  the  premises  and  seeks  to  compel  the  vendee  to 
await  his  efforts  to  get  in  the  title  after  the  time  when  the  contract 
should  have  been  performed.  The  law  does  not  encourage  specu- 
lation in  the  property  of  strangers ;  the  vendor  must  have  been  a 
bona  fide  contractor.3  But  the  purchaser  cannot  object  to  specific 

600;  Friedman  v.  Dewees,  33  1ST.  Y.  Super.  Ct.  450;  Whitney  v.  Crouch,  172 
N.  Y.  Supp.  729;  Monsen  v.  Stevens,  56  111.  335;  Bowersock  v.  Beers,  82  111. 
App.  396;  Elder  v.  Chapman,  70  111.  App.  288;  Armstrong  v.  Breen,  101 
Iowa,  ft,  69  N.  W.  Rep.  1125;  Maryland  Const.  Co.  v.  Kuper,  90  Md.  529, 
45  Atl.  197 ;  Moot  v.  Business  Men's  Asso.,  157  N.  Y.  201,  52  N.  E.  Rep.  1 ; 
Mincey  v.  Foster,  125  N.  C.  541,  34  S.  E.  Rep.  644;  Garber  v.  -Button,  96 
Va.  469,  31  S.  E.  Rep.  894;  Mundy  v.  Garland,  116  Va.  922,  83  S.  E.  491; 
Jones  v.  Taylor,  7  Tex.  240,  56  Am.  Dec.  48;  Runnels  v.  Pruitt,  (Tex.  Civ. 
App.)  204  S.  W.  1017;  Tison  v.  Smith,  8  Tex.  147.  Here  the  vendor  had  no 
title  to  a  part  of  the  land  sold,  and  had  to  buy  it  from  a  third  party  in  order 
to  fulfill  the  contract  on  his  part,  but  the  purchaser  was  aware  of  all  the 
facts  when  he  bought.  Elliott  v.  Hogue,  113  Ark.  599,  168  S.  W.  1097; 
Silfver  v.  Daenzer,  167  Mich.  362,  133  N.  W.  16;  McNally  v.  Palmer,  (N.  J. 
Eq.)  100  Atl.  335;  Agens  v.  Koch,  74  N.  J.  Eq.  528,  70  Atl.  348;  Martinson 
V.  Requa,  18  N".  D.  467,  123  N.  W.  285;  Ward  v.  James,  84  Oreg.  375,  164 
Pac.  370;  Morris  v.  Canal  Co.,  T5  Wash.  483,  135  Pac.  238;  Zizich  v.  Invest- 
ment Co.,  77  Wash.  392,  137  Pac.  1028;  Armstrong  v.  Coal  Co.,  67  W.  Va. 
589,  69  S.  E.  195.  Conveyance  to  a  third  party  for  the  purpose  of  facilitating 
performance  of  the  contract,  is  no  ground  for  rescission,  vendor  having  until 
the  "  law  day "  in  which  to  perform.  Tanzer  v.  Banker's  Corp.  144  X.  Y. 
Supp.  613,  150  App.  Div.  351.  In  Cook  v.  Bean,  17  Ind.  504,  it  was  held  that 
the  vendor's  right  to  time  in  which  to  perfect  the  title,  obtains  only  in  cases 
where  some  secret  defect  is  discovered  in  the  title,  and  does  not  operate  to 
excuse  the  vendor  from  doing  all  in  his  power  to  fulfill  the  contract  at  the 
appointed  time.  This  case  must  not  be  given  too  broad  an  interpretation, 
else  it  will  conflict  with  the  rule  that  one"  purchasing  with  knowledge  that 
time  will  be  required  to  perfect  the  title,  is  held  to  have  waived  his  right  to 
demand  a  strict  performance  at  the  time  fixed  for  completing  the  contract. 
In  Upton  v.  Maurice,  (Tex.  Civ.  App.)  34  S.  W.  Rep.  642,  it  was  held  that 
where  time  was  not  of  the  essence  of  the  contract,  and  the  vendee  has  made 
no  tender  of  performance  on  his  part  and  no  demand  of  performance  on  the 
part  of  the  vendor,  the  right  of  the  latter  to  perfect  the  title  remains  until 
a  right  of  action  on  the  contract  is  barred  by  the  statute  of  limitations. 

2  Cases  cited  in  last  note. 

1  Armstrong  v.  Palmer,   (Tex.  Civ.  App.)  .218  S.  W.  627. 

110 


874  MARKETABLE    TITLE    TO    REAL    ESTATE. 

performance  on  the  ground  that  the  vendor  had  no  semblance  of 
title  at  the  time  of  the  contract  if  he  has  acquired  or  can  acquire 
it  before  the  time  fixed  for  the  completion  of  the  contract.  In 
such  a  case  the  purchaser  is  put  to  no  delay  or  inconvenience,  and 
there  is  nothing  of  which  he  can  complain.4  Especially  if  he 
entered  into  the  contract  knowing  that  the  vendor  would  have  to 
obtain  the  title  from  another.5  The  vendor  has,  of  course,  until 
the  time  fixed  for  completing  the  contract  in  which  to  remove 
incumbrances.'  The  delivery  of  the  deed  and  the  payment  of 
the  purchase  money  are  simultaneous  acts.  The  vendor  is  not 
bound  to  raise  money  and  pay  the  incumbrances  in  advance.  If 
he  produces  the  holder  of  the  lien  ready  to  satisfy  it  on  payment 
he  can  rely  on  the  purchase  money  as  the  fund  for  such  payment.7 
Therefore,  the  foreclosure  of  a  mortgage  upon  the  premises  before 
a  final  payment  of  the  purchase  money  becomes  due,  is  no  ground 
upon  which  to  rescind  the  contract,  unless  the  agreement  expressly 
required  the  vendor  to  remove  incumbrances  before  all  the  pur- 
chase money  should  be  paid,  or  unless  there  should  be  circum- 
stances in  the  case  that  would  make  inequitable  a  compulsory  per- 
formance by  the  vendee.8  If  by  the  contract  it  is  expressly  pro- 
vided that  the  purchaser  shall  receive  a  title  clear  of  all  incum- 
brances, the  vendor  must  discharge  these  before  the  time  fixc«l 
for  completing  the  contract,  and  the  purchaser  will  not  be  in 

•Post,  this  chapter,  §  315.  Webb  v.  Stephens,  (Wash.)  39  Pac.  052. 
The  fact  that  a  guardian  had  no  authority  to  sell  at  the  time  of  sale,  does 
not  invalidate  the  contract,  if  he  acquires  authority  before  the  time  fixed  for 
completing  the  contract.  'Morris  v.  Goodwin,  (Ind.  App.)  27  X.  E.  Rep.  985. 

•Weitzel  v.  Leyson,  23  S.  D.  367,  121  N.  W.  868;  Walken  v.  Nbkken,  38 
S.  D.  289,  161  X.  W.  194. 

•Smith  v.  MrMahon.  107  Mass.  16,  83  N.  E.  9. 

TAnte,  $  87.  Webster  v.  Kings  Co.  Trust  Co.,  80  Hun  (X.  Y.).  420,  30 
N.  Y.  Supp.  357;  Gibson  v.  Newman,  1  How.  (Miss.)  34fi:  Duluth  Land  Co. 
v.  Klovdahl.  :>.~>  Minn.  341.  "><;  \.  \V.  Hep.  1110;  Anderson  v.  Creston  Land 
Co.,  96  Va.  257,  31  S.  K.  Rep.  82;  Griesemar  v.  Hammond.  18  Cal.  App. 
535,  123  Pac.  818;  Mobley  v.  Quattlebaum,  101  S.  C.  221,  85  S.  E. 
Ward  v.  Jam«B,  84  Oreg.  375,  164  Pac.  370:  l'o-e\  v.  Rem-ey.  146  Ky.  -'0:.. 
142  S.  W.  7o:i :  Buchanan  v.  Yudi-lson.  2«7  111.  138.  122  X.  K.  100;  Thos. 
J.  Haird  Co.  v.  Harris,  209  Fed.  291,  126  C.  C.  A.  217;  I'nion  l?atf  Corp.  v. 
.•.IT.  J.'i.'i  !•'<•<!.  187.  The  vendor  ha-  until  tin-  time  for  tin-  delivery  of 
his  deed  in  wlmh  to  remove  tax  liens  on  the  land.  '  Wilson  v.  Korte.  <>\ 
Wash.  30.  lf,7  1'ac.  47. 

•Pato  v.  M.Connell,  (Ala.)    1H  So.  Rep.  98.     Post,  this  chapter,  f  317. 


OF   THE   EIGHT   OF  THE  VENDOR   TO   PERFECT   THE  TITLE.       875 

default  in  failing  to  tender  the  purchase  money  if  the  vendor  does 
not  remove  the  incumbrance  before  that  time.9  The  purchaser 
should  make  his  objections  to  the  title  in  time  to  enable  the  vendor 
to  remove  them.10  And  in  any  suit  in  which  he  seeks  to  rescind 
the  contract  he  should  specify  the  defect  of  title  of  which  he  com- 
plains in  order  to  give  the  vendor  an  opportunity  to  remove  it, 
and  time  should  be  allowed  the  vendor  to  bring  proper  parties 
before  the  court,  where  the  title  can  be  perfected  by  having  them 
present.11  If  a  time  be  specified  in  which  the  vendor  may  perfect 
the  title  if  defective,  the  purchaser  can  maintain  no  action  to 
recover  back  the  deposit  before  that  time  has  expired.12  But 
where  the  vendor  refused  to  accept  a  tender  of  the  balance  of  the 
purchase  money  on  the  ground  that  he  had  no  title  and  could  not 
perform  the  contract,  it  was  held  that  he  could  not,  when  sued  for 
the  deposit,  be  heard  to  say  that  the  time  fixed  for  the  completion 
of  the  contract  has  not  yet  expired.13 

Generally,  in  the  purchase  of  an  estate  and  the  appointment  of 
a  particular  day  for  the  completion  of  the  title,  the  principal 
object  is  the  sale  of  the  estate  for  a  given  sum,  and  the  naming  of 
the  day  is  either  merely  formal,  or  for  the  convenience  of  the 
parties  in  the  payment  of  the  purchase  money  on  the  one  side  or 
the  execution  of  a  conveyance  on  the  other.  "  The  stipulation 
means  in  truth  that  the  purchase  shall  be  completed  within  a 
reasonable  time,  regard  being  had  to  all  the  circumstances  of  the 
case  and  the  nature  of  the  title  to  be  made." 14  In  a  case  in  which 
the  contract  provided  that  ten  days  should  be  allowed  for  examina- 
tion of  the  title,  and  that  if  the  title  proved  unsatisfactory  the 
deposit  should  be  returned,  it  was  held  that  the  purchaser  should 
state  his  objections  to  the  title,  if  not  approved,  and  that  the 
vendor  would  be  entitled  to  a  reasonable  time  thereafter  in  which 
to  perfect  the  title,  and  that  the  purchaser  could  not  rescind  the 

"Morange  v.  Morris,  34  Barb.  (N.  Y.)  311;  Roos  v.  Thigpen,  (Tex.  Civ. 
App.)  140  S.  W.  1180. 

"More  v.  Smedburg,  8  Paige  (N.  Y.),  600;  Easton  v.  Montgomery,  90  Cal. 
307,  27  Pac.  Rep.  280. 

"Hogan  v.  McMurtry,  5  T.  B.  Mon.  (Ky.)   181. 

12  Dennis  v.  Strasburger,  89  Cal.  583,  26  Pac.  Rep.  1070. 

"Seiberling  v.  Lewis,  93  111.  App.  549. 

14  Language  of  ALDEBSON,  B.,  in  Hipwell  v.  Knight,  1  Yo.  &  Coll.  415. 


876  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

contract  until  he  had  given  such  notice  of  his  objections  and  fur- 
nished the  vendor  an  opportunity  to  remove  them.15  If  no  time 
for  the  completion  of  the  contract  be  fixed,  the  vendor  may  perfect 
the  title  at  any  time  before  it  is  demanded  by  the  purchaser.16 
And  after  demand,  he  must  be  allowed  a  reasonable  time  in  which 
to  make  out  the  title.17  Where  the  contract  is  silent  as  to  the 
time  when  the  vendor  is  to  convey,  the  legal  implication  is  that 
the  conveyance  is  to  be  made  and  delivered  within  a  reasonable 
time  for  that  purpose,  after  the  vendee  has  tendered  performance 
on  his  part ;  and  if  the  vendor  perfects  his  title  within  such  time, 
he  may  enforce  specific  performance  of  the  contract.18  In  a  suit 
by  the  purchaser  for  specific  performance,  in  which  a  rescission 
of  the  contract  is  not  asked  as  alternative  relief,  it  is  error  in  the 
court  to  rescind  the  contract  without  giving  the  vendor  a  reason- 
able time  in  which  to  perfect  the  title.19  If  the  parties  arrange 
for  the  removal  of  an  incumbrance  prior  to  performance,  without 
naming  a  specific  day,  the  removal  within  a  reasonable  time  is  a 
sufficient  performance.20  We  have  already  seen  under  what  cir- 
cumstances the  purchaser  will  be  deemed  to  have  waived  his  right 
to  require  a  strict  performance  by  the  vendor  at  the  time  fixed 
for  completing  the  contract.21 

In  actions  by  the  vendor  to  recover  the  purchase  money  before 
the  time  when  he  is  required  by  the  contract  to  pass  the  title,  the 

"Anderson  v.  Strasburger,  92  Cal.  3S,  27  Pao.  Rep.  1095,  (citing  Knglandcr 
v.  Rogers,  41  Cal.  420;  Dennis  v.  Strasburger,  89  Cal.  583,  and  East  on  v. 
Montgomery,  supra).  Arnett  v.  Smith,  11  N.  Dak.  55,  88  N.  W.  Rep.  1037; 
EdmiHon  v.  Zaborowski,  9  S.  Dak.  40,  68  N.  W.  Rep.  288;  Nicholson  v.  lieber, 
(Tex.  Civ.  App.)  153  S.  W.  641. 

"Evans  v.  Boiling.  5  Ala.  550;  Morgan  v.  Scott,  2<5  Pa.  Si.  51;  Gibson  v. 
Brown,  214  111.  330,  73  N.  E.  Rep.  578. 

"Sugd.  Vend.  (8th  Am.  ed.)  397.  Baker  v.  Shy,  9  Heisk.  (Tenn.)  85; 
Tapp  v.  Nock,  89  Ky.  414.  In  this  case  the  sale  was  made  'March  twenty- 
eighth  and  the  title  was  perfected  and  a  deed  tendered  on  the  following  May 
twenty-eighth.  The  purchaser  was  required  to  accept  the  de*d,  though  the 
property  had  been  bought  for  speculative  purposes  during  a  time  of  inflated 
prices  and  had  declined  in  value  before  the  title  wan  perfected. 

"Williamson  v.  Neeves,  94  Wis.  656,  69  N.  W.  806;  Goctzmann  v.  Caldwell, 
152  N.  Y.  Supp.  491. 

"Russell  v.  Rhively,  3  Bush  (Ky.),  162.. 

"Cramer  v.  Mooney,  59  N.  J.  Kq.  164,  44  Atl.  026. 

"Ante,  oh.  8. 


OF  THE  EIGHT  OF  THE  VENDOR   TO   PERFECT   THE  TITLE.       877 

purchaser  cannot  defend  on  the  ground  that  the  title  is  defective, 
since  the  vendor  may  acquire  the  title  before  the  specified  time. 
It  is  sufficient  if  he  have  a  good  title  at  the  time  when  the  convey- 
ance is  to  be  made,  and  the  objection  that  he  had  none  at  the  time 
the  contract  was  made  will  be  unavailing.22  It  is  true  that  equity 
will  not  decree  specific  performance  by  the  purchaser  when  it 
appears  that  the  vendor,  having  no  title  nor  color  of  title,  under- 
takes to  sell  the  property  of  a  third  person,  speculating  in  his 
chances  of  acquiring  the  title  from  that  person.23  But  equity  will 
not  always  rescind  a  contract  which  it  refuses  to  enforce,  the 
parties  being  left  to  their  remedies  at  law.24  And,  at  law,  in  the 
case  under  consideration,  the  purchaser,  having  agreed  to  pay  the 
purchase  money  before  the  time  when  he  is  entitled  to  a  convey- 
ance, must  abide  the  consequences  of  his  contract.  Therefore,  it 
has  been  held  that  if,  by  the  contract,  the  purchase  money  is  to 
be  paid  in  installments,  and  the  conveyance  is  not  to  be  made 
until  the  last  installment  is  paid,  the  purchaser  cannot  refuse  to 
pay  the  purchase  money  on  the  ground  that  the  title  is  defective,25 
unless  it  appears  that,  because  of  the  vendor's  insolvency,  or  for 
some  other  reason,  the  purchaser's  remedy  by  action  for  breach 
of  the  contract  will  prove  unavailing.26  It  is  scarcely  necessary 
to  say  that,  if  the  covenants  to  pay  the  purchase  money  and  to 
convey  an  indefeasible  title  are  mutual  and  dependent,  the  vendor 
will  not  be  allowed  time  in  which  to  perfect  the  title,  if  time  be 
of  the  essence  of  the  contract.27  Neither  will  he  be  allowed  that 

2JAnte,  §  308.  Harrington  v.  Higgins,  17  Wend.  (N.  Y.)  376;  Wright  v. 
Blackley,  3  Ind.  101;  Wiley  v.  Howard,  15  Ind.  169;  Taylor  v.  Johnson,  19 
Tex.  351. 

"Post,  §  315. 

"Ante,  §  283. 

25  Ante,  §  8-8,  and  Harrington  v.  Higgins  and  other  cases  cited,  supra. 
Diggle  v.  Boulden,  48  Wis.  477;  True  v.  N".  Pac.  Ry.  Co.,  126  Minn.  72,  147 
N,  W.  948. 

2«McIndoe  v.  Morman,  26  Wis.  588,  7  Am.  Rep.  96;  Durham  v.  Hadley, 
(Kans.)  27  Pac.  Rep.  105;  Peak  v.  Gore,  94  Ky.  533. 

"Post,  §  311.  Harrington  v.  Higgins,  17  Wend.  (N.  Y.)  376;  Carpenter 
v.  Brown,  6  Barb.  (N.  Y.)  147,  semble;  Holmes  v.  Holmes,  12  Barb.  (N.  Y.) 
137.  After  a  purchaser  has  exercised  his  right  to  rescind  for  failure  of  title, 
under  Civil  Code  of  California,  section  1689,  subdivision  4,  which  provides 
that  a  party  to  a  contract  may  rescind  the  same  if  the  consideration,  before 


878  MARKETABLE  TITLE  TO  KEAL  ESTATE. 

privilege  if  the  case  be  such  that  the  vendee  cannot  compel  specific 
performance  after  the  title  has  been  perfected.  There  must  be 
mutuality  of  obligation  between  the  parties." 

Wherever  the  privilege  of  perfecting  the  title  is  accorded  to  the 
vendor  he  must,  as  a  general  rule,  pay  the  costs  of  the  suit;  the 
suit  being  made  necessary  by  his  default.29 

While  the  vendor,  as  a  general  rule,  will  be  allowed  time  in 
which  to  perfect  the  title,  extraordinary  relief  by  way  of  injunc- 
tion or  the  writ  of  ne  exeat  will  not  be  granted  at  the  same  time.80 
The  vendor  must  show  a  present  ability  to  perform  the  contract  on 
his  part.  Thus,  where  the  contract  was  for  an  exchange  of  lauds, 
and  the  complainant  prayed  an  injunction  to  restrain  the  defend- 
ant from  receiving  the  rents  and  profits  of  his  own  property  pend- 
ing the  complainant's  efforts  to  remove  an  incumbrance  from  the 
premises  he  was  to  give  in  exchange,  the  court  reversed  an  order 
of  the  court  below  granting  the  injunction.31 

The  purchaser  will  not  be  allowed  to  forestall  the  vendor  by 
acquiring  an  outstanding  right  and  setting  it  up  adversely  to  the 
latter."  Specific  performance  will  be  decreed  against  the  pur- 
chaser, allowing  him  the  amount  paid  for  the  interest.  The  same 
rule  is  enforced  at  law." 

The  vendor  may  perfect  his  title  if  he  chooses,  but  in  the 
absence  of  any  agreement  or  covenant  to  that  effect,  there  is  no 
obligation  upon  him  so  to  do,  and  the  purchaser  cannot  recover 

it  is  tendered  to  him,  fails  in  a  material  respect  from  any  cause,  the  vendor 
cannot  revive  the  contract  by  tendering  a  conveyance  of  a  pood  and  sufficient 
title.  Anderson  v.  Strasburger,  92  Cal.  38.  27  Pac.  Rep.  10fl5. 

•White  v.  Needham,  21  Ky.  Law  R.  1051,  54  S.  W.  Rep.  9. 

"Fishbaek  v.  Williams,  3  Bibb  (Ky.),  342;  Jarboe  v.  McAtee,  7  B.  Mon. 
(Ky.)  279;  Lesesne  v.  Witte,  5  8.  C.  402;  Bates  v.  Lyons,  7  S.  C.  85;  Lyles 
v.  Kirkpatrick,  9  S.  C.  2ft5.  Where  the  purchaser  has  agreed  to  share  the 
expenses  of  perfecting  the  title  he  must  pay  his  portion  of  such  expenses  as 
they  occur,  or  he  cannot  enforce  the  contract.  Hutcheson  v.  McXutt,  1 
Ohio.  16. 

"Brown  v.  Huff,  5  Paige  (N.  Y.),  241;  Morris  v.  McNeill,  2  RUM.  604. 
See,  also,  2  Dicken's  R.  497,  note. 

"Baldwin  v.  Baiter,  8  Paige  (N.  Y.),  472. 

"Murrell  v.  Ooodyear,  1  De  O.,  F.  &  J.  432;  Westall  v.  Austin,  5  Ired.  Eq. 
(N.  C.)  1;  Kindley  v.  Gray,  6  Ired.  Eq.  (N.  C.)  445;  Bush  v.  Marshall.  0 
How.  (U.  8.)  691:  Roller  v.  Effinger,  (Va.)  14  S.  E.  Rep.  337. 

"Ante.  |  202.    Fongate  v.  Herkimer  Mfg.  Co..  12  Barb.   (X.  Y.)   352. 


OF   THE   BIGHT  OF  THE  VENDOR   TO   PERFECT   THE  TITLE.       879 

damages  against  him  for  refusing  to  perfect  the  title.34  Nor 
can  the  purchaser  recover  damages  from  the  vendor  for  loss  of 
the  use  of  the  premises  while  the  title  is  being  perfected,  in  the 
absence  of  anything  to  show  that  he  could  not  have  taken  im- 
mediate possession  of  the  premises.35 

The  purchaser  waives  performance  within  the  time  limit  by 
returning  the  abstract  with  his  objections  after  the  expiration 
of  the  specified  time  for  performance.36 

§  309.  AFTER  THE  TIME  FIXED  FOR  COMPLETING  THE  CON- 
TRACT. If  the  time  for  completing  the  contract  has  elapsed,  the 
vendor  may  nevertheless  insist  upon  his  right  to  perfect  the  title, 
except  in  certain  cases  hereafter  to  be  mentioned.37  As  a  general 
rule  it  is  sufficient  if  he  be  able  to  convey  a  good  title  at  any  time 
before  decree  in  any  proceeding  in  which  it  is  sought  to  rescind  or 
to  enforce  the  contract.38  He  may  perfect  the  title  at  any  time 

"Fresbrey  v.  Kline,  20  D.  C.  513. 

35  Reed-Allen  Co.  v.  Spencer,  (Tex.  Civ.  App.)  138  S.  W.  806. 

"•Carroll  v.  Mundy,  (Iowa)   170  N.  W.  790. 

"Post,  §  310. 

38 Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1349;  2  Dan.  Ch.  Pr.  1195,  n.;  Adams  Eq. 
(5th  Am.  ed.)  199,  200;  Langford  v.  Pitt,  2  P.  Wms.  631;  Boehm  v.  Wood, 
1  Jac.  &  Walk.  419;  Haggart  v.  Scott,  1  Russ.  &  Myl.  293;  Seton  v.  Slade,  7 
Ves.  270;  Eyston  v.  Seymond,  1  Yo.  &  Coll.  E.  C.  608;  Hepburn  v.  Dunlop, 
1  Wh.  (U.  S.)  196;  McKay  v.  Carrington,  1  McLean  (U.  S.),  64;  Greogory  v. 
Keenan,  256  Fed.  949;  Owens  v.  Cowan,  7  B.  Mon.  (Ky.)  152;  Gaither  v. 
O'Doherty,  (Ky.)  12  a  W.  Rep.  306;  Spicer  v.  Jones,  (Ky.)  1  S.  W.  Rep. 
810;  Holmes  v.  Holmes,  107  Ky.  163,  53  S.  W.  Rep.  29;  Pierce  v.  Nichol,  1 
Paige  (N.  Y.),  244;  Dutch  Church  v.  Mott,  7  Paige  (N.  Y.),  77;  Voorhees 
v.  De  Meyer,  2  Barb.  (N.  Y.)  37;  Baumeister  v.  Demuth,  82  N.  Y.  Supp.  831, 
84  App.  Div.  394;  Baldwin  v.  McGrath,  83  N".  Y.  Supp.  582,  41  Misc.  Rep.  39; 
Weinheimer  v.  Ross,  205  N.  Y.  518,  99  N".  E.  145;  Pakas  v.  Clarke,  121  1ST.  Y. 
Supp.  192,  136  App.  Div.  492;  Jenkins  v.  Whitehead,  15  Miss.  577;  Moss  v. 
Davidson,  9  Miss.  112;  Fletcher  v.  Wilson,  1  Smed.  &  M.  Ch.  (Miss.)  376; 
Luckett  v.  Williamson,  37  Mo.  388;  Isaacs  v.  Skrainka,  95  Mo.  517,  8  S.  W. 
Rep.  427;  Hobson  v.  Lenox,  (Mo.  App.)  201  S.  W.  964;  Wilson  v.  Tappan, 
6  Ohio,  172;  Dubose  v.  James,  McMull.  Eq.  (S.  C.)  55;  Morgan  v.  Scott, 
26  Pa.  St.  51;  Townsend  v.  Lewis,  35  Pa.  St.  125;  Hunter  v.  Lewis,  234  Pa. 
134,  82  Atl.  1100;  Syne  v.  Johnston,  3  Call  (Va.),  558;  Second  Univ.,  etc., 
Soc.  v.  Hardy,  31  N.  J.  Eq.  442;  Young  v.  Collier,  31  N.  J.  Eq.  444;  Mc- 
Kinney  v.  Jones,  55  Wis.  39;  Mitchell  v.  Allen,  69  Tex.  70;  Burwell  v.  Sollock, 
(Tex.  Civ.  App.)  32  S.  W.  Rep.  844;  Coleman  v.  Bank,  115  Ala.  307,  22 
So.  Rep.  84;  Stevenson  v.  Polk,  71  Iowa,  288,  32  N.  W.  Rep.  340;  Mock  v. 
Chalstrom,  121  Iowa,  411,  96  N.  W.  Rep.  909;  Perrin  v.  Chidester,  159  Iowa 


MARKETABLE    TITLE    TO    REAL    ESTATE. 

before  decree  by  obtaining  a  release  of  incumbrances  **  or  of  ad- 
verse claims/0  Therefore,  where  the  contract  required  the  convey- 
ance of  a  fee  and  the  vendor  had  only  a  life  estate,  but  pending  a 
suit  by  him  for  specific  performance  the  life  estate  fell  in,  the 
purchaser  was  compelled  to  complete  the  contract.41  So,  also, 
where  the  vendor  became  divested  of  the  title,  but  reacquired  it 

31,  139  N.  W.  930;  Allen  v.  Adams,  162  Iowa  300,  143  N.  W.  1092;  'Maryland 
Const.  Co.  v.  Kuper,  90  Md.  529,  45  Atl.  197;  MeXeill  v.  Fuller,  121  N.  C. 
209,  28  S.  E.  Rep.  299;  Hobson  v.  Buchanan,  96  N.  C.  444;  Allstead  v.  Nicol, 
123  Cal.  594,  56  Pac.  Rep.  452;  Schwartz  v.  Woodruff,  132  Mich.  513,  93 
N.  W.  Rep.  1067 ;  Seaver  v.  Hall,  50  Neb.  878,  70  N.  W.  Rep.  373,  72  N.  W. 
Rep.  217;  Wetternach  v.  Investment  Co.,  77  Wash.  144,  137  Pac.  442;  Milton 
v.  Crawford,  65  Wash.  145,  118  Pac.  32;  Rollyson  v.  Bourn,  (W.  Va.)  100 
S.  E.  682;  Monarch,  etc.,  Co.  v.  Washburn,  89  Kan.  874,  133  Pac.  156;  Dore 
v.  So.  Pac.  R.  Co.,  163  Cal.  182,  124  Pac.  817;  Wynne  v.  Morgan,  7  Ves.  202. 
This  is  a  much  cited  case.  The  suit  was  by  the  vendor  for  specific  per- 
formance. The  defendant,  in  his  answer,  did  not  object  that  time  was  ma- 
terial, and  time  was  accordingly  allowed  in  which  to  procure  an  act  of 
parliament  removing  an  objection  to  the  title;  and  the  act  was  procured  in 
three  months  thereafter.  The  rule  was  thus  stated :  "  Where  the  time  at 
which  the  contract  was  to  be  executed  is  not  material,  and  there  is  no 
unreasonable  delay,  the  vendor,  though  not  having  a  good  title  at  the  time 
the  contract  was  to  be  executed,  nor  when  the  bill  was  filed,  but  being  able 
to  make  a  good  title  at  the  hearing,  is  entitled  to  a  specific  performance." 
Approved  in  Richmond  v.  Gray,  3  Allen  (Mass.),  25.  If  the  purchaser 
acquiesce  in  steps  by  the  vendor  to  procure  the  title,  he  must  accept  the  same 
if  made  out  at  the  hearing.  Haggart  v.  Scott,  1  RUBS.  &  Myl.  293.  In  Hale 
v.  New  Orleans,  18  La.  Ann.  321,  it  seems  to  have  been  held  that  the  vendor 
had  no  right  in  that  case  to  perfect  the  title  after  the  purchaser  had  begun 
a  suit  for  rescission.  The  vendor  may  perfect  the  title  and  tender  a  deed  at 
any  time  before  final  decree  for  rescission  is  actually  enrolled  and  signed. 
Fraker  v.  Brazelton,  12  Lea  (Tenn.),  278;  Clifton  v.  Charles,  53  Tex.  Civ. 
App.  448,  116  S.  W.  120,  seems  to  hold  that  the  vendor  must  have  had  title 
at  the  time  h«  commenced  his  suit  for  specific  performance.  In  Van  Riper 
v.  Wickersham,  76  N.  J.  Eq.  232,  76  Atl.  1020;  Ann.  Cas.  1912  A.  319,  it  waa 
held  that  time  would  be  allowed  the  vendor,  even  after  decree,  in  which  .to 
perfect  the  title,  he  having  been  prevented  by  the  conduct  of  the  purchaser 
from  sooner  perfecting  the  title. 

"Soper  v.  Kipp,  5  N.  J.  Eq.  383;  Young  v.  Collier,  31  N.  J.  Eq.  444. 

*Eyston  v.  Symond,  1  Yo.  &  Col.  Ch.  608;  McKay  v.  Carrington,  1  Me- 
Lean  (U.  8.),  64;  Voorhees  v.  De  Meyer,  2  Barb.  (N.  Y.)  37.  The  vendee 
cannot  refuse  to  perform  the  contract  on  the  pround  that  the  vendor  has  per- 
mitted the  premises  to  be  sold  for  delinquent  taxes,  if  the  time  in  which  the 
premise*  may  be  redeemed  has  not  expired.  Marsh  v.  Wyckoff,  10  BMW. 
(N.  Y.)  202. 

*  Jenkins  v.  Fahig,  73  N.  Y.  358. 


OF   THE   EIGHT   OF   THE   VEKDOB   TO   PERFECT   THE  TITLE.       881 

pending  suit  by  the  purchaser  for  rescission.42  And  where  the 
vendor,  pending  a  suit  by  him  for  specific  performance  had,  by 
mistake,  conveyed  the  subject-matter  of  the  suit  with  other  parcels 
to  a  stranger,  but  procured  a  conveyance  before  the  hearing,  the 
purchaser  was  required  to  complete  the  contract.43  Where  the  con- 
tract does  not  provide  a  time  within  which  the  vendor  is  to  remove 
defects  shown  by  the  abstract,  a  reasonable  time  should  be  allowed 
therefor.44 

If  the  purchaser  call  upon  the  vendor  to  perfect  the  title  by  a 
proceeding  in  court,  he  thereby  consents  that  the  vendor  shall  have 
a  reasonable  time  in  which  to  take  such  proceeding.45 

The  general  statement  frequently  met  with  in  the  reports  and 
text  books,  that  the  vendor  may  perfect  the  title  at  any  time  before 
decree  in  the  cause  in  which  the  right  is  claimed,  is  rather  vague 
and  indefinite.  Time  may  not  have  been  material  at  the  day  fixed 
for  completing  the  contract,  nor  at  the  time  when  suit  for  specific 
performance  was  begun,  but  may  become  so  before  a  hearing  and 
decree  be  had;  these  may  not  transpire  for  many  months,  and 
sometimes  years,  after  the  institution  of  the  suit.  The  rule  then, 
it  is  conceived,  should  be  taken  with  this  qualification,  namely, 
that  if  at  the  hearing,  the  value  of  the  property,  the  situations  of 
the  parties,  and  the  general  circumstances  of  the  transaction  have 
so  changed  as  to  render  it  inequitable  to  compel  the  purchaser  to 
receive  the  perfected  title,  specific  performance  on  his  part  will  be 
denied. 

42  Jenkins  v.  Whitehead,  7  Sm.  &  M.  (Miss.)  577. 

a  Wooding  v.  Grain,  10  Wash.  35,  38  Pac.  Rep.  756.  As  to  the  right  to 
rescind  where  the  vendor  has  conveyed  the  premises  to  a  stranger,  see  post, 
§  315. 

"1  Sugd.  Vend.  (8th  Am.  ed.)  397.  Easton  v.  Montgomery,  90  Cal.  307, 
27  Pac.  Rep.  280.  Thirteen  months  are  more  than  a  reasonable  time  in  which 
to  procure  releases  of  mortgages  not  appearing  upon  the  record  to  have  been 
satisfied.  Ailing  v.  Vanderstucken,  (Tex.  Civ.  App.)  194  S.  W.  443.  A 
provision  that  the  seller  should  furnish  a  merchantable  abstract  of  title  within 
ten  days  from  the  date  of  the  contract,  and  a  deed  to  the  property  within 
three  days  after  the  title  was  found  to  be  good,  does  not  require  that  the  title 
shall  be  perfected  within  the  three  days  after  delivery  of  the  abstract.  The 
seller  is  entitled  to  a  reasonable  time  in  which  to  correct  irregularities.  Evana 
v.  Gerry,  174  111.  595,  51  N.  E.  Rep.  615. 

*5Colpe  v.  Lindblom,  (Wash.)  106  Pac.  634. 
Ill 


882  MARKETABLE    TITLE    TO    REAL    ESTATE. 

Of  course  if  the  purchaser  knows  at  the  time  of  the  contract  that 
the  title  is  defective,  and  that  some  time  will  be  required  to  remove 
the  objections,  he  cannot  insist  upon  a  rescission  withoiit  affording 
the  vendor  an  opportunity  to  perfect  the  title.46  Where  neither  the 
terms  of  the  contract  nor  the  circumstances  of  the  parties  make  per- 
formance at  the  specified  time  material,  the  purchaser  cannot,  on 
finding  the  title  defective,  rescind  the  contract  without  notifying 
the  vendor  to  remove  the  defects1  within  a  reasonable  time.47  The 
question  whether  the  vendor,  after  he  has  conveyed  the  premises  to 
the  purchaser  with  covenants  for  title,  will  be  allowed  to  perfect 
the  title  by  purchasing  the  rights  of  an  adverse  claimant,  and  re- 
quiring the  purchaser  to  take  the  after-acquired  title  in  lieu  of 
damages  for  breach  of  the  covenants,  has  already  been  considered.48 

The  vendor  cannot  have  an  indefinite  time  in  which  to  perfect 
the  title.49  In  a  case  in  Xew  York,  the  trial  judge  directed  that 
the  vendor  should,  by  proceedings  to  be  instituted  by  him  within 
sixty  days  against  certain  parties  having  adverse  interests,  estab- 
lish a  particular  fact  necessary  to  the  validity  of  his  title.  On 
appeal  this  was  held  error,  the  court  saying:  "The  effect  of  this 
order  was  to  change  utterly  the  purchaser's  contract,  and  bind 
him  to  an  agreement  which  he  never  made.  It  left  the  period  of 
performance  entirely  uncertain  and  indefinite.  The  seller  could 
begin  his  proceeding  within  sixty  days,  and  after  that  was  free 
to  pursue  the  litigation  at  his  pleasure,  while  the  purchaser  re- 

*Ante,  §  85.  1  Sugd.  Vend.  (8th  Am.  cd.)  407;  Fry  Sp.  Perf.  $  1307; 
Seton  v.  Slade,  7  Vea.  265,  a  leading  case.  Barrett  v.  Gaines,  8  Ala.  373? 
Craddock  v.  Shirley,  3  A.  K.  Marsh.  (Ky.)  288;  Jackson  v.  Ligon,  3  Leigh 
(Va.),  161;  Reeves  v.  Dickey,  10  Orat.  (Va.)  138. 

"Schiffer  v.  Dietz,  83  N.  Y.  300;  Myers  v.  DeMeier,  52  N.  Y.  647. 

"Ante,  8  215. 

•Eller  v.  Newell,  159  Iowa,  711,  141  N.  W.  62;  Carroll  v.  Mundy,  185 
Iowa  527,  170  S.  W.  790;  Raymond,  etc.,  Co.  v.  Sharp,  (Tex.  Civ.  App.)  175 
S.  W.  490;  Maupai  v.  Jackson,  118  N.  Y.  Supp.  513.  Where  the  vendor 
reserves  the  right  to  perfect  his  title  by  proceedings  in-  court,  he  must 
promptly  institute  such  proceeding  as  is  found  to  be  necessary.  Brya  v. 
Thomas,  186  111.  App.  281.  Reasonable  delay  of  the  vendor  in  removing 
liens  on  the  property  is  no  ground  for  refusing  specific  performance  where 
time  was  not  of  the  essence  of  the  contract.  Rollyson  v.  Bourn,  (VV.  Va.) 
100  S.  E.  682. 


OF   THE   EIGHT   OF   THE   VENDOR   TO  PERFECT   THE  TITLE.       883 

mained  bound  for  an  unknown  period,  with  no  guaranty  of  getting 
a  title  in  the  end.50 

The  vendor  cannot  take  advantage  of  the  purchaser's  failure 
to  promptly  rescind  when  the  delay  was  caused  by  the  vendor's 
promise  to  cure  a  defect  in  the  title.51 

While  the  vendor  may,  as  a  general  rule,  perfect  the  title  at 
any  time  before  decree,  he  cannot,  by  perfecting  his  title,  provide 
grounds  on  which  to  recover  damages  from  the  purchaser  in  reject- 
ing the  title  at  the  time  fixed  for  performance  of  the  contract  by 
the  parties.52 

The  question  whether  the  vendor  exercised  sufficient  diligence 
in  perfecting  the  title  is  for  the  court.53 

§  310.  Exceptions  to  the  rule:  (i)  Where  time  is  of  the  es- 
sence of  the  contract.  The  rule  which  allows  the  vendor  to  remove 
objections  to  the  title  after  the  time  fixed  for  completing  the  con- 
tract does  not  apply  where  time  is  of  the  essence  of  the  contract.54 
Thus,  if  a  man  buy  a  house,  to  be  used  by  him  as  a  residence,55  or 
if  he  buy  property  for  speculative  purposes,  or  for  the  purposes  of 
trade  or  manufacture,  or  for  any  other  purpose  which  would  be 
defeated  by  compelling  him  to  await  the  vendor's  efforts  to  perfect 
the  title,  specific  performance  by  him  will  not  be  enforced  if  the 
vendor  be  unable  at  the  appointed  time  to  convey  such  a  title  as  the 

50  People  v.  Open  Board,  etc.,  92  1ST.  Y.  98.  In  Emerson  v.  Roof,  66  How.  Pr. 
(N.  Y.)  125,  the  purchaser  was  allowed  twenty  days  in  which  to  perfect  the 
title. 

"Scott  v.  Desire,  175  111.  App.  215;  Lancaster  v.  Roberts,  144  111.  213,  33 
N.  E.  27. 

"Ethington  v.  Rigg,  173  Ky.  355,  191  S.  W.  98. 

"Lewis  v.  Woodbine  Sav.  Bank,  (Iowa)  174  N.  W.  19;  Downing  v.  Anders, 
(Mo.  App.)  202  S.  W.  297. 

64 1  Sugd.  Vend.  (8th  Am.  ed.)  404;  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1041, 
et  seq.  Seibel  v.  Purchase,  134  Fed.  Rep.  484;  Rugg  v.  Realty  Co.,  261  Pa. 
453,  104  Atl.  685;  Janulewycz  v.  Quagliano,  88  Conn.  60,  89  Atl.  897,  Ky. 
Distilleries  Go.  v.  Blanton,  149  Fed.  31;  Butterfield  v.  Harris,  20  Cal.  App. 
471,  129  Pac.  614;  Minto  v.  Moore,  1  Ala.  App.  556,  55  So.  542;  Smith  v. 
Browning.,  157  N.  Y.  Supp.  71,  171  App.  Div.  278. 

55  Gedye  v.  Duke  of  Montrose,  26  Beav.  45;  Tilley  v.  Thomas,  L.  R.,  3  Ch.  61. 
Distinguish  these  cases  from  Webb  v.  Hughes,  L.  R.,  10  Eq.  281,  where  the 
conditions  of  sale  provided  that  if  from  any  cause  whatever  the  purchase 
should  not  be  completed  on  a  specified  day,  interest  should  be  paid  on  the 
purchase  money.  Time  was  allowed  in  which  to  perfect  the  title,  though  the 
premises  were  bought  for  immediate  occupation  as  a  residence. 


884:  MARKETABLE    TITLE    To    REAL    ESTATE. 

contract  requires.5*  Time  will  not  be  deemed  to  have  been  of  the 
essence  of  the  contract  where  the  purchaser  knew  that  there  were 
defects  in  the  title  which  could  only  be  removed  by  legal  proceed- 
ings for  that  purpose."  Time  may  be  made  material  by  express 
stipulation  in  the  contract,  by  the  surrounding  circumstances  of 
the  parties,  and  by  notice  that  the  party  giving  it  will  exercise  his 
right  to  rescind  unless  the  contract  be  completed  within  a  certain 
time.58  If  the  thing  sold  be  of  greater  or  less  value,  according  to 
the  efflux  of  time,  then  time  is  of  the  essence  of  the  contract.59  It 
should  be  observed  here  that  the  right  to  perfect  the  title  after  the 
time  fixed  for  completing  the  contract  is  a  concession  to  the  vendor- 
by  the  courts  of  equity.  At  law  time  is  always  deemed  of  the 
essence  of  the  contract ;  and,  if  the  vendor  cannot  produce  a  clear 
title  at  the  appointed  time,  the  purchaser  will  be  entitled  to  his 
action  for  damages.6* 

As  a  general  rule  the  objection  that  time  is  material  cannot  be 
made  if  the  title  to  a  small  part,  only,  of  the  premises  has  failed. 
The  vendor  may  perfect  his  title  to  that  part,  and  specific  perform- 

54  Fry  Sp.  Perf,  (3d  Am.  ed.)  §  1044,  et  seq.  Going  v.  Oakland,  etc.,  Soe., 
117  Mich.  230,  75  N.  W.  Rep.  462.  Where  property  was  purchased  for  im- 
mediate use  as  a  lumber  yard,  a  delay  of  four  months  in  perfecting  the  title 
was  held  material.  Parsons  v.  Gilbert,  45  Iowa,  33. 

"Kemper  v.  Walker,  17  Ky.  Law  R.  1100,  32  S.  W.  Rep.  1093. 

"Post,  "Exceptions,"  4,  8  and  9.  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1044, 
et  seq.  Express  stipulation  in  the  contract,  Mackey  v.  Ames,  31  Minn.  103, 
16  N.  W.  Rep.  541 ;  by  notice,  Myers  v.  De  Meier,  4  Daly  (N.  Y.),  343;  affd., 
52  X.  Y.  647;  Emerson  v.  Roof,  66  How.  Pr.  (N.  Y.)  125;  Carrabine  v.  Cox, 
136  -Mo.  App.  370,  117  S.  W.  616;  Mansfield  v.  Wiles,  221  Mass.  75,  108  N".  E. 
901,  where  the  delay  was  caused  by  the  inability  of  the  purchaser  to  raise 
the  purchase  money.  Where  the  parties  agreed  that  the  contract  should 
be  rescinded  unless  the  title  was  perfected  by  a  certain  day  and  the  title 
was  perfected  by  a  decree  entered  on  that  day,  the  purchaser  was  required 
to  perform.  Peterson  v.  Hultz,  96  Neb.  406,  147  N.  W.  1126.  Time  will 
not  he  considered  of  the  essence  of  the  contract  unless  it  so  expressly  appears, 
or  IH  to  lie  implied  from  the  surrounding  circumstances.  King  v.  Connors.  222 
Mass.  261.  110  X.  E.  289. 

"Hepwell  v.  Knight,  1  Yo.  4  Coll.  419;  Hoyt  v.  Tuxbury,  70  111.  331. 

•1  Sugd.  Vend.  (8th  Am.  ed.)  397  (26»).  Frnzier  v.  Boggs,  37  Fla.  307, 
20  So.  Rep.  245;  Sachs  v.  Owings,  121  Va.  162,  92  S.  E.  997.  This  operates 
no  very  great  hardship  upon  the  vendor,  as,  according  to  the  generally 
prevalent  rule,  the  purchaser  could  recover  damages  only  to  the  extent  of  the 
purchase  money  paid.  Ante,  f  91. 


OF   THE   EIGHT   OF   THE  VENDOR   TO  PERFECT   THE  TITLE.       885 

ance  will  not  be  denied.61  It  is  apprehended  that  this  rule  would 
not  apply  if  the  part  to  which  the  title  had  failed,  though  small, 
was  the  principal  inducement  to  the  contract. 

If  the  purchaser  intends  to  insist  upon  time  as  a  material  ele- 
ment of  the  contract,  he  should  demand  a  title  and  offer  to  rescind 
at  the  time  fixed  for  completing  the  contract  if  the  vendor  be  un- 
able to  perform.  If  he  continues  in  possession  and  proceeds  with 
the  payment  of  the  purchase  money  after  that  time,  he  cannot,  as 
a  general  rule,  deny  the  right  of  the  vendor  to  perfect  the  title.62 
If  he  gives  time  after  the  day  fixed  for  the  performance  of  the  con- 
tract, or  encourages  the  vendor  in  his  efforts  to  perfect  the  title, 
he  will,  in  most  cases,  be  deemed  to  have  waived  the  objection  that 
time  was  material.63  The  vendor  as  well  as  the  purchaser  may 
avail  himself  of  the  objection  that  time  was  of  the  essence  of  the 
contract.  He  cannot  be  compelled  to  hold  property,  fluctuating 
in  value,  until  the  purchaser  can  pay  for  it.64  But  if  time  were 

w  1  Sugd.  Vend.  (8th  Am.  ed.)  331  (218).    Chamberlain  v.  Lee,  10  Sim.  444. 

"•Evans  v.  Boiling,  5  Ala.  550.  He  waives  the  objection  that  time  was 
material  by  retaining  the  abstract  until  after  the  expiration  of  the  time  in 
which  he  was  to  point  out  objections  to  the  title.  St.  Clair  v.  Hellweg,  173 
Mo.  App.  660,  159  S.  W.  17. 

M  Stevenson  v.  Polk,  71  Iowa,  278,  32  N.  W.  Rep.  340;  Garrison  v.  Newton, 
96  Wash.  284,  165  Pac.  90.  The  purchaser  does  not,  by  a  few  days'  indulgence 
of  the  vendor  to  enable  him  to  complete  the  title,  lose  his  right  to  insist  upon 
time  being  of  the  essence  of  the  contract.  Garrett  v.  Cohen,  117  N.  Y.  Supp. 
129,  63  Misc.  Rep.  450.  The  purchaser  cannot  take  advantage  of  a  failure  to 
furnish  a  satisfactory  abstract  within  the  time  required  by  the  contract, 
where  he  acquiesced  in  the  efforts  of  the  vendor  to  perfect  the  title  after 
the  expiration  of  that  time.  Plummer  v.  Kennington,  149  Iowa  419,  128 
N.  W.  552.  What  is  meant  by  the  maxim  that  time  is  not  of  the  essence  of 
the  contract  in  equity,  has  been  nowhere  more  clearly  stated  than  in  Mr. 
Bispham's  Principles  of  Equity  (3d  ed.),  §  391:  "A  court  of  equity  will 
relieve  against,  and  enforce  specific  performance,  notwithstanding  a  failure 
to  keep  the  dates  assigned  by  the  contract,  either  for  the  completion,  or  the 
steps  towards  completion,  if  it  can  do  justice  between  the  parties,  and  if 
there  is  nothing  in  the  express  stipulations  between  the  parties,  the  nature 
of  the  property,  or  the  surrounding  circumstances  which  would  make  it 
inequitable  to  interfere  with  and  modify  the  legal  right.  This  is  what  is 
meant  and  all  that  is  meant  when  it  is  said  that  in  equity  time  is  not  of  the 
essence  of  the  contract."  Language  of  Lord?  CAIBNS  in  Tilley  v.  Thomas,  L.  R., 
3  Ch.  App.  67. 

64  Fuller  v.  Hovey,  2  Allen  (Mass.),  325;  Goldsmith  v.  Guild,  10  Allen 
(Mass.),  239.  Here  the  contract  was  dated  March  nineteenth,  and  was  to  be 


886  MARKETABLE    TITLE    To    REAL    ESTATE. 

not  material  lie  cannot  refuse  to  convey  because  the  purchase 
money  was  not  paid  on  the  day  fixed.65  It  is  obvious  that  the  pur- 
chaser cannot  object  that  time  is  material  when  he  is  in  possession, 
and  the  failure  to  convey  is  brought  about  by  his  default  in  the 
payment  of  the  purchase  money ; M  nor  in  a  case  in  which  he 
waived  a  provision  that  time  should  be  of  the  essence  of  the 
contract.67 

And  it  has  been  held,  even  in  a  case  in  which  time  was  made  of 
the  essence  of  the  contract,  that  the  purchaser  could  not  resist  the 
payment  of  the  purchase  money  on  the  ground  that  the  vendor  had 
not  the  title  on  the  day  fixed  for  the  performance  of  the  contract, 
if  he,  the  purchaser,  failed  to  tender  the  purchase  money  on  that 
day,  and  the  vendor  afterwards  acquired  the  title  and  tendered  a 
deed  before  bringing  his  action  for  the  purchase  money.68 

If  time  be  material,  the  purchaser  may  rescind  if  there  be  in- 
cumbrances  on  the  property  which  the  vendor  cannot  remove  at 
the  time  fixed  for  performance.69  The  rule  that  the  vendor  may 
rely  on  the  purchase-money  as  a  means  of  discharging  the  incum- 
brances  does  not  apply  in  such  a  case. 

§  311.  (2)  Mutual  and  dependent  covenants.  Nor  does  the 
rule  which  permits  the  vendor  to  perfect  the  title  apply  where  the 
covenants  for  payment  of  the  purchase  money  and  delivery  of  the 
deed  are  mutual  and  dependent,  and  the  vendor,  at  the  time  fixed 
by  the  contract,  has  not  euch  title  as  he  covenanted  to  convey,70  and 

completed  in  ton  days.  The  purchaser  offered  to  perform  March  thirty-first, 
hut  the  vendor  refused.  Specific  performance  was  denied,  there  being  evidence 
that  the  value  of  the  property  had  changed.  But  in  Barnard  v.  Lee,  97  Mass. 
92,  where  the  purchase  money  was  to  have  been  paid  on  April  first,  hut  was 
not  tendered  till  the  twenty-fifth  of  the:  following  May,  specific  performance 
hy  the  vendor  was  decreed,  the  purchaser  having  in  the  meanwhile  entered 
upon  and  improved  the  land,  with  bin  knowledge  and  consent.  Brashier  v. 
Oratr,  6  Wh.  (U.  S.)  533.  See,  also,  Preabrey  v.  Kline,  20  D.  C.  513. 

•Taylor  v.  Longworth,  14  Pet.  174. 

"CasHell  v.  Cooke,  8  8.  &  R.  (Pa.)  2tf8,  11  Am.  Dec.  610. 

*Opejon  v.  Engere,  73  Wash.  324,  131  Pac.  1146. 

•Augsberg  v.  Meredith,  101  111.  App.  020. 

•Johnson  v.  Herbat.  140  Minn.  147,  167  N.  W.  356. 

"Stitxel  v.  Copp,  9  W.  4  S.  (Pa.)  20;  Magaw  v.  Lothrop,  4  W.  A  S.  (Pa.) 
321;  Clark  v.  Wei*,  87  111.  43S,  29  Am.  Rep.  60;  Tryce  v.  Dittus,  199  111. 
189,  65  N.  E.  Rep.  220;  Hudson  v.  Max  Meadows  I*  4.  I.  Cto.,  99  Va.  537, 


OF   THE   EIGHT  OF  THE   VENDOR   TO   PERFECT   THE  TITLE.       887 

this  though  no  demand  for  the  deed  was  ever  made,  the  time  for 
delivering  the  deed  having  been  specified  in  the  contract.71  But  if 
the  covenants  to  make  title  on  the  one  part,  and  to  pay  the  pur- 
chase money  on  the  other,  are  independent,  and  the  passing  of  the 
title  is  subject  to  the  payment  of  the  purchase  money  as  a  condi- 
tion precedent,  the  vendor  may,  at  any  time,  perfect  his  title  before 
the  purchase  money  is  paid,  and  it  is  no  defense  to  an.  action  for 
the  purchase  money  that  the  title  is  incomplete.72 

§  312.  (3)  Waiver  of  right.  If  the  purchaser  objects  to  the 
title  and  declares  that  he  will  not  complete  the  contract,  and  the 
seller  acquiesces,  in  the  declaration,  he  cannot  afterwards  remove 
the  objections  to  the  title  and  require  the  purchaser  to  accept  a  con- 
veyance.73 So,  e  converse,  as  we  have  seen,  a  purchaser  who  re- 
fuses to  complete  the  contract  on  account  of  a  defect  in"  the  title, 
cannot  afterwards  demand  specific  performance  by  the  vendor.74 

§  313.  (4)  Loss  and  injury  to  purchaser.  The  rule  that  the 
vendor  may  perfect  the  title1  after  the  time  fixed  for  completing  the 
contract,  does  not  apply  where  to  enforce  it  would  entail  loss  and 
injury  upon  the  purchaser,70  as  where  the  land  has  greatly  depreci- 
ated in  value  pending  the  removal  of  objections  to  the  title.76 

39  S.  E.  Rep.  215;  Meshew  v.  Southworth,  133  Mich.  335,  94  1ST.  W.  Eep. 
1047;  Williams  v.  Gilbert,  120  Minn.  299,  139*  N.  W.  502;  Whitney  Co.  v. 
Smith,  63  Oreg.  187,  126  Pac.  1000;  Reid  v.  Johnson,  121  N.  Y.  Supp.  750. 
If  the  vendor  is  not  required  by  the  contract  to  tender  a  deed  until  the  pur- 
chase money  has  been  tendered  to  him,  he  has  until  that  time  in  which  to 
perfect  his  title.  Winkler  v.  Jerrue,  129  Pac.  804. 

71  Craig  v.  Martin,  3  J.  J.  Marsh.  (Ky.)  50,  19  Am.  Dec.  157. 

"Ante,  §§  86,  253.  Robb  v.  Montgomery,  20  Johns,  (N.  Y.)  15;  Greenby 
v.  Cheevers,  9  Johns.  (N.  Y.)  126. 

73 1  Sugd.  Vend.  (Sth  Am.  ed.)  408.    Guest  v.  Homfray,  5  Ves.  818. 

74  Ante,  §  193.     Presbrey  v.  Kline,  20  D.  C.  513. 

75Maupai  v.  Jackson,  124  N.  Y.  Supp.  220,  139  App.  Div.  524.  If  the 
lapse  of  time  in  perfecting  the  title  caused'  no  material  change  in  the  subject 
matter  or  in  the  relations  of  the"  parties,  the  vendor  is  entitled  to  specific 
performance.  Begen  v.  Pettus,  140  N.  Y.  Supp.  765,  80  Misc.  Rep.  120. 

79Bisph.  Eq.  (3d  ed.)  §  394 ;  2  Beach  Mod.  Eq.  Jur.  §  495;  McKay  v.  Car- 
rington,  1  McLean  (U.  S.),  50;  Jackson  v.  Edwards,  22  Wend.  (N.  Y.)  518; 
Dutch  Church  v.  Mott,  7  Paige  Ch.  (N.  Y.)  77;  Nodine  v.  Greenfield,  7  Paige 
Ch.  (N".  Y.)  544,  34  Am.  Dec.  363;  Garnett  v.  Macon,  6  Call  (Va.),  308,  370; 
Morriss  v.  Coleman,  1  Rob.  (Va.)  478;  McAllister  v.  Harmon,  101  Va.  17; 
42  S.  E.  Rep.  920;  Hendricks  v;  Gillespie,  25  Gratt.  (Va.)  181,  in  which  case 


888  MARKETABLE    TITLE    To    BEAL    ESTATE. 

Therefore,  where  the  improvements  on  the  premises  were  destroyed 
by  fire  after  the  time  fixed  for  completing  the  contract,  and  the 
vendor  furnished  no  sufficient  excuse  for  not  tendering  a  suffi- 
cient deed  at  the  appointed  time,  it  was  held  that  he  could  not 
thereafter  claim  the  right  to  perfect  the  title.77  Injury  from  mere 
delay  in  making  title  will  not  be  presumed;  the  burden  devolves 
on  the  purchaser  to  show  that  he  has  been  or  will  be  injured  by  the 
delay.78  If  the  object  of  the  purchaser  be  to  resell,  and  by  reason 
of  a  defect  in  the  title  he  loses  an  opportunity  to  sell,  time  will  be 
deemed  of  the  essence  of  the  contract.7" 

§  314.  (5)  Fraud  of  the  vendor.  The  vendor  cannot  enforce 
the  rule  in  any  case  in  which  he  has  been  guilty  of  fraud  or  has 

the  war  of  1861-1865  intervened  between  the  purchase  of  the  land  and  the 
vendor's  suit  for  specific  performance,  so  that  the  value  of  the  land  had 
greatly  depreciated.  In  Hephurn  v.  Auld,  5  Cranch  (U.  S.),  270,  LIVINGSTON, 
J.,  observed:  "It  is  said  by  the  English  authorities  that  lapse-  of  time  may 
be  disregarded  in  equity  in  decreeing  a  specific  performance  of  a  contract  for 
the  sale  of  land.  But  there  is  a  vast  difference  between  contracts  for  land  in 
that  country  and  this.  There  the  lands  have  a  known,  fixed  and  staple  value. 
Here  the  price  is  continually  fluctuating  and  uncertain.  A  single  day  often 
makes  a  great  difference,  and  in  almost  every  case  time  is  a  very  material 
circumstance."  These  remarks  were  approved  in  Richmond  v.  Gray,  3  Allen 
(Mass.),  25,  the  court  adding:  "At  the  present  day  business  is  done  with 
such  comparative  speed,  and  changes  of  property  and  in  places  of  business  are 
BO  frequent,  that  it  would  in  most  cases  be  inequitable  to  compel  a  party  to 
accept  property  after  any  considerable  delay,  or  to  compel  him  to  keep  his 
funds  unemployed  through  fear  that  the  court  may  order  him  to  accept  it,  on 
terms  of  delay  that  he  has  never  assented  to."  In  Darrow  v.  Horton,  6  N".  Y. 
State  Rep.  718,  an  objection  to  the  title  not  having  been  removed  until  after 
the  usual  renting  period,  whereby  an  opportunity  to  rent  the  premises  was 
probably  lost,  specific  performance  at  the  suit  of  the  vendor  was  denied. 
Where  time  was  not  originally  of  the  essence  of  the  contract,  a  delay  of  two 
months  in  making  title  was  held  immaterial,  even  though  the  premises  had 
somewhat  decreased  in  value.  Tapp  v.  Nock,  (Ky.)  12  S.  W.  Rep.  713.  Delay 
of  three  months  and  twenty  days  after  last  installment  of  purchase  money 
became  due,  held  not  material,  no  injury  to  the  purchaser  being  -Imxvn. 
Wooding  v.  Crain,  10  Wash.  35,  38  Pac.  Rep.  756. 

"Smith  v.  Cansler,  83  Ky.  367. 

w  Merchants'  Bank  v.  Thompson,  55  N.  Y.  7. 

"Spaulding  v.  Fierle,  86  Hun,  17,  citing  Merchants'  Bank  v.  Thompson,  55 
N.  Y.  7,  and  Schmidt  v.  Reed,  132  N.  Y.  116,  30  N.  E.  Rep.  373,  in  neither  of 
which  cases,  however,  does  it  appear  that  an  opportunity  to  resell  had  been 
loet. 


OF   THE   RIGHT   OF   THE   VENDOR   TO   PERFECT   THE  TITLE.       889 

acted  in  bad  faith  in  respect  to  the  title.80  This  exception,  of 
course,  cannot  apply  if  the  purchaser  -bought  with  knowledge  that 
the  title  was  defective.81  The  exception  will  toe  enforced  as  well 
where  the  contract  has  been  fully  executed  as  where  it  is  executory. 
Thus,  a  covenantor  who  fraudulently  conceals  the  state  of  the  title 
cannot  compel  the  covenantee  to  accept  an  after-acquired  title  in 
satisfaction  of  the  covenants.82  But  a  mere  innocent  misrepre- 
sentation of  the  title  will  not  deprive  the  vendor  of  his  right  to  per- 
fect the  title.83  And  if  the  vendee  waives  the  fraud  <by  continuing 
in  possession  and  negotiating  with  the  vendor,  the  latter  may 
insist  upon  perfecting  the  title.84  It  has  been  said  that  if  there  is 
great  inadequacy  of  consideration,  the  vendor  will  be  strictly  held 
to  the  performance  of  the  contract  at  the  appointed  time.85 

§  315.  (6)  Want  of  colorable  title.  The  rule  does  not  apply 
where  the  vendor  had  no  power  whatever  to  sell.  The  vendor  can- 
not undertake  to  substitute  the  contract  of  a  third  person  for  his 
own.86  This  exception  will  not,  of  course,  apply  where  the  vendor 

80  Fry  Sp.  Perf.  (3d:  Am.  ed.)   §  1342.     Dalby  v.  Pullen,  1  Russ.  &  Myl.  296; 
Meeks  v.  Garner,  93  Ala.  17,  8  So.  Rep.  378;  Hickson  v.  Linggold,  47  Ala.  449; 
Fordtran  v.   Cunningham,    (Tex.    Civ.   App.)    177    S.   W.   212;    Christian   v. 
Cabell,  22  Gratt.   (.Va.)   82;  Brown  v.  Haff,  5  Paige   (N".  Y.),  241;  Easton  v. 
Montgomery,  90  Cal.  307,  27  Pac.  Rep.  280;  Moss  v.  Hanson,  17  Pa.  St.  379; 
Blackmore  v.   Shelby,  8  Humph.    (Tenn.)    4'39;    Woods  v.  North,  6  Humph. 
(Tenn.)    309,   44  Am.   Dec.   312;   Green   v.    Chandler,   25  Tex.   160;    Hall   v. 
Clountz,  (Tex.  Civ.  App.)  63  S.  W.  Rep.  941;  Spencer  v.  Sandusky,  46  W.  Va. 
582,  33  S.  E.  Rep.  221;   Hays  v.  Tribble,  3  B.  Mon.    (Ky.)    106.     But  see 
Schiffer  v.  Dietz,  83  N.  Y.  300,  and  Whitney  v.  Crouch,  172  N.  Y.  Supp.  729, 
where  a  different  view  seems  to  have  been  taken. 

81  Harris  v.   Carter.  3   Stew.    (Ala.)    233;    Teague  v.  Wade,  59   Ala.   369; 
Reeves  v.  Dickey,  10  Gratt.  (Va.)   13-8.    The  right  to  perfect  the  title  will  not 
be  conceded  where  the  defect  was  known  to  the  vendor  and  by  him  concealed 
from  the  purchaser.     Kenny  v.  Hoffman,  31  Gratt.    (Va.)    442. 

82  Ante,  §  215.    Alvarez  v.  Brarnan,  7  Cal.  503;  68  Am.  Dec.  275,  Elliott  v. 
Blair,  6  Coldw.   (Tenn.)    185;  Blackmore  v.  Shelby,  8  Humph.   (Tenn.)   438. 

8SBuford  v.  Guthrie,  14  Bush  (Ky.),  690.  Failure  of  the  vendor  to  dis- 
close the  fact  that  the  title  was  in  his  wife  was  not  a  fraud  justifying  the 
purchaser's  rejection  of  the  wife's  deed.  Crump  v.  Schneider,  246  Fed.  225; 
158  C.  C.  A.  385. 

84  Schiffer  v.  Dietz,  83  N.  Y.  300. 

S5  Seymour  v.  Delancey,  7  Paige  (N.  Y.),  445,  520,  citing  Kien  v.  Stukely,  2 
Bro.  P.  C.  396. 

86 2  Beach  Mod.  Eq.  Jur.  §  612;  Fry  Sp.  Perf.   (3d  Am.  ed.)    §  1343.     In  .-e 

112 


890  MARKETABLE    TITLE    TO    REAL    ESTATE. 

is  apparently  the  owner,  or  has  a  colorable  title."  Nor  where,  at 
the  time  of  the  sale,  he  had  the  equitable  title,  though  he  did  not 
disclose  to  the  purchaser  the  fact  that  the  legal  title  was  outstand- 
ing.88 Xor  where  the  purchaser  knew,  at  the  time  of  the  con- 
tract, that  the  vendor  did  not  own  the  land  and  would  have  to 
obtain  title,89  and  that  the  sale  was  made  subject  to  approval  by 
the  owner.90  Xor  where  the  title  fails  to  a  portion  of  the  estate 
only.91  Xor  where  the  vendor  gets  in  the  legal  title,  or  procures 
the  holder  thereof  to  join  in  a  conveyance  of  the  estate  by  the 

Bryant,  L.  R.,  44  Ch.  Div.  218.  "  The  vendor  cannot  say,  '  I  will  substitute  a 
contract  with  somebody  else,' ''  per  KAY,  J.  In  this  case  trustees  under  a  will, 
who  had  no  power  to  sell  until  the  death  of  a  life  tenant,  offered  to  perfect 
the  title  by  procuring  a  contract  to  sell  from  the  life  tenant.  The  offer  was 
refused  and  a  return  of  the  deposit  directed.  This  case  must  be  distinguished 
from  Salisbury  v.  Hatcher,  2  Yo.  &,  C.  Ch.  54,  where  a  tenant  for  life  who 
had  sold  the  fee  was  permitted  to  perfect  the  title  by  getting  the  consent 
of  the  parties  in  remainder.  See,  also,  the  remarks  of  Chief  Justice  MAB- 
MIAI.I.  in  Garnett  v.  Macon,  6  Call  (Va.i,  30S,  370.  Pipkin  v.  James,  1 
Humph.  (Tenn.)  325;  34  Am.  Dec,  652;  Oliver  v.  Dix,  1  Dev.  &  Bat.  Eq. 
(N.  C. )  158.  Where  a  husband  contracted  to  sell  in  his  own  right  property 
belonging  to  his  wife,  specific  performance  at  his  suit  was  denied,  even  though 
he  tendered  a  conveyance  in  which  his  wife  joined.  Luse  v.  Dietz,  40  Iowa, 
205.  Contra,  Chrissman  v.  Partee,  38  Ark.  31.  The  fact  that  the  premises 
have  been  sold  for  taxes  is  no  objection  to  specific  performance  at  the  suit 
of  the  vendor  if  the  right  to  redeem  has  not  expired  and  the  vendor  offers 
to  redeem;  such  a  case  is  not  a  speculation  by  the  vendor  in  a  third  person's 
title.  Ley  v.  Huber,  3  Watts  (Pa.),  367.  In  Wells  v.  Lewis,  4  Mete.  (Ky.) 
269,  it  was  held  that  a  title  under  a  deed  from  a  joint  executor,  invalid 
because  of  failure  of  the  other  executor  to  join  in  the  deed,  could  not  be  per- 
fected without  the  purchaser's  consent,  by  tendering  to  him  a  deed  from  one 
entitled  under  the  will  to  the  proceeds  of  the  sale  of  the  land. 

"Chamberlain  v.  Lee,  10  Sim.  444;  Nance  v.  Sexton,  199  Mo.  App.  461; 
203  S.  W.  640. 

"Prov.  Loan  &  Tr.  Co.  v.  Mclntonh,  (Kans.)  75  Pac.  498.  Compare  Walsh 
v.  Colvin,  53  Wash.  309;  101  Pac.  1085. 

"Olson  v.  Rogers,  173  Iowa,  331;  155  N.  W.  301.  But  in  an  action  for 
damages  against  the  vendor  for  breach  of  the  contract,  it  is  no  defence  that 
the  purchaser,  at  the  time  of  the  contract,  knew  that  the  title  was  outstanding 
in  another.  Arentnen  v.  *Moreland,  122  Win.  107;  90  X.  W.  790;  65  L.  It.  A. 
973;  Beck  v.  Stnata,  80  Neb.  482;  114  N.  W.  633;  16  L.  R.  A.  (N.  S.)  768; 
Fletcher  v.  Brewer,  88  Neb.  196;  129  N.  W.  288. 

"Weitzel  v.  Lyson,  23  S.  D.  367;  121  N.  W.  868. 

"A*  in  Dresei  v.  Jordan,  104  Mass.  407. 


OF  THE  RIGHT  OF  -THE  VENDOR  TO  PERFECT  THE  TITLE.   891 

time  fixed  for  completing  the  contract,92  especially  if  it  appear 
that  the  purchaser  did  not  rely  upon  the  existence  of  title  in  the 
vendor  at  the  time  of  the  contract.93  It  has  been  held  that  if  the 
vendor  have  only  an  equitable  title  he  will  not  be  entitled  to 
time  in  which  to  get  in  the  legal  title.  The  purchaser  cannot  be 
compelled  to  await  the  termination  of  proceedings  instituted  for 
that  purpose.94  But  of  course,  he  may  get  in  the  legal  title  if  he 
can  at  any  time  before  that  fixed  for  completing  the  contract.95 
And  if  the  purchaser  knew,  at  the  time  he  purchased,  that  the 
legal  title  was  outstanding,  and  the  contract  provides  that  the 
vendor  will  cause  a  good  and  sufficient  deed  to  be  made  to  him, 
the  purchaser  cannot  resist  specific  performance  on  the  ground 
that  the  vendor  has  only  the  equitable  title.  Such  a  case  is  not 
one  in  which  the  vendor,  acting  mala  fide,  speculates  in  the  prop- 
erty of  a  stranger.96  The  rule  that  the  vendor  may  perfect  the 
title  at  any  time  before  that  fixed  for  performance  of  the  contract, 
does  not  apply  where  the  husband  sells  the  community  estate  of 
himself  and  wife,  because  the  husband  is,  in  those  States  in  whicn 

92Dresel  v.  Jordan,  104  Mass.  414,  criticising  Hurley  v.  Brown,  98  Mass. 
547;  96  Am.  Dec.  671;  Caporale  v.  Rubine,  92  N.  J.  L.  463;  105  Atl.  226; 
White  v.  Bates,  234  111.  276;  84  N.  E.  906;  Logan  v.  Bull,  78  Ky.  607,  in 
which  case  the  legal  title  was  in  the  wife  of  the  vendor,  and  a  conveyance 
executed  by  both  husband  and  wife  was  tendered  to  the  purchaser.  But  see 
Luse  v.  Deitz,  46  Iowa,  205,  supra,  and  Ft.  Payne  Coal  &  I.  Co.  v.  Webster, 
(Mass.)  39  N".  E.  Rep.  786,  where  held  that  if  the  vendor  disable  himself  from 
performing  the  contract  by  conveying  the  premises  to  a  stranger,  the  pur- 
chaser may,  of  course,  detain  the  purchase  money.  In  Webber  v.  Stephenson, 
(Wash.)  39  Pac.  Rep.  952,  it  was  held  that  a  contract  for  the  sale  of  land 
would  not  be  rescinded  merely  because,  before  the  time  fixed  for  its  com- 
pletion, the  vendor  had  conveyed  the  premises  to  a  stranger,  since  he  might 
still  be  able  to  perform  the  contract  by  procuring  the  stranger  to  convey  to 
the  purchaser.  If  such  a  conveyance  were  made  after  the  time  fixed  for 
completing  the  contract,  there  would  seem  to  be  no  question  as  to  the  right 
of  the  purchaser  to  rescind. 

93McXary  v.  Campbell,  81  Neb.  754;  116  N.  W.  671. 

94 Dart.  Vend.  70.  Camp  v.  Morse,  5  Den.  (N.  Y.)  165;  Jones  v.  Taylor, 
7  Tex.  240;  56  Am.  Dec.  48;  Christian  v.  Cabell,  22  Orat.  (Va.)  104. 

95  Beach  Mod.  Eq.  Jur.  §  812;  Tiernan  v.  Roland,  15  Pa.  St.  429.  Townshend 
v.  Goodfellow,  40  Minn.  312. 

89  Scott  v.  Thorp.  4  Edw.  Ch.  (N.  Y.)  1;  Burks  v.  Davies,  85  Cal.  110; 
24  Pac.  Rep.  613;  Tison  v.  Smith,  8  Tex.  147;  Hunt  v.  Stearns,  5  Wash.  St. 
167;  31  Pac.  Rep.  468. 


892  MARKETABLE    TITLE    TO    REAL    ESTATE. 

such  estate  exists,  prohibited  bj  statute  from  selling  or  disposing 
of  the  same.'7  But  if  the  purchaser  buys  in.  ignorance  of  the 
nature  of  the  estate  he  will  not  be  permitted  to  rescind  if  the  wife 
offers  to  join  in  the  conveyance." 

A  provision  in  a  contract  of  sale  that  the  vendor  shall  be  allowed 
time  in  which  to  perfect  the  title,  supposes  that  he  has  a  colorable 
title  to  the  premises,  and  does  not  mean  a  reasonable  time  in  which 
to  purchase  the  estate  when  he  has  no  pretensions  to  the  title."  If 
the  vendor  takes  upon  himself  to  contract  for  the  sale  of  an  estate, 
and  is  not  the  absolute  owner  of  it,  and  has  not  the  power,  by  the 
ordinary  course  of  law  or  equity,  to  make  himself  so,  a  court  of 
equity  will  not  compel  specific  performance  by  the  purchaser, 
though  the  actual  owner  offers  to  make  the  seller  a  title ;  "  for  any 
seller  ought  to  be  a  bona  fide  contractor,"  and  it  would  tend  to 
infinite  mischief  if  an  owner  were  permitted  to  speculate  upon  the 
sale  of  another  man's  estate.1  The  rule  that  the  vendor  may,  with 
certain  exceptions,  perfect  his  title  at  any  time  before  decree,  can- 
not be  so  construed  as  to  compel  the  purchaser  to  accept  a  convey- 
ance from  a  stranger.  The  purchaser  has  a  right  to  the  securities 
afforded  by  the  covenants  of  his  vendor.2  But  if  the  purchaser 

"Hooper  v.  Jackson,  3  Wash.  Ty.  236;  3  Pac.  Rep.  841;  Hoover  v. 
Chambers,  3  Wash.  Ty.  26;  13  Pac.  Rep.  547. 

*  Coleord  v.  Leddy,  4  Wash.  St.  791 ;  31  Pac.  Rep.  320.  If  the  husband  sells 
the  wife's  land  the  purchaser  cannot  rescind  if  the  wife  ratifies  the  contract 
and  joins  in  a  conveyance.  Chrisman  v.  Partee,  38  Ark.  31  (Contra,  Luse  v. 
Deitz,  46  Iowa,  205;  Gage  v.  Cummings,  209  HI.  120;  70  N.  E.  Rep.  679). 
In  a  case  in  which  the  vendor,  who  was  to  convey  with  full  covenants,  acted 
as  agent  for  his  mother  without  disclosing  the  fact,  it  was  held  that  the 
purchaser  must  accept  a  deed  from  the  mother  with  full  covenants  of  title. 
McDonald  v.  Bach,  60  N.  Y.  Supp.  557 ;  29  Misc.  Rep.  96. 

"  Benedict  v.  Williams,  39  Minn.  77 ;  3S  N.  W.  Rep.  707 ;  Primm  v.  Wise, 
126  Iowa,  528;  102  N.  W.  Rep.  427. 

'Tendring  v.  London,  2  Eq.  ('as.  Abr.  660;  Burke  v.  Davies,  85  Cal.  110; 
24  Pac.  Rep.  613.  But  see  Backman  v.  Park,  157  Cal.  607:  108  Pac.  68fl, 
where  it  was  held  that  the  vendor  may  require  the  purchaser  to  accept  the 
deed  of  a  stranger,  citing  Joyer  v.  Shafer,  97  Cal.  335;  32  Pac.  320;  Shively 
v.  Semi-Tropic  Co.,  99  Cal.  261;  33  Pac.  848;  Hanson  v.  Fox,  155  Cal.  106; 
99  Pac.  489;  20  L.  R.  A.  (N.  8.)  338. 

•Ante.  |  18.  Weitze]  v.  Leyson,  23  S.  D.  367;  121  N.  W.  868;  Reynolds  v. 
Smith,  6  Bl.  (Ind.)  200,  the  court  saying:  "Such  a  title  as  the  purchaser 
contracted  for  he  had  a  right  to  demand,  secured  by  the  covenants  of  the 


OF  THE  RIGHT   OF  THE  VENDOR   TO   PERFECT   THE  TITLE.       893 

actually  accept  such  conveyance,  he  cannot  afterwards  refuse  to 
pay  the  purchase  money  on  the  ground  that  the  conveyance  was 
not  executed  by  his  vendor.3 

Inasmuch  as  it  is  clear  that  want  of  title  in  the  vendor  at  the 
time  of  the  sale  is  no  objection  to  specific  performance  if  he  be 
able  to  procure  the  title  by  the  time  fixed  for  completing  the  con- 
tract, no  reason  is  perceived  why  the  purchaser  should  not  be  com- 
pelled to  accept  the  conveyance  of  a  stranger  if  the  vendor  joined 
therein  with  such  covenants  for  title  as  the  purchaser  could  re- 
quire, for  this  is  in  substance  the  same  as  if  the  vendor  had  taken 
a  conveyance  to  himself,  and  thereupon  immediately  conveyed  to 
the  purchaser.  It  has  been  held,  however,  in  a  case  in  which  the 
vendor  delivered  his  own  warranty  deed  and  the  warranty  deed  of 
a  third  person,  who  held  the  legal  title,  to  the  purchaser,  but  it 
did  not  appear  that  there  had  been  a  conveyance  from  such  third 
person  to  the  vendor,  that  the  purchaser  was  justified  in  rejecting 
the  deed,  and  this  upon  the  ground  that  the  record  must  show 
title  in  the  grantor.4  The  reasons  for  this  decision  are  not  clear. 
It  is  true  that  the  purchaser  is  entitled  to  insist  that  the  title 
which  he  gets  shall  be  evidenced  as  the  law  requires,  and,  gen- 
erally, in  America,  that  the  title  shall  appear  of  record.  But  if 
he  actually  gets  the  record  title,  it  would  seem  immaterial  from 
what  source  it  comes,  provided  he  has  the  benefit  of  his  vendor's 
covenant  of  warranty. 

vendor,  and  free  from  blemish.  The  terms  of  the  contract  would  be  essentially 
varied  if  a  third  person,  without  consent,  were  substituted  to  do  that  which 
one  of  the  contracting  parties  had  bound  himself  to  perform."  In  re  Head's 
Trustees,  L.  R.,  45  Ch.  Div.  310,  the  objection  was  made  that  an  executorial 
trustee  in  that  case  had  no  authority  under  the  will  to  sell  the  testator's 
real  estate  for  the  payment  of  debts,  and  it  was  held  that  the  objection  could 
not  be  removed  by  procuring  the  beneficiaries  of  the  estate  to  join  in  a  con- 
veyance by  the  executor  after  the  time  fixed  for  completing  the  contract. 

3 Hamilton  v.  Hulett,  (Minn.)  53  K  W.  Rep.  364.  Where  the  title  was  in 
a  minor,  and  the  vendor  procured  and  tendered  a  deed  from  him,  and  the 
purchaser  accepted  such  deed,  it  was  held  that  the  contract  would  not  bt 
rescinded  thereafter,  upon  the  ground  that  the  minor  might  disaffirm  the 
deed  after  coming  of  age,  there  being  no  claim  of  fraud  or  mistake  in  the 
case.  Dentler  v.  O'Brien,  (Ark.)  19  S.  W.  Rep.  111. 

4  George  v.  Conhaim,  38  Minn.  338;  37  N.  W.  Rep.  791.  This  decision  was 
really  obiter,  the  court  having  overlooked  the  fact  that  there  had  been  a  con- 
veyance of  the  legal  title  to  the  vendor. 


894  MARKETABLE    TITLE    To    REAL    ESTATE. 

Generally,  it  may  be  stated,  that  if  a  suit  by  the  vendor  at  law  or 
in  equity,  other  than  to  compel  a  conveyance  of  the  legal  title,6  is 
necessary  to  perfect  his  title,  the  purchaser  cannot  be  compelled  to 
complete  the  contract.'  It  has  been  held  that  a  subsequent  sale 
and  conveyance  of  the  premises  by  the  vendor  to  a  stranger  is  no 
ground  for  rescission,  where  such  second  purchaser  took  with 
notice  of  the  prior  purchaser's  right.7  This  decision  deserves 
much  consideration.  Should  the  first  purchaser  be  put  to  the 
trouble  and  expense  of  compelling  specific  performance  at  the 
hands  of  the  purchaser  with  notice  ? 

Specific  performance  of  a  contract  by  two  to  convey  lands  may 
be  decreed  where  the  two  are  able  to  convey  a  complete  title  accord- 
ing to  contract,  though  neither  could  alone  do  so.8 

§  316.  (7)  Laches  of  vendor.  The  vendor  cannot  insist  upon 
his  right  to  perfect  the  title  after  the  time  fixed  for  the  completion 
of  the  contract  in  a  case  in  which  he  has  shown  great  laches  and 
want  of  diligence  in  performing  the  terms  of  the  contract  on  his 
part,  or  in  bringing  his  suit  for  specific  performance,  or  in  prose- 
cuting the  suit  after  it  has  been  institiited.9  A  party  cannot  call 

•Andrew  v.  Babcoek,  (Conn.)  26  Atl.  Rep.  715. 

•People  v.  Open  Board,  etc.,  92  N.  Y.  98;  Eggers  v.  Busch,  154  111.  604; 
39  N.  E.  Rep.  619;  Reynolds  v.  Strong,  82  Hun  (N.  Y.),  202;  31  N.  Y.  Supp. 
329. 

'Hoock  v.  Bowman,  42  Neb.  87;  60  N.  W.  Rep.  391;  Kreitsch  v.  Mertz,  119 
Mich.  343;  78  N.  W.  Rep.  124.  But  see  McCann  v.  Edwards,  6  B.  Mon.  (Ky.) 
208,  which  was  a  suit  to  enjoin  the  collection  of  the  purchase  money,  and  in 
which  time  was  allowed  a  vendor  to  file  a  cross-bill,  bringing  before  the  court 
certain  persons,  who,  it  was  alleged,  had  an  adverse  interest  in  the  premises. 
And  in  Lyons  v.  Piatt,  (N.  J.  Eq.)  26  Atl.  Rep.  334,  a  vendor  was  allowed 
forty-five  days  in  which  to  perfect  the  title  by  suit  to  compel  reformation  of 
a  deed  which  was  intended  to  convey  a  fee,  but  which,  from  want  of  words 
of  inheritance,  conveyed  only  a  life  estate. 

•  Resnick  v.  Campbell,  (X.  J.  Eq.)  69  Atl.  452. 

•Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1071.  Watts  v.  Waddle,  6  Pet.  (U.  S.)  389; 
Cotton  v.  Ward,  3  T.  B.  Mon.  (Ky.)  304,  313;  Welch  v.  Matthews,  98  Mass. 
131;  McAllister  v.  Harmon,  101  Va.  17;  42  S.  E.  Rep.  920;  Muller  v.  Palmer, 
144  Cal.  306;  77  Pac.  Rep.  964;  Harding  v.  Olsen,  177  111.  298;  52  N.  E.  Rep. 
482;  Black  Hill*  Nat.  Bank  v.  Kellogg,  4  S.  Dak.  312;  56  X.  W.  Rep.  458; 
B«gen  v.  Pettus,  129  N.  Y.  Supp.  218,  144  App.  Div.  476.  A  delay  of  one  year 
and  eight  months  by  the  vendor  in  perfecting  the  title  and  delivering  a  deed, 
held  unreasonable  in  this  case.  Thomas  v.  Seaman,  275  111.  207;  115  N.  E.  40. 
In  Kimball  v.  Bell,  49  Kans.  173;  30  Pac.  Rep.  240,  a  delay  of  seven  months 


OF  THE  EIGHT  OF  THE  VENDOR   TO   PERFECT   THE  TITLE.       895 

upon  a  court  of  equity  for  this  extraordinary  relief  "  unless  he  has 
shown  himself  ready,  desirous,  prompt  and  eager." 10  But  less  dili- 
gence is  required  of  the  vendor  in  perfecting  the  title  when  the 
purchaser  is  in  possession  than  when  he  is  not.  The  purchaser 
will  as  a  general  rule  be  deemed  to  have  waived  his  right  to  require 
a  strict  performance  on  the  part  of  the  vendor  at  the  time  fixed  for 
completing  the  contract,  if  he  take  and  retain  possession  of  the 
premises  knowing  that  the  title  is  imperfect.11 

§  317.  (8)  Effect  of  special  agreement.  The  rule  does  not 
apply,  of  course,  in  a  case  in  which  the  contract  expressly  stipulates 
that  either  party  may  rescind  in  case  of  non-performance  at  the 
specified  time ;  or  if  such  an  intention  can  be  fairly  inferred  from 
the  contract.  In  such  a  case  the  parties  themselves  have  chosen  to 
make  the  time  of  performance  material,  and  a  court  of  equity  has 
no  power  to  make  a  new  contract  for  them.12  Thus,  where  the 
vendor  agreed  to  make  a  good  title  "  on  demand,"  time  in  which  to 
perfect  the  title  after  demand  was  refused.13  If  the  contract  ex- 

by  the  vendor  in  removing  an  incumbrance  from  the  premises,  after  the  pur- 
chase money  had  been  paid  in  full,  was  held  unreasonable ;  and  the  purchaser 
was  permitted  to  recover  back  the  purchase  money.  Lyles  v.  Kirkpatrick,  9 
S.  C.  265,  the  delay  in  this  case  held  not  unreasonable. 

"Per  Lord  ALVANtEY,  M.  R.,  in  Milward  v.  Earl  of  Thanet,  5  Ves.  720, 
note. 

u  Tompkins  v.  Hyatt,  28  N.  Y.  347. 

12  2  Beach  Mod.  Eq.  Jur.  §  592.  At  one  time  it  seems  to  have  been  the  doc- 
trine of  the  equity  courts  that  time  would  not  be  deemed  of  the  essence  of 
the  contract  no  matter  how  clearly  such  an  intention  appeared  from  the  con- 
tract. Per  Lord  THUKLOW  in  Greyson  v.  Riddle,  cited  in  Seton  v.  Slade,  7 
Ves.  268,  by  Sir  SAMUEL  ROMIIXY  arguendo.  Gibson  v.  Patterson,  1  Atk.  12. 
But  the  rule  as  stated  in  the  text  has  been  long  established.  2  Story  Eq.  Jur. 
§  780;  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1046;  Bisph,  Eq.  (3d  ed.)  §  396. 
Lowery  v.  Niccolls,  11  111.  App.  450. 

"  Goetz  v.  Walter,  34  Minn.  241 ;  25  N.  W.  Rep.  404.  Refusal  by  the  pur- 
chaser to  perform  gave  the  vendor  no  right  to  recover  damages  against  him 
at  law,  where  the  vendor  had  no  other  title  than  an  interest  in  an  option  on 
the  property  involved  and  the  contract  required  that  he  should  perfect 
the  title  within  a  reasonable  time.  Thrower  v.  Logan,  137  Ga.  655;  74 
S.  E.  253.  Where  the  vendor  agreed  to  convey  a  good  title  on  demand  after 
payment  of  a  part  of  the  purchase  money  and  execution  of  securities  for  the 
balance,  it  was  held  that  he  was  entitled  to  a  reasonable  time  in  which  to 
execute  the  deed  after  demand,  but  not  to  time  in  which  to  perfect  the  title. 


896  MARKETABLE    TITLE    TO    REAL    ESTATE. 

pressly  provides  that  the  title  shall  be  made  good  within  a  speci- 
fied time,  if  it  proves  defective  the  vendor  cannot  claim  the  right  to 
perfect  the  title  after  the  expiration  of  that  time.14  But  he  has 
the  right  to  perfect  the  title  within  that  time.15  So,  also,  where 
the  contract  provided  that  the  vendor  should  have  a  reasonable 
time  in  which  to  cure  defects  in  the  title.16  As  a  general  rule 
until  the  time  fixed  for  completing  the  contract  the  purchaser 
has  a  right  to  rely  upon  the  unpaid  purchase  money  as  a  fund  with 
which  to  remove  incumbrances.  But  where  the  contract  requires 
the  vendor  to  convey  free  of  incumbrances,  he  must  discharge 
incumbrances  before  the  time  fixed  for  completing  the  contract. 
He  cannot  impose  upon  the  purchaser  the  burden  of  procuring 
releases.17  Of  course  the  specification  in  the  contract  of  a  time  at 
which  it  is  to  be  performed  will  not  of  itself  make  time  material  ;18 
it  must  appear  that  the  parties  really  intended  to  make  such  time 
an  essential  element  of  their  agreement  ;19  "  a  material  object  to 
which  they  looked  in  the  first  conception  of  it."2 

It  has  been  held  that  the  vendor  cannot  claim  the  right  to  cure 
defects  in  the  title  if  the  contract  provides  that  the  purchase  money 
shall  be  refunded  in  case  the  title,  upon  examination,  should  prove 

In  such  case  time  was  made  material  by  the  contract,  and  it  devolved  upon 
the  vendor  to  have  a  perfect  title  when  demand  was  made.  Gregory  v. 
Christian,  42  Minn.  304;  44  N.  W.  Rep.  202. 

"Mackey  v.  Ames,  31  Minn.  103;  16  N.  W.  Rep.  541.  The  contract  in  this 
case  contained  the  following  provision:  "And  it  is  agreed  that  if  the  title  of 
said  premises  is  not  good,  and  cannot  be  made  good  within  sixty  days  from 
date  hereof,  this  agreement  shall  be  void."  Joslyn  v.  Schwend,  85  Minn.  130; 
88  N.  W.  Rep.  410;  Blied  v.  Barnard,  120  Minn.  300;  130  N.  W.  714}  Depave 
v.  Rizzo,  27  Cal.  App.  200;  149  Pac.  793. 

"Heller  v.  Maguin,  261  111.  588;  104  N.  E.  158. 

"Donovan  v.  Hoenig,  157  Wise.  250;  146  N.  W.  1125. 

"Morange  v.  Morris,  42  N.  Y.  48;  Zorn  v.  McParland,  32  N.  Y.  Supp.  770. 

M  2  Beach  Mod.  Eq.  Jur.  §  592. 

"Language  of  GRAY,  J.,  in  Barnard  v.  Lee,  97  Mass.  94,  citing  Molloy  v. 
Egan,  7  Ir.  Eq.  592;  Jones  v.  Robbins,  29  Me.  351;  50  Am.  Dec.  593. 

*  Language  of  Lord  ERSKINK  in  Hearne  v.  Tenant,  13  Ves.  289.  In  Toole  v. 
Toole,  22  Abb.  N.  Cas.  (N.  Y.)  392,  specific  performance  at  the  suit  of  the 
vendor  was  refused  apparently  upon  no  other  ground  than  that  he  had  not 
perfected  the  title  by  the  time  fixed  for  the  completion  of  the  contract.  There 
is  nothing  in  the  case  to  show  that  time  was  material. 


OF   TJIE   EIGHT   OF   THE   VENDOR   TO   PERFECT   THE   TITLE.       897 

unsatisfactory  to  the  purchaser.21  Such  an  agreement,  however,  is 
implied  in  every  case  in  which  time  is  of  the  essence  of  the  con- 
tract, and  no  good  reason  is  perceived  why  the  vendor  should  be 
denied  the  right  to  perfect  his  title  where  time  is  not  material,  by 
a  mere  expression  of  what  is  implied  in  the  contract.  If  the  pur- 
chaser wishes  to  deprive  the  vendor  of  the  right  to  perfect  the  title, 
he  may  do  so  by  providing  that  time  shall  be  material.22 

If,  by  the  contract,  the  vendor  must  furnish  an  -abstract  show- 
ing good  title  in-  him  and  allow  a  reasonable  time  in  which  to 
examine  the  abstract  and  point  out  objections  to  the  title,  it  has 
been  held  that  he  cannot  insist  upon  the  right  to  cure  such  Objec- 
tions, in  the  absence  of  a  reservation  of  that  right  in  the  contract.23 

§  318.  (9)  Effect  of  notice  and  request  to  perfect  the  title. 
If  the  vendor  has  been  guilty  of  gross,  vexatious,  unreasonable  or 
unnecessary  delay  in  performing  the  contract  on  his  part  the  pur- 
chaser may  by  notice  of  a  purpose  to  rescind  in  the  alternative, 
restrict  him  to  a  reasonable  time  within  which  to  perfect  the  title.24 
And  the  vendor  has  the  same  right  with  respect  to  the  payment 
of  the  purchase  money.25  But  neither  party  can  arbitrarily  ter- 
minate the  rights  of  the  other  in  this  respect ;  the  notice  must  fix 
a  reasonable  limit.26  Thus,  a  notice  by  the  purchaser,  after 
negotiations  respecting  the  title  had  been  going  on  for  more  than 
three  years,  that  he  would  rescind  unless  a  marketable  title  were 

21  Averett  v.  Lipscomb,  76  Va.  404;  Watts  v.  Holland,  86  Va.  999;  11  S.  E. 
Rep.  1015.  In  a  case  in  which  a  deed  was  deposited  in  escrow,  with  a 
written  agreement  that  the  purchaser  might  abandon  the  sale  if  the  title 
should  not  be  found  by  the  depositary  to  be  indefeasible,  it  was  held  that  the 
vendor  had  no  right  to  perfect  the  title  by  procuring  a  release  from  a  prior 
purchaser  of  the  premises.  Fletcher  v.  'Moore,  42  Mich.  577. 

"•Mkdkey  v.  Ames,  31  Minn.  103;  16  N.  W.  Rfep.  541. 

23  Bragg  v.  Chilcote,  176  111.  App.  371. 

24Frey  Sp.  Perf.  (3d  Am.  ed.)  §  1062;  2  Bt>ach  Mod.  Eq.  Jur.  §  592. 
Prothro  v.  Smith,  6  Rich.  Eq.  (S.  C.)  324;  Mansfield  v.  Wiles,  221  Mass.  75; 
108  N.  E.  901;  Keater  v.  Ferguson,  20  S.  D.  473;  107  N".  W.  678;  129  Am. 
St.  Rep.  947. 

25  Ante,  Exception  7.  Hatch  v.  Cobb,  4  Johns.  (N.  Y.)  559.  Jackson  v. 
Ligon  3  Leigh  (Va.),  161. 

29 Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1064,  and  cases  there  cited.  Spencer  v. 
Lyman,  27  8*  D.  471  j  131  N.  W,  802. 

113 


898  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

shown  within  five  weeks,  was  held  unreasonable  and  ineffectual." 
It  is  not  necessary,  for  the  purposes  of  this  exception,  that  the 
notice  should  be  in  writing.28 

§  319.  rN  WHAT  PROCEEDINGS  THE  VENDOR  MAY  CLAIM 
THE  RIGHT  TO  PERFECT  THE  TITLE.  Obviously  the  right  of 

the  vendor  to  perfect  the  title  while  the  contract  is  executory,  may 
be  asserted  in  any  proceeding  in  equity  in  which  specific  perform- 
ance is  claimed  by  him,  or  rescission  is  sought  by  the  purchaser.29 
But  in  an  action  at  law  to  recover  back  the  purchase  money,  or  for 
breach  of  the  contract,  except  in  those  States  in  which  the  dis- 
tinction between  legal  and  equitable  procedure  is  abolished,  or  in 
which  equitable  defenses  may  be  interposed  in  actions  at  law,  it  is 
presumed  that  unless  the  vendor  had  perfected  his  title  at  the  time 
of  trial,30  he  would  be  forced  to  seek  his  relief  in  equity  by  suit  for 

••McMurray  v.  Spicer,  L.  R.,  5  Eq.  527.  Notice  on  Dec.  23d  that  title 
must  be  made  by  next  following  Jany.  1st,  held  insufficient  in  Thompson  v. 
Dulles,  5  Rich.  Eq.  (S.  C.)  370. 

"Nokes  v.  Lord  Kilmorey,  1  DeG.  &  Sm.  444. 

"Hughes  v.  McNider,  90  N.  C.  248.  On  bill  by  the  purchaser  for  rescission, 
the  vendor  should  be  allowed  a  reasonable  time  in  which  to  clear  up  the 
title.  Metcalf  v.  Dalian,  4  J.  J.  Marsh.  (Ky.)  196;  Jackson  v.  Murray,  5 
T.  B.  Mon.  (Ky.)  184;  17  Am.  Dec.  53.  The  vendor  may  remove  a  technical 
objection  to  the  title  in  a  suit  by  the  purchaser  to  enjoin  the  collection  of 
the  purchase  money.  Mays  v.  Swope,  8  Gratt.  (Va.)  46.  See,  also,  McCann 
v.  Edwards,  6  B.  Mon.  (Ky.)  2O8.  In  Hell  v.  Sternberg,  53  Kans.  571,  the 
vendor,  after  being  sued  by  the  purchaser  to  recover  back  the  purchase  money, 
was  allowed  to  perfect  the  title.  But  see  Pipkin  v.  James,  1  Humph.  (Tenn.) 
325,  34  Am.  Dec.  652,  where  it  seems  to  have  been  held  that  the  vendor  can- 
not perfect  the  title  after  a  suit  to  recover  back  the  purchase  money  has 
been  begun.  See,  also,  Lutz  v.  Comptom,  77  Wis.  584;  46  N.  W.  Rep.  889; 
Goetz  v.  Waters,  34  Minn.  241;  25  X.  W.  Rep.  404.  This  may  be  doubted; 
the  purchaser  would  always  have  it  in  his  power  to  defeat  the  vendor's 
right  to  perfect  the  title  by  bringing  an  action  to  recover  back  what  had 
been  paid.  In  Beauchamp  v.  Handley,  1  B.  Mon.  (Ky.)  136,  it  was  said 
that  a  vendor  when  sued  for  damages  for  breach  of  contract  in  failing  to 
make  title  at  the  specified  time,  is  not  obliged  to  avail  himself  of  the  defense 
that  he  has  perfected  the  title,  but  may  set  up  that  fact  as  a  defense  in  a 
MI  it  to  enjoin  him  from  collectiong  the  purchase  money;  and  that,  though 
the  judgment  for  damages  in  favor  of  the  purchaser  was  a  virtual  rescission 
of  the  contract. 

*Lutz  v.  Compton,  77  Wis.  684;  46  N.  W.  Rep.  889.  In  an  action  by  the 
vendor  to  recover  damages  against  the  vendee  for  breach  of  hia  contract  to 
exchange  lands  with  the  plaintiff,  the  latter  may  offer  in  evidence  a  deed 


OF   THE   RIGHT   OF   THE  VENDOR   TO  PERFECT   THE  TITLE.       899 

specific  performance,  or  by  injunction  against  the  purchaser's  pro- 
ceedings at  law.  In  either  case,  it  is  apprehended  that  a  judg- 
ment at  law  against  the  vendor  would  not  be  a  bar  to  the  proceed- 
ing in  equity  by  him,  claiming  the  right  to  perfect  the  title,  unless 
the  ground  of  his  application  to  equity  would  constitute  a  defense 
or  claim  of  which  he  might  have  availed  himself  at  law.  But  if 
the  vendor  goes  to  trial  at  law  insisting  upon  the  sufficiency  of  the 
title,  and  judgment  is  rendered  against  him,  it  may  be  doubted 
whether  he  would  afterwards  be  allowed  time  in  which  to  remove 
objections  to  the  title.31  But  wherever  the  distinction  between 
legal  and  equitable  procedure  has  been  swept  away,  it  is  appre- 
hended that  in  any  case  in  which  the  right  to  perfect  the  title 
exists,  and  in  any  action  by  the  vendor  to  recover  the  purchase 
money,32  or  by  the  purchaser  to  recover  back  what  has  been  paid,33 
or  to  recover  damages  for  a  breach  of  the  contract,34  except  in 
cases  of  fraud,  the  vendor  may  show  that  he  has  perfected  the  title, 
and  thereby  removed  all  ground  for  the  purchaser's  claim  or 
defense.  In  New  York,  however,  it  has  been  held  that  if  neither 
party,  in  an  action  for  damages  for  breach  of  contract  to  convey 

curing  a  defect  in  his  title,  which  wag  executed  before  the  action  was  brought. 
Burr  v.  Todd,  41  Pa.  St.  206. 

31  In  Hayes  v.  Tribble,  3  B.  Mon.  (Ky.)  106,  the  purchaser  obtained  an 
injunction  against  a  judgment  for  the  purchase  money  on  the  ground  that 
the  title  was  unmarketable.  The  defendant,  instead  of  asking  time  to  remove 
the  objections  to  the  title,  claimed  that  they  were  untenable,  and  tendered  a 
conveyance  which  the  court  below  decreed  that  the  complainant  should  ac- 
cept. This  was  reversed  on  appeal,  and  the  vendor,  defendant  having  gone  to 
trial  below  on  the  sufficiency  of  the  objections  to  the  title,  time  in  which 
to  remove  them  was  refused. 

12 As  in  Williams  v.  Porter  (Ky.),  21  S.  W.  Rep.  643  (not  officially  re- 
ported) ;  Widmer  v.  Martin,  87  Cal.  88;  25  Pac.  Rep.  264;  Keep  v.  Simpson, 
38  Tex.  203;  Lessly  v.  Morris,  9  Phila.  (Pa.)  110;  30  Leg.  Int.  108,  where 
held  that  incumbrances  might  be  removed  up  to  the  time  of  trial.  In  an 
action  for  the  purchase  money  of  land,  the  purchaser  cannot  defend  on  the 
ground  that  the  conveyance  to  him  is  defective  in  that  it  fails  to  contain 
in  the  body  thereof  the  name  of  a  party  who  signed  it,  if  at  the  trial  the 
vendor  tenders  a  deed  in  which  the  objection  is  removed.  Keeble  V.  Bank, 
(Ala.)  9  So.  Rep.  583. 

»*  Lockwood  v.  Hannibal  &  St.  J.  R.  Co.,  65  Mo.  233. 

34 In  Haynes  v.  Farley,  4  Port.  (Ala.)  528,  it  seems  to  have  been  con- 
sidered that  the  vendor  cannot  perfect  the  title  after  the  purchaser  has  begun 
an  action  to  recover  damages  for  breach  of  the  contract. 


900  MARKETABLE    TITLE    TO    REAL    ESTATE. 

free  of  incumbrances,  asks  equitable  relief,  it  will  not  avail  the 
defendant  that  incumbrances  were  removed  by  him  before  the 
trial.35 

The  collection  of  the  purchase  money  will,  of  course,  be  sus- 
pended while  the  title  is  being  perfected.3*  The  vendor  gets  in- 
terest on  the  purchase  money,  and  the  purchaser  receives  the  rents 
and  profits.37  In  some  of  the  States  a  grantee  with  covenants  for 
title  is  allowed  an  injunction  against  the  collection  of  the  purchase 
money  on  failure  of  the  title,  where  the  grantor  is  insolvent  or  a 
non-resident.38  This  relief  has  been  refused  where  the  grantor 
perfected  the  title  before  decree  in  a  suit  by  the  grantee  to  enforce 
a  lien  for  the  purchase  money  paid,  or  to  rescind  the  contract.39 

§  320.  REFERENCE  OF  TITLE  TO  MASTER  IN  CHANCERY. 
When  directed.  In  suits  for  the  specific  performance  of  contracts 
for  the  sale  of  lands,  whether  by  the  vendor  or  the  purchaser,  if 
any  question  is  made  as  to  the  ability  of  the  vendor  to  make  title, 
the  court  may,  at  the  instance  of  either  party,  refer  the  cause  to  a 
master  in  chancery,  or  other  officer  having  like  duties,  with  direc- 
tions to  inquire  and  report  to  the  court  whether  such  a  title  as  the 
contract  requires  can  be  made.40  It  is  said  that  the  purchaser  is 
entitled  to  a  reference,  even  though  he  knows  of  no  objection  to  the 
title.41  But  if  it  appear  that  the  vendor,  at  the  proper  time,  dis- 
closed a  good  title,  the  purchaser  must  pay  the  costs  of  the  in- 
quiry.42 The  reference  is  a  matter  of  right  and  may  be  directed 
without  the  consent  of  the  other  party.43  And  it  has  been  held 

"Mott  v.  Aekennan,  02  N.  Y.  539;  Higgins  v.  Eagleton,  34  N.  Y.  Supp.  325. 

"Jones  v.  Taylor,  7  Tex.  240;  56  Am.  Dec.  48. 

"  2  Bisph.  Eq.  |  392.     Post,  8  324. 

"Post,  |  331. 

"Stokes  v.  Acklen,  (Tenn.) :  4«  S.  W.  Rep.  316;  McElya  v.  Hill.  105 
Tenn.  31ft;  59  S.  W.  Rep.  1025. 

•M  Sugd.  Vend.  (8th  Am.  ed.)  526;  Fry  Sp.  Perf.  (3d  Am.  ed.)  85  1280. 
et  aeq.  Jenkins  v.  Hiles,  6  Ves.  653;  Cooper  v.  Deane,  1  VPS.  Jr.  5rtf>. 
MoComb  v.  Wright,  4  Johns.  Ch.  (N.  Y.)  659;  Beverly  v.  Lawson,  3  Munf. 
(Va.)  317. 

41  Jenkins  v.  Hiles,  6  Ves.  646;  Middleton  v.  Selby,  19  W.  Va.  167. 

•  Lyle  v.  Earl  of  Yarborough,  John.  70. 

"Atkinson  on  Marketable  Titles,  226.  Brooke  v.  Clarke,  1  Swanst.  551; 
Gentry  v.  Hamilton,  3  Ired.  Eq.  376;  Beverly  v.  Lawson,  3  Munf.  (Va.)  317. 


OF   THE  BIGHT  OF  THE  VENDOR   TO   PERFECT   THE  TITLE.       901 

error  in  the  court  to  refuse  a  reference  when  asked  by  either 
party.44 

As  a  consequence  of  the  rule  that  the  vendor  may  perfect  the 
title  at  any  time  before  a  decree  upon  the  merits,  the  inquiry  by 
the  master  is  not  whether  a  title  could  be  made  at  the  date  of  the 
contract,  or  when  the  suit  for  specific  performance  was  begun,  but 
whether  the  vendor  can  make  out  a  title  at  any  time  before  the 
master  makes  his  report.45  But  if,  from  any  cause,  such  as  a  mate- 
rial change  in  the  value  of  the  property,  it  would  be  inequitable  to 
compel  a  specific  performance  by  the  purchaser  upon  the  coming  in 
of  the  master's  report  showing  that  the  title  has  been  or  may  be 
perfected,  it  is  apprehended  that  the  vendor  could  irot  have  a 
decree. 

§  321.  When  refused.  The  court  will  not  direct  a  reference 
where  the  sale  was  of  such  title  only  as  the  vendor  might  have.48 
where  the  purchaser  has  waived  all  objections  to  the  title.47 
where  the  conditions  of  sale  provide  that  the  vendor  shall  not 
be  required  to  show  a  title.48  The  inquiry,  if  directed,  will  not  be 
extended  to  matters  expressly  excluded  by  the  terms  of  sale,  as 
where  they  provide  that  the  production  of  title  shall  begin  with  a 
particular  instrument,  or  shall  not  -be  extended  back  beyond  a  cer- 
tain period.49 

If  a  defect  in-  the  title  is  alleged,  and  has  been  prominently  put 
forward  in  the  pleadings,  the  court  may  decree  or  deny  specific 
performance  without  a  reference  to  the  master,50  as  where  the  bill 

44  Middleton  v.  Selby,  19  W.  Va.  167. 

45  Fry  Sp.  Perf.    (3*  Am.  ed.)    §   1339. 

44 Fry  Sp.  Perf.  (3d  Am.  ed.)   §§  858,  1287. 

4r  Palmer  v.  Richardson,  3  Strobh.  Eq.  (S.  C.)  16;  Fry  Sp.  Perf.  (3d  Am. 
ed.)  §§  1300,  1305.  As-  to  what  amounts  to  waiver  of  objections,  see  ante, 
Ch.  8. 

48  Hume  v.  Bentley,  5  De  G.  &  Sm.  520. 

49Corrall  v.  Cattell,  4  M.  &  W.  734. 

50 Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1280.  Tillotson  v.  Gesner,  33  N.  J.  Eq. 
313.  See  Linn  v.  McLean,  80  Ala.  360.  In  a  suit  for  specific  performance  in 
which  want  of  title  is  alleged,  if  the  court  is  satisfied*  that  the  objections  to 
the  title  exist  and*  are  well  founded,  it  will  not  direct  a  reference  to  the 
master.  Dominick  v.  Michael,  4  Sandf.  (N.  Y.)  374.  It  is  not  bound  to 
direct  a  reference  in  such  a  case.  Paslay  v.  Martin,  5  Rich.  Eq.  (S.  C.)  351  j 
Omerod  v.  Hardman,  5  Ves.  722;  Cooper  v.  Denne,  1  Ves.  565. 


902  MARKETABLE    TITLE    TO    REAL    ESTATE. 

and  answer  discloses  that  a  title  cannot  be  made.51  Where  the 
validity  of  the  title  depends  upon  a  question  of  law  and  neither 
party  asks  a  reference,  none  should  be  made;  the  court  itself 
should  decide  the  question.52  But  if  it  do  not  appear  from  the 
pleadings  that  a  title  cannot  be  made,  it  is  error  to  decree  a  rescis- 
sion of  the  contract  without  directing  a  reference.53  In  a  suit  by 
the  vendor  for  specific  performance  in  which  the  purchaser 
answered  that  the  title  was  defective,  but  did  not  ask  a  reference, 
and  the  proof  did  not  show  that  the  title  was  doubtful,  it  was  held 
that  the  court  did  not  err  in  decreeing  specific  performance  without 
referring  the  title.54  Generally  it  may  be  stated  that  the  pur- 
chaser will  not  be  entitled  to  a  reference  where  the  court  is  in 
possession  of  all  the  facts  affecting  the  title.55 

§  322.  At  what  stage  of  the  proceedings  reference  directed. 
The  inquiry  as  to  title  in  a  suit  for  specific  performance  may  be 
made,  (1)  on  motion  before  answer;  (2)  on  motion  after  the 
answer,  but  before  hearing,  and  (3)  at  the  hearing.56  In  all  these 
cases  it  seems  that  the  reference  will  be  denied  if  any  question 
involving  the  merits  other  than  the  sufficiency  of  the  title  is  to  be 
determined,  otherwise  the  court  would  fall  into  the  absurdity  of 
having  the  master's  report  on  the  title,  and  a  subsequent  decision 
that  there  is  no  subsisting  agreement.57  It  further  seems,  how- 
ever, that  the  defendant,  after  a  reference  has  been  made,  may  tile 
his  answer  setting  up  any  defense  he  pleases.58 

§  323.  Procedure.  Costs.  Testimony  as  to  all  matters  of 
fact  material  to  the  title  may  be  taken  before  the  master.8*  In 

"2  Dan.  Ch.  Pr.  1215;  Frost  v.  Brunson,  6  Yerg.   (Tenn.)   36. 

"Jackson  v.  Ligon,  3  Leigh   (Va.),  161. 

"Frost  v.  Brunson,  6  Yerg.  (Tenn.)  36.  See,  also,  Middleton  v.  Selhy. 
10  W.  Va.  1(57.  Reference  of  the  title  is  unnecessary  on  bill  by  the  purchaser 
to  rescind  if  the  defendant  does  not  allege  title  in  his  answer.  Buchanan 
v.  Alwell,  8  Humph.  (Tenn.)  516. 

*  Core  v.  Wigner.  32  W.  Va.  277 ;  9  S.  E.  Rep.  36. 

"Goddin  v.  Vaughn,  14  Orat.  (Va.)  102,  128;  Thomas  v.  Davidson,  76  Va. 
338. 

••Fry  Sp.  Perf.  (3  Am.  ed.)  Sft  1B23,  1324,  tt  *eq.  Middleton  v.  Selby, 
19  W.  Va,  175. 

"  Language  of  Lord  KLDON  in  Morgan  v.  Shaw,  2  Mer.  138. 

"Emery  v.  Pickering,  13  Sim.  583. 

"The  American  practice,  where  the  title  is  referred,  is  indicated  in  the 


OF   THE   EIGHT   OF   THE   VENDOR   TO   PERFECT   THE   TITLE.       903 

England  it  seems  that  the  master  takes  the  advice  of  conveyancing 
counsel  before  passing  on  the  title.  The  report  of  the  master 
should  state  in  terms  whether  the  title  can  or  cannot  be  made  out, 
and,  it  seems,  in  what  way  it  can  jbe  perfected.60  It  has  been  held, 
however,  that  a  report  merely  stating  that  a  good  title  could  be 
made,  was  sufficient.61  If  the  report  be  in  favor  of  the  title,  and 
no  exceptions  thereto  be  filed,  specific  performance  will,  as  a  gen- 
eral rule,  be  decreed  at  the  hearing.  If  the  report  be  against  the 
title,  and  exception  thereto  be  overruled,  the  suit  will  be  dis- 
missed.62 It  seems,  however,  that  even  after  an  exception  to  the 
report  by  the  vendor  has  been  overruled,  he  will  be  allowed  further 
time  in  which  to  remove  an  objection  to  the  title.63  If  after  con- 
firmation of  the  master's  report  a  new  fact  appear  by  which  the 
title  is  affected,  the  report  will  be  recommitted  to  the  master  for 
further  inquiry.64 

As  a  general  rule  costs  are  given  against  the  vendor  up  to  the 
time  at  which  he  first  shows  a  good  title,  since  the  inquiry  results 
from  his  default.65  But  if  the  purchaser  be  unable  to  sustain  ob- 
jections to  the  title  upon  which  the  reference  was  made,  costs  will 
be  decreed  against  him.66  Of  course  a  party  excepting  to  the 
master's  report  must  pay  the  costs  of  the  exceptions  if  they  be 
overruled.67 

following  language  of  Chancellor  KENT  in  McComb  v.  Wright,  4  Johns.  Ch. 
(N.  Y.)  659,  670:  "  I  shall  direct  the  usual  reference  to  a  master,  to  examine 
whether  a  good  title  can  be  given  by  the  plaintiffs  for  the  house  and  lot  sold 
to  the  defendants,  and  that  he  give  to  the  defendants'  solicitor  due  notice 
of  the  examination,  and  that  the  evidence  taken  in  chief  in  this  case  on  the 
point  of  title  be  submitted  to  the  master,  together  with  such  other  competent 
proof  as  the  parties,  or  either  of  them,  may  think  proper  to  furnish,  and 
that  he  report  an  abstract  of  such  title,  together  with  his  opinion  thereon, 
with  all  convenient  speed." 

60 Fry  Sp.  Perf.   (3d  Am.  ed.)    §§  1346,  1348. 

"Scott  v.  Thorp,  4  Edw.  Ch.  (N.  Y.)   1. 

82  Dart  Vend.  (5th  ed.)  1111;  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1354. 

83  Curling  v.  Flight,  2  Ph.  616;  Portman  v.  Mill,  1  Russ.  &  Myl.  696. 

64 1  Sugd.  Vend.    (8th  Am.  ed.)    526;   2  Dan.  Ch.  Pr.  1218;  Fry  Sp.  Perf. 
(3d  Am.  ed.)  §  1351.    Jendvine  v.  Alcock,  1  Mad.  597. 
85  Green  v.  Chandler,  25  Tex.  148. 
88  Phillipson  v.  Gibbon,  L.  R.,  6  Ch.  434. 
67  Scott  v.  Thorp,  4  Edw.  Ch.  (N.  Y.)    1. 


904  MABKETABLE    TITLE    TO    EEAL    ESTATE. 

§  324.    INTEREST  ON  THE  PURCHASE  MONEY  WHILE  THE 

TITLE  IS  BEING  PERFECTED.  In  equity  the  purchaser  of  an  es- 
tate is  regarded  as  the  owner  from  the  time  of  the  contract,  and, 
being  entitled  to  the  rents  and  profits,  is  required  to  pay  interest 
on  the  purchase  money  from  that  time,68  especially  if  he  be  in  the 
actual  possession  and  enjoyment  of  the  estate.69  But  if  he  be 
justified  in  declining  to  take  possession  on  the  ground  that  there 
are  material  objections  to  the  title,  he  cannot  be  compelled  to  pay 
interest.70  Nor  to  incur  the  expense  of  "  carrying  "  the  property 
pending  the  adjustment  of  a  dispute  as  to  his  obligation  to  take 
the  title.71  And,  where  a  purchaser,  finding  that  the  title  was  de- 
fective, offered  to  rescind  the  contract  and  return  the  premises 

*2  Sugd.  Vend.  (8th  Am.  ed.)  314  (627) ;  1  Warvelle  Vend.  188.  Interest 
should  be  allowed  on  the  purchase  money  only  from  the  date  of  the  decree 
declaring  the  title  to  be  marketable.  Newman  v.  Gleason,  132  La.  561 ;  61 
So.  620.  In  Haffy  v.  Lynch,  77  N.  Y.  Supp.  587;  38  Misc.  256,  a  case  in 
which  the  title  was  not  perfected  until  thirteen  years  or  more  after  the  sale, 
the  vendor,  remaining  in  possession,  was  charged  with  the  annual  rental 
value  of  the  property  and  interest  thereon,  and  penalties,  in  excess  of  legal 
interest,  on  unpaid  taxes  and  assessments;  and  the  purchaser  was  charged 
with  the  unpaid  purchase  money  and  interest  thereon  from  the  day  of  sale, 
together  with  taxes  and  assessments  levied  since  the  day  of  sale. 

•Oliver  v.  Kalian,  1  Grat.  (Va.)  298.  "If  this  rule  be  not  universal,  the 
party  who  claims  an  exemption  from  its  operation  must  bring  himself  within 
some  established  exception."  Broc-kenbrough  v.  Blyth,  3  Leigh  (Va.),  619, 
647.  A  purchaser  must  pay  interest  on  a  sum  reserved  in  his  hands  as  an 
indemnity  against  an  alleged  claim  of  dower,  he  having  had  possession  of  the 
land,  and  the  right  to  dower  not  having  been  asserted  within  the  statutory 
period  of  limitation.  Boyle  v.  Rowand,  3  Des.  (S.  C.)  553. 

W2  Sugd.  Vend.  (8th  Am.  ed.)  318  (630),  citing  Forteblow  v.  Shirley,  2 
Swan  223;  Carrodus  v.  Sharp,  20  Beav.  56;  Luckett  v.  Williamson,  37  Mo. 
388,  395,  obiter.  Kennedy  v.  Koopman,  166  Mo.  87;  65  8.  W.  Rep.  1020$ 
Faile  v.  Crawford,  52  N.  Y.  Supp.  353;  30  App.  Div.  536;  Lowther  etc.  Co. 
v.  Gunnell,  1S4  Ky.  587;  212  S.  W.  593.  It  has  been  held  that  if  the  objec- 
tion is  that  the  title  is  doubtful  only  and  not  absolutely  bad.  the  purdia-cr 
cannot  refuse  to  pay  interest  on  the  purchase  money.  Rohier  v.  Williams, 
2  Curt.  (C.  C.)  195,  199.  But  see  Hester  v.  Rockel,  2  Watts  4  S,  (Pa.)  365, 
371.  In  Selden  v.  James,  fl  Rand.  (Va.)  465,  it  was  held  that  the  prosecution 
of  an  adverse  but  groundless  claim  to  the  land  against  the  purchaser,  by 
reason  of  which  he  detained  the  purchase  money  in  his  hands,  would  not 
excuse  him  from  the  payment  of  interest,  he  being  in  possession  of  the  estate. 
This  was  a  case  in  which  the  contract  had  been  executed  by  a  conveyance. 
See,  also,  Breckenri'!-"-  v.  Hi.ke,  4  Bibb  (Ky.),  272. 

n  Steiner  v.  Presb.  Ch.,  45  N.  Y.  Supp.  624,  7  App.  Div.  500. 


OF   THE   EIGHT   OF  THE  VENDOR   TO   PERFECT   THE   TITLE.       905 

to  the  vendor,  and  the  offer  was  refused,  it  was  held  that  he  could 
not  thereafter  be  required  to  pay  interest,  even  though  he  was  in 
possession  of  the  estate.72  But,  as  a  general  rule,  the  act  of  taking 
possession  is  an  implied  agreement  to  pay  interest,73  and  "  it  must 
be  a  strong  case  and  clearly  made  out "  that  relieves  the  purchaser 
from  that  obligation,  where  he  has  received  the  rents  and  profits.74 
It  has  been  said,  however,  by  the  most  eminent  authority  that  it 
cannot  be  laid  down  as  an  absolute  rule  that  a  purchaser  by  private 
contract  shall  pay  interest  from  the  time  of  taking  possession.75 
It  seems  that  if  there  be  material  and  valid  objections  to  the  title, 
and  the  purchaser  be  obliged  to  keep  his  money  idle  and  unpro- 
ductive in  daily  expectation  of  a  perfected  title,  he  will  be  relieved 
from  the  payment  of  interest,  even  though  in  possession,76  provided 
the  vendor  was  notified  that  the  purchase  money  was  lying  dead.77 

"Rutledge  v.  Smith,  1  McCord  Ch.  (S.  C.)  402. 

73Fludyer  v.  Cocker,  12  Ves.  25;  Kutzinger  v.  Enering,  (Iowa)  174 
N.  W.  1038. 

74  Powell  v.  'Matyr,  8  Ves.   146. 

"2  Sugd.  Vend.  (8th  Am.  ed.)  317  (629).  Comer  v.  Walker,  Key.  lib.  A, 
1784,  fol.  625,  where  the  purchaser  had  heen  in  possession  twenty-two  years. 
He  was  required  to  pay  only  a  low  rate  of  interest,  such  as  he  might  have 
realized  from  securities  readily  convertible  into  money.  Where  the  purchaser 
has  been  harassed  or  disturbed  in  the  possession,  where  there  has  been  willful 
and  vexatious  delay  or  gross  or  criminal  laches  in  the  vendor,  where  there  are 
any  well-founded  doubts  of  the  title,  or  where  from  neglect,  or  other  cause, 
for  a  long  time  no  person  is  appointed  to  whom  payment  can  be  made,  it 
should  be  referred  to  a  jury  to  say  whether  the  purchaser  should  be  required 
to  pay  interest. 

75 2  Sugd.  Vend.  (8th  Am.  ed.)  315  (628).  Jenkins  v.  Fahig,  73  N.  Y.  355, 
obiter.  Osborne  v.  Bremer,  1  Des.  (S.  C.)  486;  Hunter  v.  Bales,  24  Ind.  303. 
The  presumption  is  that  the  money  is  unproductive  in  the  vendee's  hands,  and 
he  is  not  chargeable  with  interest,  unless  he  used  it,  which  use  it  devolves  on 
the  vendor  to  prove.  Hunter  v.  Bales,  24  Ind.  294,  304;  Bass  v.  Gilliland, 
5  Ala.  761.  A  purchaser  who  is  prevented  from  improving  the  land  by  a  suit 
against  his  vendor  for  recovery  of  the  land,  cannot  be  required  to  pay  interest 
pending  the  suit,  though  it  was  agreed  that  improvements  should  be  at  the 
risk  of  the  purchaser  if  the  title  should  be  attacked.  Wightman  v.  Reside, 
2  Des.  (S.  C.)  578.  A  purchaser  from  one  holding  under  color  of  title  only, 
must  pay  interest  only  from  the  time  his  vendor's  title  was  perfected  by 
adverse  possession.  Baskin  v.  Houser,  3  Pa.  St.  430. 

77  Powell  v.  Matyr,  8  Ves.  146,  where  it  was  said  by  the  master  of  the  rolls 
after  laying  down  the  general  rule  that  the  purchaser  must  pay  interest 
from  the  time  of  the  contract :  "  It  does  not  follow  that  the  mere  circum- 
114 


1HH)  MARKETABLE    TITLE    TO    REAL    ESTATE. 

Ill  such  a  case  the  purchaser  takes  the  rents  and  profits  in  satisfac- 
tion of  the  interest  he  might  have  realized  from  the  investment  of 
his  money.  To  charge  him  with  the  rents  and  profits  would  be  in 
effect  to  make  him  pay  interest  when  losing  the  interest  on  his  own 
money.  Hence,  he  cannot  be  compelled  to  pay  rent  pending  the 
vendor's  efforts  to  perfect  the  title.78  In  accordance  with  the  fore- 
going principles,  it  has  been  held  that  if  the  vendor  be  unable  to 
convey  a  good  title  when  demanded  by  the  purchaser  on  payment 
of  the  purchase  money,  and  the  latter  be  afterwards  required  to 
take  a  perfected  title,  the  vendor  must  pay  to  him  interest  on  the 
purchase  money  received.79  But  this  principle  has,  of  course,  no 
application  to  cases  in  which  the  payment  of  the  purchase  money 
and  the  execution  of  a  conveyance  is  deferred  until  some  future 
day,  unless,  upon  the  maturity  of  the  purchaser's  obligations  for 
the  purchase  money,  the  vendor  be  unable  to  convey  and  the  pur- 
chaser be  obliged  to  keep  the  money  idle  awaiting  the  tender  of 
a  perfected  title.80 

stance  that  the  vendor  was  not  ready  to  complete  the  title  at  the  day  will 
vary  the  rule.  The  purchaser  must  state  something  more  than  mere  delay, 
viz.,  that  he  has  not  had  the  benefit  of  his  money,  and  I  think  it  reasonable 
to  add  the  other  term  that  has  been  mentioned,  that  in  some  way  it  shall 
be  intimated  to  the  vendor  that  the  purchaser  has  placed  himself  in  that 
situation,  his  money  unproductive  and  to  wait  the  event,  otherwise  there  is 
no  equality.  The  one  knows  that  tlu1  estate  produces  rent,  the  other  does 
not  know  that  the  money  doen  not  produce  interest.  Wherever,  therefor?,  the 
purchaser  is  delayed  as  to  the-  title  and  means  to  insist  upon  this,  he  ought 
to  apprise  the  other  party  that  he  is  making  no  interest."  See,  alao,  Rut- 
ledge  v.  Smith,  1  McCord  Ch.  (S.  C.)  403;  Brockenbrough  v.  Blythe,  3 
Leigh  (Va.),  610. 

*  1  Sugd.  Vend.  (8th  Am.  ed.)  12  (8).  Dowson  v.  Solomon,  1  Drew.  A  S. 
1;  Aukeny  v.  Clark,  148  U.  S.  345;  Bangs  v.  Barrett,  (R.  I.)  18  All.  Rep. 
250. 

"Pierce  v.  Nichols,  1  Paige  (N.  Y.),  244. 

"  Hunter  v.  Bales,  24  Ind.  303. 


CHAPTER  XXXIII. 

OF  THE  RIGHT  OF  THE  VENDOR  TO  REQUIRE  THE  PURCHASER  TO 
TAKE  THE  TITLE  WITH  COMPENSATION   FOR  DEFECTS. 

GENERAL  RULE.      §   325. 

EXCEPTIONS.     §  326. 

INDEMNITY  AGAINST  FUTURE  LOSS.      §   327. 

§  325.  GENERAL  RULE.  The  vendor,  under  some  circum- 
stances, may  require  the  purchaser  to  take  the  property,  with  com- 
pensation for  failure  of  the  title  as  to  a  portion  of  the  premises 
not  material  to  the  due  enjoyment  of  the  remainder,  or  with  com- 
pensation for  inconsiderable  liens,  charges  or  incumbrances.1  This 

M  Sugd.  Vend.  (8th  Am.  ed.)  572  (312)  ;  Adams  Eq.  210;  Bisph.  Eq.  (3d 
ed.)  445;  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1178,  et  seq.;  2  Kent  Com.  (llth  ed.) 
475;  1  Story  Eq.  §  779;  Hepburn  v.  Auld,  5  Cranch  (U.  S.),  262;  Pratt  v. 
Campbell,  9  Cranch  (U.  S.),  494;  Cheesman  v.  Thorn,  1  Ed\v.  Ch.  (N.  Y.) 
629;  Meyers  v.  Ringler,  54  N.  Y.  Supp.  280,  34  App.  Div.  415;  Ten  Broeck 
v.  Livingston,  1  Johns.  Ch.  (N.  Y. )  357,  where  the  incumbrance  was  a  quit 
rent  of  fifty-four  cents  a  year,  of  which  the  purchaser  had  notice.  Hadlock 
v.  Williams,  10  Vt.  57-0;  Foley  v.  Crow,  37  Md.  51;  Keating  v.  Price,  58 
Md.  52;  Stoddart  v.  Smith,  5  Binney  (Pa.),  355;  Anderson  v.  Snyder,  21 
W.  Va.  632;  Creigh  v.  Boggs,  19  W.  Va.  240;  Mech.  Bank  v.  Cleland  (Ky.) 
67  S.  W.  386;  Kemper  v.  Walker,  17  Ky.  Law  R.  1100,  32  S.  W.  1093; 
Florence  Oil  Co.  v.  McCandless,  26  Colo.  534,  58  Pac.  1084;  Rollyson 
v.  Bourn,  (W.  Va.)  100  S.  E.  682;  Phinizy  v.  Guernsey,  111  Ga.  346, 
36  S.  E.  7-96,  50  L.  R.  A.  680,  78  Am.  St.  Rep.  207.  The  following 
instances  in  which  specific  performance  with  compensation  for  defects  was 
decreed  in  favor  of  the  vendor,  have  been  mentioned  by  Mr.  Fry  (Sp.  Perf. 
[3d  Am.  ed.]  §  1194)  :  "Where  an  estate  of  about  186  acres  was  described 
as  freehold,  and,  in  fact,  about  two  acres,  part  of  a  park,  were  held  only 
from  year  to  year.  Calcraft  v.  Roebuck,  1  Ves.  Jr.  221.  Where  there 
was  an  objection  to  the  title  of  six  acres  out  of  a  large  estate,  and  those 
acres  do  not  appear  to  have  been  material  to  the  enjoyment  of  the  rest. 
McQueen  v.  Farquhar,  11  Ve^.  467."  The  same  rule  applies,  of  course,  where 
the  title  to  the  entire  premises  is  good,  but  there  is  a  small  deficiency  in  the 
number  of  acres  called  for  by  the  contract.  King  v.  Wilson,  6  Beav.  124. 
Or  where  a  small  portion  of  the  property  is  not  of  the  kind  or  quality 
specified  in  the  agreement  of  sale.  Scott  v.  Hanson,  1  Russ.  &  Myl.  128.  Or 
where  a  term  for  years  is  slightly  shorter  than  that  which  the  vendor  pur- 
ported to  sell.  1  Sugd.  Vend.  (8th  Am.  ed.)  457  (299).  The  purchaser 
cannot  be  required  to  take  the  premises  if  they  are  subject  to  a  ground  rent, 
though  compensation  be  offered,  the  ground  rent  being  an  incum- 
brance incapable  or  removal  without  the  consent  of  the  incumbrancer. 

[907] 


908  MARKETABLE    TITLE    TO    REAL    ESTATE. 

rule  has  been  carried  so  far  that  a  fraudulent  misrepresentation  as 
to  the  title  of  a  small  portion  of  the  land,  not  constituting:  a  prin- 
cipal inducement  to  the  purchaser,  and  not  indispensable  to  the 
intended  purposes  of  the  whole,  has  been  held  no  ground  for  re- 
scinding the  contract.2  This  rule  has  also  been  applied  where  the 
purchaser  sought  to  rescind  an  executed  contract.  Thus,  where  by 
mistake  the  grantor  included  in  a  conveyance  of  1,269  acres,  80 
acres  to  which  he  had  no  title,  it  was  held  that  the  grantee  was  en- 
titled to  compensation  for  the  deficiency,  but  not  to  a  rescission  of 
the  contract,  the  eighty  acres  not  being  indispensable  to  the  due 
enjoyment  of  the  rest,  and  not  having  formed  a  special  inducement 
to  the  purchaser.3 

A  condition  of  sale  that  if  any  mistake  or  omission  should  be 
discovered  in  the  description  of  the  property  compensation  must  be 
accepted,  does  not  apply  to  a  defect  of  title  to  a  part  material  to  the 
enjoyment  of  the  rest.4 

"  If  that  part  to  which  the  seller  has  a  title  was  the  purchaser's 
principal  object,  or  equally  his  object  with  the  part  to  which  a  title 
cannot  be  made,  and  is  itself  an  independent  subject  and  not  likely 
to  be  injured  by  the  other  part,  equity  will  compel  the  purchaser  to 
take  it  at  a  proportionate  price,"  and  an  inquiry  will  be  directed  as 
to  whether  the  part  to  which  a  title  cannot  be  made  is  material  to 
the  possession  and  enjoyment  of  the  rest  of  the  estate.5  Where  the 
purchaser  entered  into  the  contract  with  knowledge  that  there  was 
a  trifling  incumbrance  on  the  property,  namely,  a  reservation  of  a 
yearly  rental  of  one  pound  of  wheat,  specific  performance  by  the 
purchaser  was  decreed  without  compensation.' 

As  a  general  rule,  an  acknowledged  and  undisputed  charge  or 

Cans  v.  Ronshaw.  2  Barr  (Pa.),  34,  44  Am.  Dec.  152.  The  existence 
of  a  highway  on  the  land  at  best  only  entitled  the  purchaser  to  a 
reduction  of  the  purchase  money  by  the  amount  that  such  highway  reduces 
the  value  of  the  tract.  Beach  v.  Hudson  R.  Land  Co.,  65  N.  J.  Eq.  426. 
50  Atl.  157. 

'Coffee  v.  Newson,  2  G«.  442.     But  see,  post,  this  chapter,  Exception  6, 
I  326. 

*  Key  v.  Jennings,  66  Mo.  356. 
4  1  Hugd.  Vend.  478. 

*  1  Sugd.  Vend.  (8th  Am.  ed.)   477. 
•Winne  v.  Reynolds,  8  Paige  (N.  Y.),  407. 


RIGHT   OF   THE   VENDOR COMPENSATION    FOR   DEFECTS.       909 

incumbrance  of  a  pecuniary  nature  upon  the  premises  is  no  valid 
objection  to  specific  performance,  since  the  purchase  money  may  be 
applied  to  the  discharge  of  the  incumbrance,  either  under  the  direc- 
tion of  the  court  or  by  the  purchaser  himself,  who  thereupon  is  sub- 
rogated  to  the  right  of  the  incumbrancer.7  But  specific  perform- 
ance by  the  purchaser  cannot  be  compelled  if  the  incumbrance 
exceed  the  unpaid  purchase  money,8  unless,  of  course,  the  pur- 
chaser assumed  the  payment  of  the  incumbrance  as  part  of  the 
consideration  of  the  contract. 

Of  course  if  the  contract  stipulates  that  there  shall  be  a  deduc- 
tion from  the  purchase  money  if  the  title  to  a  part  of  the  premises 
should  fail,  the  purchaser  cannot,  in  the  absence  of  fraud,  imposi- 
tion or  gross  mistake,  upon  failure  of  title  to  part  of  the  premises, 
demand  a  rescission  of  the  contract  as  to  the  other  part.9  The  pur- 
chaser cannot  refuse  to  complete  the  contract  because,  before  the 
execution  of  a  conveyance,  a  part  of  the  premises  had  been  taken 
in  condemnation  proceedings.  He  becomes  in  equity  the  owner  of 
the  land  as  soon  as  the  contract  of  sale  is  made,  and  entitled  to 
compensation  from  those  at  whose  instance  the  land  was  con- 
demned.10 A  partial  restriction  upon  the  purchaser's  power  of 
alienation,  such  as  a  pre-emption  right  of  purchase  in  the  original 
owner  for  a  specified  time,  or  a  fine  in  case  of  alienation,  does  not 
justify  the  purchaser  in  refusing  specific  performance,  but  dimin- 
ishes the  value  of  the  property,  and  entitles  him  to  a  compensa- 
tion.11 If  the  purchaser  has  waived  his  right  to  rescind  the  con- 
tract where  the  title  is  defective,  he  cannot  refuse  to  pay  the  pur- 
chase money,  with  compensation  or  abatement  as  to  that  portion  of 
the  premises  to  which  the  vendor  has  no  title.12  He  will  be  deemed 
to  have  waived  that  right  if  he  purchased  with  knowledge  that  the 
title  to  a  portion  of  the  premises  was  defective.13 

T  Ante,  §§  245,  305.  The  existence  of  a  water  tax  on  the  premises  is  no 
ground  for  rescission.  The  purchaser  must  take  the  title  with  an  abatement 
of  the  purchase  money.  Cogswell  v.  Boehm,  5  N.  Y.  Supp.  67. 

8  Hinckley  v.  Smith,  51  N.  Y.  21. 

"Harris  v.  Granger,  4  B.  Mon.   (Ky.)   369. 

10Kuhn  v.  Freeman,  15  Kans.  423. 

"Winne  v.  Reynolds,  6  Paige  (N.  Y.),  407. 

M  Hancock  v.  Bramlett,  85  N.  C.  393. 

>cKimmel  v.  Scott,   (Neb.)  52  N.  W.  Rep.  371. 


910  MARKETABLE    TITLE    To    HEAL    ESTATE. 

In  the  English  practice  the  conditions  of  sale  usually  provide 
that  any  description,  mistake  or  error  in  the  particulars,  shall  not 
avoid  the  sale,  but  shall  be  the  subject  of  compensation ;  and  the 
conditions  usually  fix  the  mode  in  which  the  amount  of  compensa- 
tion shall  be  determined.  A  condition  that  no  compensation  shall 
be  allowed  the  purchaser  for  defects,  applies  only  to  trivial  errors.14 

We  have  seen  that  when  a  purchaser  elects  to  complete  the  con- 
tract with  compensation  for  a  part  to  which  title  cannot  be  ob- 
tained, compensation  is  to  be  decreed  according  to  the  relative  and 
not  the  average  value  of  the  part  lost.15  .No  reason  is  perceived 
why  the  same  rule  should  not  apply  when  he  is  required  to  com- 
plete the  contract  with  compensation.  Where,  however,  the  vendor 
sold  2,000  acres  and  included  in  his  conveyance  39  acres  to  which 
he  hud  no  title  and  which  was  not  included  within  the  boundaries 
of  the  premises  sold,  it  was  held  that  the  purchase  money  must  be 
abated  according  to  the  contract  price  per  acre,  and  not  according 
to  the  relative  value  of  the  thirty-nine  acres.16 

Where  the  right  of  the  vendor  to  require  the  purchaser  to  take 
the  title  with  compensation  for  defects,  exists,  it  cannot  be  enforced 
in  an  action  to  recover  the  purchase  money,  or  for  a  breach  of  the 
contract,  or  in  any  other  proceeding  at  law.  At  law  the  contract  is 
an  entirety  and  can  only  be  enforced  as  such.  The  remedy  of  the 
vendor  is  exclusively  in  equity.17 

Objections  to  the  title  which,  if  well  founded,  could  result  only 

"Dart  Vend.  A  P.  (5th  ed.)  134.  Whittemore  v.  Whittemore,  L.  R.,  8  Eq. 
003.  The  cases  in  which  the  common  condition  of  sale  requiring  the  pur- 
chaser to  take  the  property  with  compensation  for  defects  do  not  apply  have 
been  thus  classified  by  Mr.  Dart  (V.  &  P.  f  5th  ed.]  138)  :  1.  Where  the  prop- 
erty is  not  of  the  same  description  as  it  appears  to  he  in  the  particulars  of 
sale.  2.  Where  the  property,  as  described,  is  not  identical  with  that  intended 
to  be  sold.  3.  Where  a  material  part  of  the  property  described  has  no  exist- 
ence, or  cannot  be  found;  or  where  no  title  can  be  shown  to  it.  4.  Where 
the  misdescription  is  upon  a  point  material  to  the  due  enjoyment  of  the 
property.  5.  Where  the  misdescription  an  to  quantity  is  so  serious  that  il 
is  no  longer  a  fit  subject  for  compensation.  6.  Where  the  mindescription  in 
of  such  a  nature  that  the  amount  of  the  compensation  cannot  be  estimated. 

"Ante.  I  170. 

"  Stockton  v.  Union  Oil  Co.,  4  W.  Va.  73. 

nl  Sugd.  Vend.  (8th  Am.  ed.)  417  (314).    Shaw  v.  Vincent,  64  N.  C.  000. 


EIGHT    OF   THE   VENDOR COMPENSATION    FOE   DEFECTS.       911 

in  a  trifling  loss  to  the  purchaser  will  be  disregarded  on  the  prin- 
ciple de  minimis  lex  non  curat.18 

§  326.  EXCEPTIONS  TO  THE  RULE.  (1)  The  rule  that  the 
purchaser  may  be  compelled  to  accept  the  title  with  compensation, 
applies  only  where  the  title  is  good  as  to  part,  and  bad  as  to  part. 
If  the  objection  go  to  the  whole  title,  he  can  in -no  case  be  required 
to  accept  the  property  with  indemnity  against  eviction.19 

(2)  The  contract  cannot  be  specifically  enforced  in  part  and 
rescinded  in  part.  It  must  either  be  rescinded  in  whole,  or  specific 
performance  decreed  with  compensation  for  an  inconsiderable  part 
to  which  the  title  fails.20  This  exception  does  not  apply  where  the 
purchase  is  of  several  lots  at  auction,  and  the  titles  to  some  are 
bad.21  The  purchaser  must  take  a  conveyance  of  those  to  which 

18Huber  v.  Johnson,  174  Ky.  697,  192  S.  W.  821,  in  which  case  the  loss 
would  have  been  about  $25. 

19 1  Sugd.  Vend.  ( 8th  Am.  ed. )  573.  Balmanno  v.  Lumley,  1  Ves.  &  Bea. 
224 ;  Paton  v.  Brebner,  1  Bligh,  42 ;  Nouaille  v.  Flight,  7  Beav.  521 ;  Blake  V. 
Phinn,  3  C.  B.  976. 

20  Bailey  v.  James,  11  Grat.  (Va.)  468,  62  Am.  Dec.  659;  Jopling  v. 
Dooley,  1  Yerg.  (Tenn.)  289,  24  Am.  Dec.  450;  Reed  v.  Noe,  9  Yerg.  (Tenn.) 
283;  Galloway  v.  Bradshaw,  5  Sneed  (Tenn.),  70;  McKinney  v.  Watts,  3  A. 
K.  Marsh.  (Ky.)  268;  Bryan  v.  Read,  1  Dev.  &  B.  Eq.  (N.  C.)  78;  Wilson 
V.  Brumfield,  8  Bl.  ( Ind. )  146 ;  Johnson  v.  Houghton,  19  Ind.  359 ;  Rector  v. 
Price,  1  Mo.  373;  Christian  v.  Stanley,  23  Ga.  26;  York  v.  Gregg,  9  Tex.  85; 
Ankeny  v.  Clark,  138  U.  S.  345. 

11  Van  Epps  v.  Schenectady,  12  Johns.  (N.  Y.)  436;  Poole  v.  Shergold,  2 
Bro.  C.  C.  118;  Stoddard  v.  Smith,  5  Binney  (Pa.),  355;  Foley  v.  Crow, 
37  Md.  51;  Waters  v.  Travis,  9  Johns.  (1ST.  Y.)  450.  If  the  title  fail  to  one 
of  two  purchased  lots,  both  of  which  were  necessary  to  the  purchaser's  uses, 
he  cannot  be  compelled  to  take  the  other  lot.  Shriver  v.  Shriver,  86  N.  Y. 
575.  In  Osborne  v.  Breman,  1  Des.  (S.  C.)  485,  several  lots  adjoining  each 
other  were  sold  separately  at  auction.  Title  to  one  of  the  principal  lots 
failed,  but  there  being  no  evidence  that  this  lot  was  the  principal  inducement 
to  the  purchase,  the  purchaser  was  compelled  to  complete  the  contract.  If 
two  distinct  portions  of  land  are  sold  as  one  tract,  a  good  title  to  both  must 
be  shown  in  order  to  sustain  an  action  against  the  purchaser  for  refusing 
to  complete  the  contract.  Barton  v.  Bouvien,  1  Phila.  (Pa.)  523.  When  a 
tract  of  land,  divided  into  city  lots,  is  sold  in  separate  parcels,  a  defect  in 
the  title  to  one  lot  or  parcel  does  not  affect  the  sale  of  the  other  parcels,  but 
a  defect  in  the  title  to  any  one  of  several  lots  sold  as  one  parcel,  avoids  the 
sale  of  the  entire  parcel.  Mott  v.  Mott,  68  N.  Y.  246.  A  clause  in  a  contract 
for  the  sale  of  lots  abutting  on  a  street  shown  on  a  map  of  a  subdivision, 
provided  that  if  title  failed  to  any  of  the  lots  the  contract  should  be  deemed 


912  MARKETABLE    TITLE    TO    REAL    ESTATE. 

the  title  is  good,  unless  the  lots  to  which  the  title  is  bad  are  neces- 
sary to  the  enjoyment  of  the  rest.22  If  a  person  purchases  at  an 
auction  several  distinct  though  adjacent  parcels  of  land,  separately 
described  in  the  advertisement  of  sale  and  separately  sold,  signing 
a  separate  memorandum  of  the  purchase  of  each  which  contains 
the  terms  of  the  sale,  the  purchase  of  each  parcel  constitutes  a  dis- 
tinct contract,  and  the  inability  of  the  vendor  to  make  title  or  per- 
form the  contract  as  to  one  of  the  parcels  will  not  relieve  the  pur- 
chaser from  his  obligation  to  pay  the  purchase  price  and  accept  a 
conveyance  of  the  other  parcels.28 

(3)  The  purchaser  cannot  be  required  to  complete  the  contract 
with  compensation  or  abatement  of  the  purchase  money  if  the  title 
has  failed  to  a  considerable  portion  of  the  property,24  or  to  a  part 
which  is  indispensable  to  the  due  enjoyment  and  intended  purposes 
of  the  residua25  But  a  failure  of  title  to  an  inconsiderable  or  dis- 

severable,  and  the  compensation  should  abate  pro  tanto.  Held,  not  applicable 
to  a  defect  consisting  in  the  want  of  dedication  of  the  street  to  public  uses. 
Cleveland  v.  Bergen  B.  4  I.  Co.,  (N.  J.  Eq.)  55  Atl.  117. 

"1  Sugd.  Vend.  (8th  Am.  ed.)  484.  Emerson  v.  Hiles,  2  Taunt.  38; 
James  v.  Shore,  1  Star.  426;  Baldry  v.  Parker,  2  B.  &  C.  37;  Roots  v. 
Dormer,  4  B.  A  Ad.  77;  Seaton  v.  Booth,  4  Ad.  &  El.  528.  Compare  Gosman 
v.  Pfistner,  80  N.  J.  Eq.  432,  83  Atl.  781. 

n  Wells  v.  Day,  124  Mass.  38.  So  held  where  the  sale  was  private  and  the 
contract  provided  that  failure  of  the  title  to  one  of  the  parcels  should  not 
work  a  forfeiture  as  to  the  other  parcels.  Sage  L.  &  I.  Co.  v.  McGowan,  30 
Cal.  App.  120,  157  Pac.  244. 

14 1  Sugd.  Vend.  (8th  Am.  ed.)  479;  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1182; 
2  Kent  Com.  475;  Boyce  v.  Grundy,  3  Pet.  (U.  S.)  210;  Hayes  v.  Skidmore, 
27  Ohio  St.  331;  Groves  v.  Stouder,  58  Okl.  744,  161  Pac.  239;  Burwell  v. 
Sollock,  (Tex.  Civ.  App.)  32  S.  W.  Rep.  844;  Newman  v.  Maclin,  5  Hayw. 
(Tenn.)  241;  Reed  v.  Noe,  9  Yerg.  (Tenn.)  282,  where  the  title  to  twenty- 
five  acres  out  of  fifty  was  defective.  Cunningham  v.  Sharp,  11  Humph. 
(Tenn.)  116;  Terrell  v.  Farrar,  1  Miss.  417,  where  title  to  only  half  of  the 
property  purchased  could  be  had.  In  Morgan  v.  Brnst,  34  W.  Va.  332,  12 
S.  E.  Rep.  710,  the  purchaser  was  compelled  to  accept  title  with  compensa- 
tion for  a  deficiency  of  20  acrea  out  of  254,  average  value.  The  purchaser 
cannot  be  required  to  take  the  title  where  the  vendor  had  previously  sold 
the  mineral  rights  in  the  land  to  another.  Eversolc  v.  Everaole,  27  Ky. 
Law  Rep.  385,  85  S.  W.  Rep.  186;  Davis  v.  Watson,  89  Mo.  App.  15. 

"Authorities  cited.  Ante,  f  325,  n.  1.  Parham  v.  Randolph,  5  Miss.  435, 
35  Am.  Dec.  403;  Jackson  v.  Ligon,  3  Leigh  (Va.),  161.  where  the  part  to 
which  title  failed  was  separated  from  the  re*t  by  a  public  road.  A  familiar 
illustration  of  thin  exception  in  the  caw  in  which  a  wharfinger  bought  a 


EIGHT   OF   THE   VENDOR COMPENSATION    FOR   DEFECTS.       913 

pensable  portion  of  the  property,26  or  the  existence  of  a  trifling 
charge  or  incumbrance  upon  the  premises,27  or  a  trifling  deficiency 
in  the  quantity  of  the  land  to  be  conveyed,28  is  no  ground  for  refus- 
ing specific  performance  with  compensation.  Compensation  can- 
not be  decreed  if  there  be  no  accurate  and  certain  means  of  deter- 
mining the  amount  of  compensation  to  be  allowed,29  such  for  ex- 
wharf  and  a  jetty  protecting  it,  and  it  afterwards  appeared  that  the  jetty 
was  liable  to  be  removed  by  the  municipal  authorities.  It  was  held  that  he 
could  not  be  compelled  to  take  the  wharf  with  compensation  for  the  loss  of 
the  jetty.  Peers  v.  Lambert,  7  Beav.  546.  So,  also,  in  Keating  v.  Price, 
58  51d.  532,  where  a  purchase  of  twenty  acres  was  made  in  order  to  get  pos- 
session of  an  acre  and  a  half  at  a  particular  point  as  a  factory  site.  Title 
to  the  acre  and  a'  half  having  failed,  the  purchaser  was  not  required  to  accept 
the  remainder  with  compensation.  Where  the  vendor  of  a  house  and  lot 
was  unable  to  make  title  to  a  small  strip  of  land  between  the  house  and  the 
highway,  from  which  passers-by  could  look  in  at  the  window,  it  was  held 
that  the  purchaser  could  not  be  compelled  to  accept  the  residue  with  com- 
pensation. 1  Sugd.  Vend.  478.  Perkins  v.  Ede,  16  Beav.  193. 

2'Tomlinson  v.  Savage,  6  Ired.  Eq.  (N.  C.)  430,  where  a  deficiency  of  17% 
out  of  350  acres  was  deemed  immaterial.  Reynolds  v.  Vance,  4  Bibb  (Ky. ), 
213;  Buck  v.  McCaughtry,  5  T.  B.  Mon.  (Ky.)  216,  deficiency  of  50  acres  out 
of  800  deemed  immaterial. 

27 Fry  Sp.  Perf.  (3d  Am.  ed.)  &§  1188,  1196.  In  Guynet  v.  Mantel,  4  Duer 
(X.  Y. ),  86,  the  purchase  price  of  the  property  was  $50,000,  and  the  purchaser 
took  possession  with  notice  that  there  was  an  outstanding  incumbrance  on  the 
property  of  $1,000.  Specific  performance  by  the  vendor,  with  compensation  or 
allowance  for  the  incumbrance,  was  decreed.  A  deficiency  of  twenty-one  acres 
of  land  in  a  tract  of  400  acres,  not  material  to  the  enjoyment  of  the  rest,  may 
be  compensated,  and  affords  no  ground  for  rescission.  Cotes  v.  Raleigh,  1  T. 
B.  Mon.  (Ky.)  164.  A  small  and  trifling  charge  on  the  land  for  the  main- 
tenance of  a  division  fence,  being  the  subject  of  compensation,  is  no  ground 
for  resisting  specific  performance.  Keating  v.  Gunther,  10  N.  Y.  Supp. 
(1ST.  Y.)  734. 

28  Keepers  v.  Yocum,  84  Kan.  554,  114  Pac.  1063. 

29 In  Evans  v.  Kingsberry,  2  Rand.  (Va.)  120,  14  Am.  Dec.  779,  a  husband 
sold  an  estate  in  which  the  wife  had  a  life  interest  in  case  she  survived  him, 
but  in  which  he  had  the  entire  interest  in  case  he  survived.  The  purchaser 
refused  to  take  the  property,  and  specific  performance  with  compensation  was 
denied,  the  court  saying  that  the  contingency  of  the  wife  surviving  the  hus- 
band, and  in  that  event  becoming  entitled  to  a  moiety  of  the  land  for  her  life, 
was  such  a  defect  of  title  as  could  not  be  compensated,  since  there  was  no 
rule  by  which  the  compensation  could  be  estimated.  But  see  ante,  §  199. 
There  is  no  means  of  ascertaining  the  present  value  of  an  estate  devised  to  a 
widow  for  life  but  defeasible,  except  as  to  dower,  upon  her  re-marriage. 
Scheu  v.  Lehning,  31  Hun  (N.  Y.),  183. 
115 


914  MARKETABLE    TITLE    TO    REAL    ESTATE. 

ample  as  in  the  case  of  a  building  restriction  binding  the  purchaser, 
or  a  restriction  as  to  {he  uses  to  which  the  premises  shall  be  put.30 
The  encroachment  of  the  walls  of  a  building  a  couple  of  inches 
on  the  building  line  of  a  street  has  been  held  no  case  for  compensa- 
tion, and  the  purchaser  was  excused  from  performing  the  contract.31 
On  the  other  hand,  a  deficiency  of  fourteen  inches  in  a  frontage 
of  seventy-five  feet  was  held  a  case  for  compensation  and  not  for 
rescission,  the  fourteen  inches  not  being  indispensable  to  the  due 
enjoyment  and  intended  use  of  the  premises.32  Obviously,  the 
question  whether  the  purchaser  must  take  the  title  with  compen- 
sation, or  may  rescind  the  contract,  depends  upon  the  circum- 
stances of  each  particular  case.  Specific  performance  is  a  matter 
of  grace,  and  will  neither  be  enforced  in  one  case  nor  denied  in 
another  unless  equity  and  good  conscience  so  require.  It  is  in- 
cumbent upon  the  purchaser  to  show  that  the  part  to  which  title 
has  failed  was  material  to  the  proper  use  and  enjoyment  of  the 
rest,  or  formed  a  special  inducement  to  the  purchase.33 

(4)  The  purchaser  cannot  be  compelled  to  accept  an  estate  of  a 
different  tenure  from  that  which  he  purchased;  thus,  if  he  pur- 
chases a  freehold,  he  cannot  be  compelled  to  accept  a  lesser  estate 
as  a  copyhold  or  a  leasehold.34 

Where  the  contract  provided  that  the  vendors  should  begin  and 
prosecute  to  final  judgment  a  suit  to  recover  possession  of  a  part 
of  the  premises,  the  purchase  money  to  be  abated  in  case  of  inabil- 
ity to  recover  in  such  suit,  and  the  vendor  failed  to  bring  the  suit, 
specific  performance  with  abatement  of  the  purchase  money,  at  the 
suit  of  the  vendors,  was  refused.11 

"Adams  v.  Valentine,  63  Fed.  Rep.  1   (X.  Y.). 

n  Smithers  v.  Steiner,  34  N.  Y.  Supp.  678.  See,  also,  the  following 
encroachment  cases,  in  which  the  purchaser  was  excused:  McPherson  v. 
Srhade,  28  X.  Y.  Supp.  659,  S  Misc.  Rep.  424,  one  and  one-half  inches; 
Smith  v.  McCool,  22  Hun  (X.  Y.),  505,  five  inches;  Arnstein  v.  Burroughs. 
27  X.  Y.  Supp.  958,  two  inches;  Bowie  v.  lirahe.  4  Duer  (X.  Y.),  676,  one 
and  seven-eighths  inches.  Sec.  also.  King  v.  Knapp.  59  X.  Y.  462;  Stokes  v. 
Johnson,  57  X.  Y.  673;  \Vehster  v.  Trust  Co.,  145  X.  Y.  275,  39  X.  E.  Rep. 
904. 

"Kelly  v.  Brower,  7  X.  Y.   Supp.  752. 

"Keating  v.   Pri.-e.  58  Mil.  532. 

••1   Sugd.  Y*-nd.   (Sth  Am.  ed.t   4«1. 

"\Yold  v.  Xewgaard,  123  I  own,  233,  98  X.  \V.  Rep.  640. 


RIGHT    OF    THE   VENDOR COMPENSATION    FOR   DEFECTS.       915 

(5)  Where  the  vendor  has  only  a  joint  interest  or  interests  in 
the  estate,  he  cannot  compel  the  purchaser  to  accept  the  shares  he 
actually  has  with  a  deduction  for  those  he  does  not  own.36     In 
some  cases,  however,  the  purchaser  has  been  compelled  to  take  a 
different  interest  from  that  which  the  vendor  undertook  to  sell.37 
If  the  purchase  be  from  tenants  in  common  and  one  of  them  die, 
the  survivors  cannot  compel  the  purchaser  to  accept  their  shares 
unless  he  can  procure  the  share  of  the  deceased  tenant.38 

(6)  The  purchaser  cannot  be  required  to  take  the  title  with 
compensation  for  defects  in  a  case  where  the  vendor  has  been 
guilty  of  fraud  in  the  sale.39 

(7)  If  the  vendor  turns  the  purchaser  out  of  possession,  he 
thereby  rescinds  the  contract  and  cannot  afterwards  require  a 
specific  performance  with  compensation  for  defects.40 

§  327.  INDEMNITY  AGAINST  FUTURE  LOSS.  As  a  general 
rule  a  purchaser  can  neither  require  nor  be  compelled  to  accept  a 
conveyance  with  indemnity  against  possible  loss  in  the  future  from 
a  defect  in  the  title  to  the  estate.41  An  apparent  exception  to  the 

38 1  Sugd.  Vend.    (8th  Am.  ed.)   4SO  (31G). 

37  Id.  457    (299). 

38  1  Sugd.  Vend.   (8th  Am.  ed.)   480;   1  Story  Eq.  Jur.  §  7TS.     Atty.-Gen.  v. 
Day,  1  Ves.  218. 

39  Fry  Sp.  Perf.   (3d  Am.  ed.)    §  1192;  Harris  v.  Granger,  4  B.  Mon.   (Ky.) 
369;  Isaacs  v.  Skrainka,  95  Mo.  517,  8  S.  W.  Rep.  427.     But  see  Coffee  v. 
Xewsom,    2   Ga.    442,    a    case    apparently   at   variance    with   the    foregoing 
authorities. 

40 1  Sugd.  Vend.  (8th  Am.  ed.)  523;  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1193; 
Knatchbull  v.  Grueber,  1  Ves.  Jr.  224. 

41 1  Sugd.  Vend.  (8th  Am.  ed.)  467,  475;  Fry  Sp.  Perf.  (3d  Am.  ed.) 
£§  1190,  1245;  Batten  Sp.  Perf.  67,  Law  Lib.  171;  Balmano  v.  Lumley, 
1  Ves.  &  Bea.  224;  Aylett  V.  Ashton,  1  Myl.  &  Cr.  105;  Paton  v.  Brabner, 
1  Bligh  42,  66;  Ridgway  v.  Gray,  1  Mac.  &  G.  109;  Powell  v.  So.  Wales 
R.  Co.,  1  Jur.  (X.  S.)  773;  Bryan  v.  Read,  1  Dev.  &  Bat.  Eq.  (X.  C.)  78,  86; 
Wilson  v.  Zajicek,  (Tex.  Civ.  App.)  36  S.  W.  Rep.  1080;  Weaver  v.  Esary, 
78  Wash.  640,  139  Pac.  607;  Barickman  v.  Kuykendall,  6  Bl.  (Ind.)  21, 
where  the  guardian  of  a  minor,  one  of  several  heirs  selling  an  estate,  offered 
the  purchaser  a  bond  with  security,  conditioned  that  the  minor  should 
convey  when  he  came  of  age.  In  Rife  v.  Lybarger,  49  Ohio  St.  422,  31  X.  E. 
Rep.  768,  in  a  decree  for  specific  performance  against  a  purchaser,  provision 
was  made  for  his  indemnity  against  an  old,  uncanceled  mortgage.  This 
is  an  interesting  case.  The  purchaser  bought  during  the  fever  and  excite- 
ment of  a  "  boom "  in  city  property,  but  finding  a  mortgage  on  the  prem- 


916  MARKETABLE    TITLE    TO    REAL    ESTATE. 

rule  that  he  cannot  demand  an  indemnity  exists  in  those  cases  in 
which  he  is  permitted  to  detain  a  part  of  the  purchase  money  as  an 
indemnity  against  the  possible  consummation  of  an  inchoate  right 
of  dower  in  the  premises.42  But  it  is  believed  that  there  is  no  well- 
considered  case  in  which  the  purchaser  has  been  forced  to  take  a 
defective  title  with  indemnity  against  possible  loss  from  the  defect. 
Hence,  it  has  been  frequently  held  that  a  purchaser  cannot  be  com- 
pelled to  accept  title  with  indemnity  against  an  inchoate  right  of 
dower  in  the  premises,"  or  against  the  enforcement  of  an  incum- 
brance  on  the  property.44  Of  course,  if  the  contract  provide  for 
indemnity  it  may  be  required.45 

ises  refused  to  complete  the  purchase.  The  "boom"  subsided,  and  within 
four  weeks  after  the  contract  should  have  been  completed  the  value  of  the 
property  shrank  nearly  one-half.  Releases  from  the  personal  representatives 
and  heirs  of  the  mortgagee  were  procured  and  filed  by  the  vendor,  but  the 
purchaser  still  objected  to  the  title  on  the  ground  that  the  right  to  enforce 
the  mortgage  might  be  outstanding  in  an  assignee.  Specific  performance  by 
him  was  decreed,  with  indemnity  against  this  possibility.  The  case  seems 
at  variance  with  the  general  rule  established  by  the  authorities  above.  In 
Simpson  v.  Hawkins,  1  Dana  (Ky.),  303,  a  case  in  which  the  contract  had 
been  executed  by  a  conveyance  with  covenants  for  title,  it  was  held  that  the 
grantor  might  be  required  to  provide  an  indemnity  against  the  possible  re- 
opening of  a  decree  against  a  non-resident  adverse  claimant. 

"Ante,  §  199.  Young  v.  Paul,  10  N.  J.  Eq.  415,  64  Am.  Dec.  456.  In 
Jackson  v.  Edwards,  7  Paige  Ch.  (N.  Y.)  386,  a  purchaser  at  a  partition 
sale  declined  to  complete  the  contract  on  the  ground  that  the  wife  of  one  of 
the  parceners  had  a  contingent  right  of  dower  in  the  premises.  But  the 
court  held  that  under  the  laws  of  ^"ew  York  the  value  of  that  interest  might 
be  ascertained  by  means  of  the  life  tables  and  commuted  at  a  certain  sum 
to  be  abated  from  the  purchase  money,  and  invested  under  the  direction  of 
the  court  for  the  benefit  of  the  wife.  But,  obviously,  thh  is  a  case  in  which 
the  purchaser  is  compelled  to  take  the  title  with  an  abatement  of  the  pur- 
i  h:i-r  money,  and  not  a  mere  indemnity. 

41  Ante,  $  109.  Peters  v.  Delaplaine,  49  N.  Y.  362;  Trimmer  v.  Gorman, 
129  N.  C.  161,  3»  8.  E.  Rep.  804.  See,  also,  Prescott  v.  Trueman,  4  Mass. 
029,  3  Am.  Dec.  249;  Shearer  v.  Ranger,  22  Pick.  (Mass.)  447;  Smith  v. 
Cornell,  32  Me.  126;  Holmes  v.  Holmes.  12  Barb.  (X.  Y.)  137;  Henderson  v. 
Henderson,  13  Mo.  152.  Contra,  Obernyce  v.  Obertz,  17  Ohio,  71;  Manson  v. 
Brimfield  Mfg.  Co.,  3  Mason  (C.  C.),  855;  Blair  v.  Rankin,  11  Miss.  440. 

44  Smith  v.  Browning,  157  N.  Y.  Supp.  71;   171  App.  Div.  278. 

•Aylett  v.  Ashton,  1  Myl.  &  Cr.  105;  Rulgway  v.  Gray,  1  Mac.  &  G.  109; 
Milligan  v.  Cooke,  16  Yes.  1;  Walker  v.  Barnes,  3  Mad.  247  (132)  ;  I'aterson 
T.  Long,  6  Beav.  568}  Rosa  v.  Boards,  8  Ad.  &  El.  290. 


RESCISSION  BY  PROCEEDINGS  IN  EQUITY  WHERE  ME  CONTRACT 
HAS  BEEN   EXECUTED. 

CHAPTER  XXXIV. 

OF  THE  REMEDY  BY  INJUNCTION   AGAINST  THE   COLLECTION  OF 
THE  PURCHASE  MONEY. 

GENERAL  OBSERVATIONS.    §  328. 
FRAUD  ON  THE  PART  OF  THE  GRANTOR.     §  329. 
WANT  OF  OPPORTUNITY  TO  DEFEND  AT  LAW.    §  330. 
INSOLVENCY  OR  NON-RESIDENCE  OF  GRANTOR.     §    331. 
WHERE  THE  ESTATE  IS  INCUMBERED.    §  332. 
FORECLOSURE   OF   PURCHASE-MONEY   MORTGAGE.     §    333. 
WHERE  THERE  ARE   NO  COVENANTS.     §   334. 
TEMPORARY  AND  PERPETUAL  INJUNCTIONS.     §   335. 
RESUME.    §  336. 

WHERE  THERE  IS  NO  PRESENT  RIGHT  TO  RECOVER  SUBSTAN- 
TIAL DAMAGES  FOR  BREACH  OF  THE  COVENANTS.    §  337. 

§  328.  GENERAL  OBSERVATIONS.  The  jurisdiction  of  equity 
to  restrain  the  collection  of  the  purchase  money  where  the  title  has 
failed  is  frequently  revoked,  either  upon  the  ground  that  there  is  no 
adequate  remedy  at  law,  or  that  the  plaintiff  has  not  had  or  cannot 
have  an  opportunity  to  avail  himself  of  that  remedy.  The  pur- 
chaser may  have  been  deprived  of  his  defense  at  law  by  fraud, 
accident  or  mistake ;  or  the  facts  constituting  his  defense  may  not 
have  transpired  until  after  judgment  was  recovered  against  him; 
as  where  he  was  evicted  after  judgment  for  the  purchase  money. 
Or  he  may  have  had,  for  other  reasons,  no  opportunity  of  making 
a  defense  at  law ;  as  where  the  vendor  seeks  to  foreclose  a  deed  of 
trust  or  other  security  for  the  purchase  money,  in  the  enforcement 
of  which  no  legal  proceedings  are  required.1  So  far  as  the  cove- 
nants of  warranty,  or  for  quiet  enjoyment  are  concerned,  there  can 
be  no  doubt  of  the  adequacy  of  the  remedy  at  law  as  soon  as  a  right 
of  action  upon  them  occurs.  In  contemplation  of  law  no  wrong- 
arises  out  of  a  mere  failure  of  the  title  without  an  eviction  or  dis- 
turbance of  the  possession  where  these  are  the  only  covenants 

1  As  to  the  remedy  by  injunction,  where  the  contract  is  executory,  see 
ante,  §  520. 

[917] 


918  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

taken;  consequently  there  being  no  wrong  there  is  no  remedy. 
After  a  breach  of  these  covenants  has  occurred,  the  remedy  is 
ample  and  complete.  But  with  respect  to  the  covenants  of  seisin 
and  against  incunibranees  a  different  view  may  prevail;  for  while 
the  right  of  action  upon  them  is  complete  as  soon  as  they  are  made, 
if  the  title  be  outstanding  in  a  stranger  or  the  estate  be  encum- 
bered, unless  he  has  been  evicted  in  the  one  case  or  has  discharged 
the  incumbrance  in  the  other,  he  has,  according  to  the  rule  gener- 
ally prevailing  in  the  United  States,  no  right  to  recover  substantial 
damages  for  the  breach,  and,  consequently,  nothing  to  offer  in 
defense  of  an  action  for  the  purchase  money.  In  that  respect, 
therefore,  the  remedy  at  law  upon  those  covenants,  while  existing, 
would  seem  inadequate;2  and  the  covenantee  has  in  some  cases 
been  permitted  to  enjoin  the  collection  of  the  purchase  money  until 

•There  are  dicta  in  several  cases  which  would  tend  to  establish  a  different 
principle  from  that  stated  here,  namely,  that  the  remedy  at  law  upon  the 
covenant  of  seisin  is  complete  and  adequate  immediately  upon  the  execution 
of  the  conveyance  and  covenant  if  the  vendor  have  no  title,  because  there  is 
then  a  breach  of  that  covenant  for  which  the  covenantee  may  recover  dam- 
ages; and  that  the  remedy  at  law  upon  the  covenant  of  warranty  is  incom- 
plete and  inadequate  because  there  can  be  no  recovery  of  damages  until  an 
eviction  occurs.  Ingram  v.  Morgan,  4  Humph.  (Tenn.)  66,  40  Am.  Dec.  626: 
Baird  v.  Goodrich,  5  Heisk.  (Tenn.)  20;  Leird  v.  Abernethy,  10  Ileiak. 
(Tenn.)  636;  Koger  v.  Kane.  5  Leigh  (Va.),  606,  608.  It  is  submitted  with 
diffidence  that  these  cases  are  open  to  criticism  in  two  particulars:  First, 
in  assuming  that  substantial  damages  for  a  breach  of  the  covenant  of  seisin 
may  be  recovered  where  there  has  been  no  eviction  or  disturbance  of  the 
possession.  This  is  directly  opposed  to  the  weight  of  American  authority. 
Rawle  Covts.  for  Title  (5th  ed.),  ch.  9.  And,  second,  in  declaring  that  the 
remedy  at  law  on  the  covenant  of  warranty  is  incomplete  because  no  damages 
can  be  recovered  until  eviction.  In  contemplation  of  law,  ao  far  as  this 
covenant  is  concerned,  want  of  title  in  the  grantor  constitutes  no  injury  to 
the  covenantee  unless  it  results  in  an  eviction;  and  until  eviction,  there  being 
no  wrong  at  law,  there  is  no  remedy.  To  say  then  that  the  remedy  at  law 
before  eviction  is  inadequate  is  to  produce  the  illogical  result,  that  the 
remedy  at  law  is  inadequate  in  a  case  in  which  there  is  neither  wrong  nor 
vetuedy.  It  is  true  that  in  such  a  case  there  may  be  room  for  the  "  quia 
ti»\ct"  jurisdiction  of  equity,  but  this  is  founded  upon  the  possibility  of  an 
injury  to  the  complainant  in  the  future  and  not  upon  a  present  wrong  which 
requires  compensation  or  redress.  2  Story  Eq.  (13th  ed.)  fi  826.  The  fore- 
going observations,  so  far  as  they  relate  to  the  covenant  of  seisin,  appear  to 
be  in  accord  with  the  opinion  of  Air.  iUiwle  (Lovta.  for  Title  [5th  ed.], 
|  378). 


KEMEDY  BY  INJUNCTION COLLECTION  OF  PURCHASE  MONEY.       919 

the  defendant  should  remove  an  incumbrance  from  the  land ; 3  and, 
in  others,  upon  a  complete  and  undoubted  failure  of  the  title  and 
insolvency  of  the  vendor,  has  been  held  entitled  to  a  perpetual 
injunction,  upon  condition  that  he  reconvey  the  premises  to  the 
grantor.4 

The  right  of  the  covenantor  to  an  injunction  against  proceed- 
ings to  collect  the  purchase  money  may  be  conveniently  considered 
with  respect  to  the  following  circumstances: 

1.  Where  the  covenantor  made  fraudulent  representations  re- 
specting the  title. 

2.  Where  there  is  a  present  right  to  recover  substantial  damages 
for  breach  of  the  covenants  for  title,  and  there  has  been  no  oppor- 
tunity to  defend  at  law. 

3.  Where  there  has  been  no  such  breach  of  the  covenants  for  title 
as  to  give  a  present  right  to  recover  substantial  damages  at  law, 
but  suit  is  being  actually  prosecuted  or  threatened  by  an  adverse 
claimant  or  incumbrancer,  and  the  covenantor  is  either  insolvent 
or  a  non-resident. 

4.  Where  there  is  no  present  right  to  recover  substantial  dam- 
ages on  the  covenants,  but  there  is  a  clear  outstanding  title  in  a 
stranger. 

§  329.  FRAUD  ON  THE  PART  OF  THE  GRANTOR.  1.  Where 
the  covenantor  was  guilty  of  fraud  with,  respect  to  the  title.  Actual 
fraud  by  the  vendor  in  a  contract  for  the  sale  of  lands,  unless 
waived  by  the  vendee,  seems  to  be  at  all  times  ground  for  enjoining 
the  collection  of  the  purchase  money,  whether  there  has  or  has  not 
been  a  breach  of  the  covenants  for  title.5  Indeed,  where  there  is 
such  fraud  an  injunction  will  be  granted,  though  there  are  no 
covenants  for  title.6  The  same  rule  applies  in  a  case  of  mistake 

•Post,  §  332. 

4  Jackson  v.  Norton,  6  Cal.  187,  5  Ca*.  262.  This  is  the  rule  in  Virginia, 
except  that  no  reconveyance  of  the  premises  is  required  and  no  importance 
seems  to  have  been  given  to  the  solvency  of  the  covenantor  as  respects  the 
right  to  the  injunction.  Post,  §  337. 

6 High  on  Injunctions  (3d  ed.),  289;  Rawle  Covts.  (5th  ed.)  §  372;  Fitch 
v.  Polke,  7  Bl.  (Ind.)  565;  Eeed  v.  Tioga  Mfg.  Co.,  66  Ind.  21. 

*  In  Houston  v.  Henley,  2  Del.  Ch.  248,  the  purchaser,  through  the  fraudu- 
lent representations  of  the  vendor,  had  accepted  a  conveyance  without  cove- 
nants for  title,  and  was  permitted  to  enjoin  proceedings  to  collect  the  pur- 
chase money,  until  the  vendor  should  perfect  the  title. 


920  MARKETABLE    TITLE    TO    REAL    ESTATE. 

as  to  the  premises  sold  and  conveyed.7  And  inasmuch  &$  a  court 
of  equity  is  always  open  for  the  abrogation  and  rescission  of  a 
contract  procured  by  fraud,  it  would  seem  that  the  collection  of 
the  purchase  money  in  such  case  might  be  enjoined,  whether  the 
facts  alleged  would  or  would  not  avail,  or  have  availed,  the  cove- 
nantee  at  law,  as  a  defense  to  an  action  for  the  purchase  money. 
It  has  been  held,  however,  that  fraud  is  no  ground  for  an  injunc- 
tion to  stay  an  action  on  an  obligation  for  the  purchase  money 
not  under  seal,  since  the  fraud  may  be  set  up  in  defense  of  an 
action,  and  the  remedy  at  law  in  that  respect  is  complete.8  If  this 
be  true  no  reason  is  perceived  why  the  same  rule  would  not  apply 
in  those  States  in  which  the  defendant  is  permitted  to  set  up 
equitable  defenses  in  an  action  on  a  sealed  instrument.  But  these 
decisions  do  not  appear  to  have  been  generally  followed  in  the 
American  States.  The  fact  that  the  purchaser  has  a  remedy  at 
law  by  action  to  recover  damages  caused  by  the  vendor's  deceit, 
has  been  held  no  ground  for  refusing  an  injunction  to  stay  the 
collection  of  the  purchase  money.9  If  the  purchaser  sets  up  fraud 
as  a  defense  in  an  action  for  the  purchase  money  and  fails,  he 
cannot  afterwards  avail  himself  of  the  same  matter  in  equity  by 
way  of  injunction  against  the  judgment  so  obtained.10 

T  Spurr  v.  Benedict,  99  Mass.  463,  where  the  conveyance  (quit  claim)  did 
not  include  lands  which  were  pointed  out  to  the  buyer  as  belonging  to  the 
vendor,  but  to  which  he  had  no  title,  and  which  were  not  included  in  the 
conveyance. 

*  Barkham-stead  v.  Case,  5  Conn.  528,  13  Am.  Dec.  92;  Moore  v.  Ellsworth, 
3  Conn.  403. 

•Ransom  v.  Shuler,  8  Ired.  Eq.  (X.  C.)  307,  the  court  saying:  "Admitting 
that  he  might  recover  damages  in  an  action  at  law  for  the  deceit,  yet  that 
would  not  impair  his  right  to  equitable  relief,  since  that  and  the  legal  remedy 
are  not  of  the  same  nature,  but  the  latter  may  be,  and  generally  ia,  that  the 
vendor  cannot,  with  a  good  conscience,  coerce  the  payment  of  the  whole  pur- 
chase money,  and  leave  the  vendee  to  pursue  a  personal  action  at  law  for  the 
uncertain  damages  which  a  jury  might  assess  for  the  fraud  in  selling  what 
did  not  belong  to  the  vendor:  but,  on  the  contrary,  the  vendee  has  the  right 
of  withholding  so  much  of  the  purchase  money  (because  to  that  extent  the 
consideration  ha*  failed)  as  a  security  in  his  own  hands  against  the  loss 
impending  over  him."  Compare  dictum  in  Hammatt  v.  Emerson,  27  Me.  300. 

"Johnson  v.  Jones,  13  Sin.  &  M.  (Mm.)  580;  Thomas  v.  Phillips,  4  8m. 
«L  M.  (Miss.)  368.  Cf.  Allen  v.  Hopson,  1  Freeni.  Ch.  (Miss.)  276. 


KEHEDY  BY  INJUNCTION COLLECTION  OF  PURCHASE  MONEY.       921 

§  330.  WANT  OF  OPPORTUNITY  TO  DEFEND  AT  LAW. 

2.  Where  there  is  a  present  right  to  recover  substantial  damages 
for  breach  of  the  covenants  for  title,  and  there  has  been  no  oppor- 
tunity to  defend  at  law.  If  the  application  for  an  injunction  be 
made  before  judgment  and  the  bill  shows  facts  which  may  be 
availed  of  as  a  defense  to  the  action  by  way  of  recoupment,  coun- 
terclaim or  set-off,  there  is  no  ground  for  the  interposition  oi" 
equity,  and  the  injunction  should  be  denied.11  So,  also,  if  the 
application  be  made  after  judgment,  and  the  facts  presented  would 
have  been  a  complete  defense  at  law.12  But  if  by  fraud,  accident 
or  mistake  the  covenantee  has  been  deprived  of  his  opportunity  to 
defend  at  law,  or  if  no  such  opportunity  existed  or  exists,  as  where 
the  right  to  damages  arose  after  the  judgment  had  been  recovered, 

"Hopper  v.  Lutkin,  3  Gr.  Ch.  (N.  J.)  149.  In  Tone  v.  Brace,  Clarke  Ch. 
(N".  Y. )  291,  the  action  was  to  recover  rent  for  the  year  1839  on  a  lease  ter- 
minating in  1842.  The  lessee  prayed  an  injunction  on  the  ground  that  he  had 
been  evicted  in  January,  1840,  and  asking  to  have  his  damages  set  off  against 
the  rent.  The  injunction  was  dissolved  on  the  ground  that  the  remedy  on  the 
covenants  in  the  lease  was  complete. 

"Xelms  v.  Prewitt,  37  Ala.  389;  Wray  v.  Furniss,  27  AUu  471;  Shipp  v. 
Wheless,  33  Miss.  647.  The  contract  was  executory  in  this  case,  but  the  prin- 
ciple remains  the  same.  Ricker  v.  Pratt,  48  Ind.  73.  Allen  v.  Thornton,  51 
Ga.  594;  Desvergers  v.  Willis,  58  Ga.  388,  21  Am.  Rep.  289;  Kibler  v.  Cure- 
ton,  Rich.  Eq.  Cas.  (S.  C.)  143.  In  Woodruff  v.  Bunce,  9  Paige  Ch.  (N.  Y.) 
443,  38  A  in.  Dec.  559,  it  seems  to  have  been  assumed  that  if  the  covenantee 
had  been  evicted  and  the  covenantor  is  insolvent,  the  former  will  at  any  time 
be  awarded  an  injunction  to  stay  the  collection  of  the  purchase  money.  This 
is  true  if  the  eviction  occurred  after  judgment,  and  that,  too,  whether  the 
vendor  was  or  was  not  insolvent.  If,  however,  the  eviction  occurred  before 
judgment,  and  the  covenantee  might  have  set  up  that  defense  by  way  of  re- 
coupment or  counterclaim,  but  neglected  to  do  so,  there  might  be  a  grave 
doubt  as  to  his  right  to  involve  the  covenantor  in  the  expense  of  a  chancery 
suit,  notwithstanding  the  insolvency  of  the  latter.  And  especially  would  the 
right  to  an  injunction  against  an  assignee  of  the  covenantor  seem  doubtful 
under  these  circumstances.  Indeed,  the  insolvency  of  the  covenantor  seems 
immaterial  to  the  question  of  the  right  to  an  injunction  to  stay  the  collection 
of  the  purchase  money,  except  in  those  cases  in  which  no  present  right  of 
action  on  the  covenant  of  warranty  exists,  and-  the  complainant  is  invoking 
the  "  quia  timet "  jurisdiction  of  equity.  If  the  covenantee  should  be  evicted 
from  the  premises  after  the  recovery  of  a  judgment  against  himself  for  the 
purchase  money,  he  may  enjoin  the  judgment  if  the  covenantor  or  his 
estate  is  insolvent  and  the  defense  of  failure  of  title  could  not  have  been 
made  in  the  action  for  the  purchase  money.  Wray  v.  Furniss,  27  Ala.  471. 

116 


922  MAItKETABLE    TITLE    To    KKAL    ESTATE. 

or  where  the  covenantor  seeks  to  enforce  a  security  for  the  pur- 
chase money,  without  legal  proceedings,  then,  and  in  all  such  cases, 
the  covenantee  may  be  enjoined  from  any  further  proceeding, 
either  to  collect  his  judgment  or  to  enforce  such  security."  So, 
also,  where  at  the  time  of  the  judgment  the  covenantee  was  ig- 
norant of  the  facts  which  would  have  constituted  a  defense  to  the 
action."  It  may  be  observed  generally,  however,  that  an  injunc- 
tion to  stay  the  collection  of  the  purchase  money,  whether  before 
or  after  judgment,  will  not  be  granted  unless  the  complainant 
shows  that  for  some  reason  his  legal  remedy  on  the  covenants  for 
title  will  be  unavailing.15 

§  331.  INSOLVENCY  OR  NON-RESIDENCE  OF  THE  GRANTOR. 
3.  ]Yhere  there  has  been  no  such  breach  of  the  covenants  for  title 
as  to  give  a  present  right  to  recover  substantial  damages  at  law, 
but  suit  is  being  actually  prosecuted  or  threatened  by  an  adverse 
claimant  or  incumbrancer,  and  the  covenantor  is  either  insolvent 
or  a  non-resident.  Strictly  speaking,  it  cannot  be  said  that  there  is 
no  remedy  at  law  on  the  covenants  for  title  in  these  cases,  for  in 
contemplation  of  law  nothing  has  occurred  of  which  the  covenantee 
can  complain  as  respects  the  covenants  of  warranty  and  for  quiet 
enjoyment;  nor  can  there  be  any  ground  for  complaint  at  law 
until  an  eviction  occurs.16  But  the  covenantor  being  insolvent  or 
a  non-resident,  judgment  for  the  covenantee  will  be  worthless  when 
the  right  of  action  at  law  shall  have  accrued.  Hence  arises  the 
jurisdiction  in  equity  for  a  bill  of  injunction  "  quia  timet,"  that  is, 
"because  he  fears  some  future  probable  injury  to  his  rights  or 
interests,  and  not  because  an  injury  has  already  occurred  which 

"Kingsbury  v.  Milner,  69  Ala.  502:  Luokett  v.  Triplett,  2  B.  Mon.  (Ky.) 
39;  Coster  v.  Monroe  Mfg.  Co.,  1  Or.  Ch.  (N.  J.)  476. 

"Fitch  v.  Polke,  7  Bl.  (Ind.)  665,  the  court  saying:  "We  are  satisfied 
that  this  is  a  proper  case  for  the  interference  of  a  court  of  equity.  It  ap- 
pear* that  the  complainant  \vns  deceived  by  the  false  representations  of  the 
vendor  as  to  his  title,  and  that  he  remained  ignorant  of  the  fact  that  the 
vendor  had  not  a  good  tit'<  until  after  the  rendition  of  the  judgment  nt  law. 
This  excuse  for  not  defending  at  law  was  sufficient  to  authorize  the  inter- 
ference of  a  court  of  equity."  Citing  Williams  v.  Lee,  3  Atk.  223;  Simpson 
v.  Hart,  1  Johns.  Ch.  (N.  V.)  98. 

"Haggin  v.  Oliver,  5  J.  J.  M.  (Ky.)  237. 

'•Ante,  |   144. 


REMEDY  BY  INJUNCTION COLLECTION  OF  PURCHASE  MONEY.       923 

requires  any  compensation  or  other  relief." 17  Accordingly  in 
many  cases,  injunctions  .against  proceedings  to  collect  the  pur- 
chase money  have  been  granted  upon  allegations  of  the  actual 
pendency18  or  threatened  prosecution19  of  a  suit  by  an  adverse 
claimant  against  the  covenantee,  and  that  the  covenantor,  because 
of  insolvency20  or  non-residence,21  cannot  be  compelled  to  respond 

17  2  Story  Eq.  (13th  ed.)  §  826. 

18 High  on  Injunctions  (3d  ed.),  §  400;  Eawle  Covts.  (5th  ed.)  §§  372, 
375.  The  earliest  case  in  which  this  doctrine,  or  at  least  a  part  of  it,  was 
applied  was  that  of  Johnson  v.  Gere,  2  Johns.  Ch.  (N.  Y.)  546,  decided  by 
Chancellor  KENT  in  1817.  The  authority  of  this  case  has  been  denied  in 
N"ew  York  and  elsewhere,  but  it  is  to  be  observed  that  it  was  neither  alleged 
in  the  bill  nor  shown  that  the  covenantor  was  a  non-resident  or  insolvent, 
nor  that  for  any  other  reason,  the  complainant's  remedy  upon  the  covenants, 
when  it  should  accrue,  would  be  insufficient  for  his  protection.  There  are 
many  cases  which  decide  that  an  injunction  against  proceedings  to  collect  the 
purchase  money  will  not  be  granted  where  the  covenantee  has  not  been  dis- 
turbed in  his  possession  by  an  adverse  claimant,  but  few  which  refuse  the 
injunction  where  it  was  shown  that  the  covenantor  was  a  non-resident  or 
insolvent,  and  that  suit  by  the  adverse  claimant  was  being  prosecuted  or 
threatened.  Legett  v.  McCarty,  3  Edw.  Ch.  (X.  Y.)'l26,  obiter;  Edwards  v. 
Bodine,  26  Wend.  (X.  Y.)  114,  obiter;  Shannon  v.  Marselis,  Saxt.  (N.  J.) 
413,  425;  Van  Riper  v.  Williams,  1  Green  Ch.  (N.  J.)  407;  Van  Waggoner 
v.  McEwen,  1  Green  Ch.  (N.  J.)  412;  Green  v.  Whipple,  1  Beas.  Ch.  (N.  J.) 
50;  Coster  v.  Monroe  Mfg.  Co.,  1  Green  Ch.  (X.  J.)  467;  Jaques  v.  Esler, 
3  Gr.  Ch.  (N.  J.)  462;  Hile  v.  Davison,  5  C.  E.  Gr.  (N.  J.)  228;  Fehre  v. 
Turner,  77  Ind.  530,  overruling  Strong  v.  Downing,  34  Ind.  300. 

Ia  Harding  v.  Commercial  Loan  Co.,  84  111.  251,  260,  obiter. 

20Warvelle  on  Vendors,  937;  Rawle  Covts.  (5th  ed.)  §  380;  Walton  v. 
Bonham,  24  Ala.  513;  Wray  v.  Furniss,  27  Ala.  471.  In  Magee  v.  McMillan, 
30  Ala.  420,  relief  was  denied  on  the  ground  that  insolvency  of  the  vendor 
was  not  alleged.  Heflin  v.  Phillips,  (Ala.)  11  So.  Rep.  729;  Frank  v.  Riggs, 
93  Ala.  252,  9  So.  Rep.  359;  Gilham  v.  Walker,  135  Ala.  459,  33.  So.  Rep. 
537;  Whittey  v.  Lide,  139  Ala.  177,  35  So.  Rep.  705;  Hoppes  v.  Cheek,  21 
Ark.  585;  Busby  v.  Treadwell,  24  Ark.  458;  Brooks  v.  Moody,  25  Ark.  452; 
Young  v.  McCormick,  6  Fla.  368;  Allen  v.  Thornton,  51  Ga.  594;  Mathis  v. 
Crowley,  146  Ga.  749,  92  S.  E.  213;  Fehrle  v.  Turner,  77  Ind.  530;  Wimberg 
v.  Schwegeman,  97  Ind.  530,  where  it  was  also  held  that  the  insolvency  must 
be  averred  in  the  bill.  Morrison  v.  Beckwith,  4  T.  B.  Mon.  (Ky. )  73,  16 
Am.  Dec.  136;  Vance  v.  House,  5  B.  Mon.  (Ky.)  540;  Taylor  v.  Lyons.  2 
Dana  (Ky.),  276;  Rawlins  v.  Timberlake,  6  T.  B.  Mon.  (Ky.)  225;  Simpson 
v.  Hawkins,  3  Dana  (Ky.),  303;  Vaughn  v.  Wells,  180  Ky.  484,  203  S.  W. 
191;  Atkinson  v.  Hager,  (Ky.)  121  S.  W.  955.  It  was  held  that  insolvency 
was  no  ground  for  the  injunction  unless  the  covenantee  filed  his  bill  quia 
timet,  requiring  all  persons  having  adverse  interests  to  assert  or  relinquish 
the  same.  Jones  v.  Waggoner,  7  J.  J.  Mardi,  (Ky)  144;  Hatcher  v. 


924  MAKKETABLE    TITLE    TO    HEAL    ESTATE. 

in  damages  for  a  broach  of  his  covenant  when  it  shall  have  oc- 
curred. It  has  been  held,  however,  that  the  insolvency  of  the 
covenantor  must  be  alleged  in  the  bill  as  ground  for  the  injunc- 

Andrews,  5  Bush  (Ky. ),  6(52;  Johnson  v.  Wilson,  77  Mo.  639.  In  Jones  v. 
Stanton,  11  Mo.  433,  the  injunction  was  granted  though  the  insolvency  of 
the  covenantor  was  doubtful,  and  though  no  suit  against  the  covenantee  had 
been  prosecuted  or  threatened.  But  the  injunction  was  to  be  dissolved  if 
the  vendor  -should  give  a  bond  with  security  to  indemnify  the  complainant 
if  he  should  sustain  any  loss  from  the  defective  title.  Mitchell  v.  McMullen, 
59  Mo.  252;  Miller  v.  A  very,  2  Barb.  Ch.  (X.  Y.)  582;  Woodruff  v.  Bunce, 
9  Paige  Ch.  (X.  Y.)  443,  38  Am.  Dec.  659;  Young  v.  Butler,  1  Head  (Tenn.), 
640;  Ingram  v.  Morgan,  4  Humph.  (Tenn.)  66,  40  Am.  Dec.  626;  Barnett  v. 
Clark,  5  Snced  (Tenn.),  436;  Baird  v.  Goodrich,  5  Heisk.  (Tenn.)  24;  Merri- 
man  v.  Xorman,  9  Hei?k.  (Tenn.)  270;  Leird  v.  Abernethy.  10  Heisk.  (Tenn.) 
626;  Saint  v.  Taylor,  12  Heisk.  (Tenn.)  488;  Land  Company  v.  Hill,  3.  Pick. 
(Tenn.)  589,  11  S.  W.  Rep.  797;  McElya  v.  Hill,  105  Tenn.  319,  59  S.  W. 
Rep.  1025;  Land  Co.  v.  Hill,  87  Tenn.  593,  11  S.  W.  Rep.  797;  Matthews 
v.  Crowder,  (Tenn.)  69  S.  W.  Rep.  779;  Stockton  v.  Cook,  3  Munf.  (Va.) 
68,  5  Am.  Dec.  504.  The  Virginia  practice  is,  however,  much  more  favorable 
to  the  covenantee  than  the  rule  stated  in  the  text.  See  post,  §  337.  In 
Patton  v.  Taylor,  7  How.  (U.  S.)  132,  the  insolvency  of  the  covenantee  was 
held  no  ground  for  an  injuncf  ion  against  the  collection  of  the  purchase  money. 
Little  consideration  appears  to  have  been  given  the  question,  and  the  authori- 
ties cited  merely  decide  that  a  covenantee  who  has  been  disturbed  in  his 
possession,  cannot  resist  the  payment  of  the  purchase  money  on  the  ground 
that  the  title  is  defective.  'Hie  grounds  upon  which  the  injunction  is  granted 
where  the  vendor  is  insolvent,  were  forcibly  stated  by  Judge  NICHOLAS  in  his 
dissenting  opinion  in  the  case  of  Simpson  v.  Hawkins,  1  Dana  (Ky.),  318,  M 
follows:  "  It  is  too  late  now  in  this  court  to  question  the  doctrine,  that  where 
a  vendee  has  received  a  conveyance  with  warranty,  and  been  let  into  posses- 
sion he  may  nevertheless  enjoin  the  collection  of  the  purchase  money,  when 
the  vendor  becomes  insolvent,  and  it  turns  out  that  he  has  no  title,  or  that 
his  title  is  defective.  That  doctrine  has  been  incidentally  and  directly 
recognized  in  too  many  cases  to  be  now  shaken,  even  if  it  were  originally 
wrong.  But  it  is  right  in  itself,  and  clearly  deducible  from  the  general 
principle  that  sustains  every  injunction  '/»•'/  tlmct.  ...  It  is  said 
(quoting  from  the  opinion  of  Judge  VXDKBWOOD),  'no  judge  can  repose  with 
confidence  and  rest  his  opinion  upon  the  events  of  futurity.  Events  that 
have  transpired  and  not  those  to  come,  are,  in  general,  the  sole  and  exclusive 
subjects  for  the  judiciary  to  act  upon.'  Admitting  all  this,  still  its  direct 
application  is  not  perceived.  In  granting  the  purchaser  relief  the  chancellor 
arts  upon  no  undivulged  or  untranspired  event.  He  restrains  the  collection 
of  the  purchase  money  Itecause  of  the  peril  in  which  the  purchaser  would 
otherwise  be  placed  from  the  want  or  imperfection  of  title  in  the  vendor. 
The  want  of  title  and  insolvency  of  the  vendor  are  ascertained  facts;  the 
peril  to  the  purchaser  thence  ensuing  is  an  existing  evil  which  the  vendor  is 
bound  to  remove  before  he  can  equitably  and  conscientiously  proceed  to  the 


REMEDY  BY  INJUNCTION COLLECTION  OF  PURCHASE  MONEY.       925 

tion.22  Upon  a  principle  similar  to  that  on  which  a  court  of  equity 
enjoins  the  collection  of  the  purchase  money  by  an  insolvent  cove- 
collection  of  the  purchase  money.  This  is  not  acting  upon  a  state  of  the  case 
that  may  arise,  but  upon  one  that  already  exists.  It  is  not  a  remedy  for 
breach  of  warranty,  or  anything  equivalent  or  similar  thereto;  but  an  act 
of  "  preventive  justice "  on  the  part  of  the  court,  the  full  effectuation  of 
which,  under  a  due  attention  to  the  interest  of  both  parties,  requires  a 
rescission  of  the  contract.  It  is  a  mere  exception  to  the  general  rule  that 
after  taking  a  conveyance  the  purchaser  will  not  be  allowed  to  rescind  for 
want  or  defect  of  title.  As  to  the  uncollected  purchase  money,  it  places 
the  purchaser  in  nearly  the  same  attitude  as  if  the  conveyance  had  not 
been  executed.  A  perpetual  injunction,  or  at  least  for  so  long  as  the  pur- 
chaser is  in  danger,  is  what  his  case  requires,  and  all  that  it  requires. 
But  as  it  would  be  unjust  for  him  to  withhold  the  purchase  money  and 
continue  the  enjoyment  of  the  land,  in  which  there  is  a  chance  be  may 
never  be  disturbed,  the  interest  of  the  vendor  requires  the  court  to  go  a  step 
further,  rescind  the  contract,  and  make  the  purchaser  restore  the  title  and 
possession."  The  majority  of  the  court  in  this  case  were  of  opinion  that  mere 
insolvency  of  the  grantor,  when  no  suit  against  the  grantee  was  being  prose- 
cuted or  threatened  by  the  real  owner,  did  not  warrant  a  perpetual  injunction 
to  stay  the  collection  of  the  purchase  money. 

"Clarke  v.  Cleghorn,  6  Ga.  225;  McGhee  v.  Jones,  10  Ga.  127.  In  this 
case  there  had  been  no  conveyance,  but  the  vendor  had  executed  a  bond  for 
title.  Vance  v.  House,  5  B.  Mon.  (Ky. )  540;  Wiley  v.  Fitzpatrick,  3  J.  J. 
Marsh.  (Ky.)  583;  Hatcher  v.  Andrews,  5  Bush  (Ky.),  561.  In  Cummins 
v.  Boyle,  1  J.  J.  Marsh.  (Ky.)  480,  it  was  held  that  the  removal  of  one  of 
several  covenantors  from  the  State  was  no  ground  for  an  injunction  unless  it 
should  appear  that  the  remedy  against  the  others  would  be  unavailing. 
Wofford  v.  Ashcraft,  47  Miss.  641;  Green  v.  Campbell,  2  Jones  Eq.  (N.  C.) 
447.  The  covenantee  will  not  be  driven  to  seek  redress  in  the  courts  of 
another  State,  when  a  less  circuitous  and  a  better  remedy  can  be  given  in  the 
courts  of  his  own  State.  Richardson  v.  Williams,  3  Jones  Eq.  (X.  C. )  119. 
It  seems  that  the  injunction  will  not  be  granted  if  the  sole  ground  of  the 
application  is  the  non-residency  of  the  covenantor  if  he  have  sufficient 
property  within  the  State  to  answer  his  liability  on  the  covenants.  The  rule 
was  so  qualified  in  Green  v.  Campbell,  2  Jones  Eq.  (N.  C.)  446.  In  Falls 
v.  Dickey,  6  Jones  Eq.  (X.  C.)  253,  the  bill  was  adjudged  fatally  defective 
in  not  averring  that  the  non-resident  had  no  property  within  the  State.  It 
must  be  admitted  that  the  ownership  of  property  within  the  State  constitutes 
a  very  doubtful  security  for  damages,  the  right  to  recover  which  may  not 
accrue  for  many  years  after  the  payment  of  the  purchase  money  has  been 
enforced,  or  not  until  the  vendor  has  disposed  of  that  property.  In  Minne- 
sota the  mere  non-residence  of  the  covenantor  has  keen  held  insufficient  to 
take  a  case  out  of  the  rule  that  the  covenantee  cannot  on  failure  of  the 
title  rescind  the  contract  and  recover  lack  the  purchase  money.  Miller  v. 
Miller,  47  Minn.  546,  50  N.  W.  Rep.  612. 

^Hoppes  v.  Cheek,  21  Ark.  585.    If  the  grantee  be  constructively  evicted  by 


926  MARKETABLE    TITLE    TO    REAL    ESTATE. 

nantor  when  the  title  has  failed,  it  will  in  a  like  case  restrain  him 
from  transferring  negotiable  securities  for  the  purchase  money  to 
an  innocent  party.23  It  seems  that  if  the  title  to  a  portion  of  the 
land  fail,  and  that  portion  be  not  material  or  essential  to  the  en- 
joyment of  the  rest,  there  is  no  ground  for  an  injunction  and  a 
rescission  of  the  contract  in  totof  but  the  covenantee  is  entitled  to 
an  abatement  of  the  purchase  money  pro  tanto,2*  or  to  compensa- 
tion for  the  portion  lost.25 

The  bill  must  also  allege  facts  showing  a  clear  outstanding  title 
in  a  stranger,  and  that  suit  is  being  prosecuted  or  threatened,  or 
that  there  is  imminent  danger  from  the  adverse  title.  Facts  which 
merely  show  that  the  title  is  doubtful,  or  is  not  such  as  the  pur- 
chaser could  be  required  to  take  upon  a  bill  for  specific  perform- 
ance, constitute  no  ground  for  an  injunction  to  stay  the  collection 
of  the  purchase  money  after  the  purchaser  has  accepted  a  convey- 
ance with  covenants  of  title.26  It  has  also  been  said  that  mere 
threats  of  suit  by  an  adverse  claimant  will  not  justify  an  injunc- 
tion, and  that  it  must  appear  that  the  suit  is  being  actually  prose- 
cuted before  relief  will  be  granted,27  except  in  cases  where  the 

being  unable  to  get  possession  from  an  adverse  claimant,  he  may  detain  the 
purchase  money  without  alleging  non-residence,  fraud  or  insolvency  on  the 
part  of  the  grantor.  Baird  v.  Laevison,  (Ky.)  15  S.  W.  Rep.  252. 

"McDunn  v.  Des  Moines,  34  Iowa,  487. 

"Simpson  v.  Hawkins,   1   Dana    (Ky.),  303. 

"Key  v.  Jennings.  66  Mo.  356.  In  Withers  v.  Morell,  3  Edw.  Ch.  (X.  Y.) 
500,  it  was  held  that  in  a  proceeding  to  foreclose  a  purchase-money  mortgage, 
the  purchaser  could  not  avail  himself  of  failure  of  the  title  to  a  portion  of 
the  land,  as  a  defense,  hut  must  file  his  bill  in  equity  to  enjoin  proceedings 
at  law  on  his  bond,  if  the  vendor  should  seek  to  hold  him  for  a  deficiency. 

"Latham  v.  Morgan,  1  Sin.  &  M.  Ch.  (Miss.)  611:  Simpson  v.  Hawkins,  3 
Dana  (Ky. ).  30;?;  Woodruff  v.  Bunce,  9  Paige  Ch.  (X.  Y.)  443;  38  Am.  Dec. 
55!);  I  long  v.  Rathhun,  Clarke  Ch.  (X.  Y. )  12,  where  it  was  said  that  insol- 
vency was  ground  for  the  injunction  if  the  danger  of  eviction  was  certain  or 
even  imminent.  It  has  been  held,  ho.vever,  that  in  a  suit  to  enjoin  a  judgment 
on  the  ground  of  defective  title,  an  answer  which  merely  alleges  that  the 
defendant's  title  is  good,  without  setting  out  facts  showing  a  good  title,  Is 
in-ii!l. i  i. -nt.  Hover  v.  Porter,  1  Overt.  (Tenn. )  258;  Moredock  v.  William*. 
1  Overt.  (Tenn.)  325;  ^loore  v.  Cook,  4  Hayw.  (Tenn.)  84.  It  is  not  easy 
to  reconcile  these  cases  with  those  which  hold  that  the  burden  is  on  the  com- 
plainant  to  allege  and  prove  a  bad  title  in  the  vendor,  (irantland  v.  Wight, 
6  Munf.  (Va.)  295. 

"Rawle  Covte.   (6th  ed.)   $  381,  citing  Worthing  on  v.  Curd,  22  Ark.  284; 


REMEDY  BY  INJUNCTION COLLECTION  OF  PURCHASE  MONEY.       927 

adverse  claimants  as  well  as  the  vendor  and  purchaser  are  before 
the  court,  thereby  making  possible  the  adjustment  of  the  rights  of 
all  parties  in  the  same  suit.28 

If  the  application  for  injunction  be  made  to  restrain  proceed- 
ings at  law  before  judgment,  it  is  usually  granted  only  upon  con- 
dition that  the  claimant  shall  confess  judgment  at  law.  The  ob- 
ject of  this  rule  is  to  prevent  suits  for  injunction  having  no  other 
purpose  than  to  delay  proceedings  at  law.29  Where  the  circum- 
stances of  the  case  are  such  as  to  entitle  the  purchaser  to  an  injunc- 
tion against  proceedings  to  collect  the  purchase  money,  it  may  be 
maintained  against  all  who  claim  under  the  vendor  as  well  as 
against  the  vendor  himself,30  except,  of  course,  the  purchaser  of  a 
negotiable  security  before  maturity,  for  value,  and  without  notice 
of  equities  between  the  original  parties. 

The  rule  that  a  grantee  in  undisturbed  possession  of  the  prem- 
ises may  enjoin  the  collection  of  the  purchase  money  upon  a  com- 
plete failure  of  the  title,  where  the  grantor  is  insolvent,  is  equi- 

Wiley  v.  Fitzpatrick,  3  J.  J.  Marsh.  (Ky.)  583.  In  the  last  case  it  appears, 
however,  that  the  injunction  was  granted,  the  covenantor  being  practically 
insolvent  and  a  non-resident,  though  no  suit  was  being  prosecuted  by  the 
adverse  claimant. 

28  Id.  (5th  ed.)  §  382.  Morrison  v.  Beckwith,  4  T.  B.  Mon.  (Ky.)  73;  10 
Am.  Dec.  136;  Davis  v.  Logan,  5  B.  Mon.  (Ky.)  341.  Here  the  covenantee 
had  been  sued  in  dower  by  the  widow  of  the  covenantor,  and  he  had  filed  a 
cross-bill  against  the  heirs  and  executor  of  the  covenantor  asking  compensa- 
tion for  breach  of  warranty.  No  question  as  to  the  right  to  an  injunction,  or 
to  detain  purchase  money  was  involved.  In  Denny  v.  Wickliffe,  1  Met.  (Ky.) 
216,  226,  the  contract  was  executory,  but  specific  performance  by  conveying 
to  the  purchaser  having  been  decreed,  he  was  considered  to  occupy  the  posi- 
tion of  a  grantee,  and  it  was  held  that  he  could  only  have  relief  from  the 
defective  title,  by  bringing  the  adverse  claimants  before  the  court.  Citing 
Simpson  v.  Hawkins,  1  Dana  (Ky. ),  303;  Taylor  v.  Lyons,  2  Dana  (Ky. ), 
279. 

28  Anon.,  1  Vern.  129;  1  Madd.  Ch.  132.  Warwick  v.  Norvell,  1  Leigh  (Va.), 
96;  Nelson  v.  Owen,  3  Ired.  Eq.  (N.  C. )  175,  which  was  an  injunction  against 
proceedings  to  collect  a  land  bond,  and  where  it  was  said  that  the  granting  of 
injunctions  was  liable  to  much  abuse,  as  they  are  usually  obtained  upon  the 
ex  parte  statements  of  the  applicant,  and  often  employed  to  delay  the  admin- 
istration of  justice;  and  that  to  remedy  this  evil,  the  complainant  must,  as 
a  general  rule,  agree  that  judgment  at  law  may  be  entered  for  the  plaintiff. 

30  Gunn  v.  Thornton,  49  Ga.  380,  where  a  judgment  creditor  of  the  vendor 
was  seeking  to  garnishee  the  purchase  money.  Fillingin  v.  Thornton,  49  Ga. 
384. 


928  MABKETABLE    TITLE    TO    REAL    ESTATE. 

table  and  just  provided  the  grantee  be  required  to  reconvey  the 
premises  to  the  grantor.  But  it  would  be  obviously  inequitable  to 
permit  the  grantee  to  keep  both  the  purchase  money  and  the 
estate,  unless  the  injunction  were  merely  temporary,  and  it  ap- 
]>eared  that  the  objection  to  the  title  could  probably  be  removed 
by  the  grantor.  A  perpetual  injunction  against  the  collection  of 
the  purchase  money  would  be  in  substance  a  rescission  of  the  con- 
tract, and  it  is  a  cardinal  doctrine  of  equity  that  a  contract  will  not 
be  rescinded  without  returning  to  each  party  the  consideration 
which  passed  from  him  to  the  other. 

§  332.  Where  the  estate  is  encumbered.  In  many  cases, 
injunctions  against  proceedings  to  collect  the  purchase  money 
have  been  granted  where  an  incumbrance  on  the  premises  exists, 
apparently  without  regard  to  the  imminency  of  proceedings  to 
enforce  the  incumbrance,  or  the  non-residency  or  insolvency  of 
the  covenantor.31  As  to  actual  or  threatened  proceedings  against 
the  covenantee,  there  would  seem  to  be  grounds  for  a  distinction 
between  defects  of  title  and  incumbrances.  The  former  may 
never  be  asserted,  while  the  enforcement  of  securities  for  the  pay- 
ment of  money  is  almost  inevitable.  As  to  non-residence  and 
insolvency  of  the  covenantor,  even  though  the  covenantee's  case  be 
not  strengthened  by  these  conditions,  it  would  unquestionably  be  a 
great  hardship  if  he  might  be  compelled  to  pay  money,  which  in 

«Buel!  v.  Tate,  7  Bl.  (Incl.)  55:  Addlrmnn  v.  Mormon,  7  Bl.  (Tnd.1  32, 
where  it  was  held  that  a  suit  to  enjoin  collection  of  the  purchase  money 
until  the  covenantee  should  remove  the  incumbraiice  on  the  premises  vrna  in 
aflirmance  of  the  contract,  and  that  consequently  the  suit  could  he  maintained 
without  tendering  a  reconveyance  of  the  land,  or  offering  to  account  for 
rents  and  profits.  Arnold  v.  Carl,  IS  Ind.  339;  Ricker  v.  Pratt,  4S  Ind.  73; 
Huke  v.  Jones,  33  W.  Ya.  501.  obiter.  Dayton  v.  Dusenbury.  25  X.  J.  Eq. 
110,  where  there  were  un-.it  i-linl  judgments  binding  the  premises;  I'nion 
Nat  Hank  v.  Pinner,  25  X.  J.  Kq.  40.5,  tax  liens;  Stiger  v.  Bacon,  29  X.  J. 
Eq.  442,  prior  mortgage;  White  v.  Stretch,  7  C.  E.  Or.  7fi,  sewer  assessment; 
\Yoodruir  v.  Depue,  14  X.  J.  Eq.  108,  prior  mortgage.  Henderson  v.  Brown, 
18  Grant  Ch.  (Can.)  79;  Lovelace  v.  Harrington,  27  Grant  Ch.  (Can.)  178. 
In  Alabama,  the  right  to  enjoin  the  collection  of  the  purchase  money  where 
there  has  heen  a  Itreach  of  the  covenant  against  incumhrances  is  restricted 
to  eases  in  which  it  appears  that  the  covenantee  is  insolvent.  McLemore  v. 
M.il  — .n.  20  Ala.  127,  citing  Parks  v.  Brooks,  16  Ala.  529;  Cullum  v.  Branch 
Bunk,  4  Ala.  21;  37  Am.  Dec.  725.  So,  also,  in  Mississippi:  Wofford  v. 
Ashcraft,  47  Mi--.  641. 


BEMEDY  BY  INJUNCTION COLLECTION  OF  PURCHASE  MONEY.       929 

all  probability  he  would  in  a  short  time  'be  entitled  to  recover  back 
as  damages.  If  the  covenantee  pay  money  to  remove  incumbrances 
on  the  land,  he  may  enjoin  the  collection  of  the  purchase  money 
to  that  extent,32  provided  he  has  had  no  opportunity  to  set  up  that 
defense  at  law,  but  he  will  be  allowed  only  the  amount  actually 
paid  by  him  to  remove  the  incumbrance.  He  cannot  buy  in 
incumbrances  and  set  up  an  adverse  title  under  them  against  his 
vendor.33 

But  while  an  outstanding  mortgage  or  other  incumbrance  is 
ground  for  an  injunction  against  the  collection  of  the  purchase 
money  where  the  purchaser  holds  under  a  conveyance  with  a 
covenant  against  incumbrances,  it  is  no  ground  for  a  rescission 
of  the  contract.  The  injunction  will  be  dissolved  if  the  vendor 
removes  the  incumbrance,  or  reduces  it  to  a  sum  not  exceeding  the 
unpaid  purchase  money.  The  purchaser  cannot  tender  a  recon- 
veyance and  deprive  the  vendor  of  the  right  to  perfect  the  title.31 
Neither  is  delay  in  removing  the  incumbrance  ground  for  rescind- 
ing the  contract,  where  the  grantee  has  never  been  "disturbed  in 
his  possession,  and  the  enforcement  of  the  incumbrance  is  barred 
by  the  Statute  of  Limitations.35 

§  333.  Foreclosure  of  purchase-money  mortgage.  We  have 
already  seen  that  want  of  title  in  the  vendor  is  no  ground  for 
resisting  the  enforcement  of  a  purchase-money  mortgage  or  other 
security,  when  no  personal  judgment  against  the  purchaser  for  a 
deficiency  is  sought.  In  such  a  case  an  injunction,  as  a  general 
rule,  will  not  be  granted  to  restrain  a  foreclosure  of  the  mortgage.36 

^Champlin  v.  Dotson,  13  Sm.  &  M.  (Miss.)  553;  53  Am.  Dec.  102. 
Detroit  R.  Co.  v.  Griggs,  12  Mich.  51.  In  Rawle  Covts.  (5th  ed.)  642. 
mention  is  made  of  a  class  of  cases  which  refuse  the  injunction  unless  the 
covenantee  has  paid  off  the  incumbrance,  referring  to  section  378  of  that 
work.  Reference  to  that  section,  however,  shows  that  the  rule  is  limited 
to  cases  in  which  the  purchaser  bought  with  notice  of  the  incumbrance. 

^Champlin  v.  Dotson,  13  Sm.  &  M.  (Miss.)  553;  53  Am.  Dec.  102;  Paine 
v.  Kemp,  (Fla.)  82  So.  53. 

24  Oldfield  v.  Stevenson,  1  Ind.  153. 

33Egan  v.  Teaman,   (Tenn.)   46  S.  W.  Rep.  1012. 

36  Ante,  §  184,  and  cases  there  cited.  Cartwright  v.  Briggs,  41  Ind.  184, 
citing  Hubbard  v.  Chappel,  14  Ind.  601;  Hume  v.  Dessar,  29  Ind.  112;  Rogers 
V.  Place,  29  Ind.  577;  Hanna  v.  Shield,  34  Ind.  84.  In  Wade  v.  Percy,  24  La. 

117 


1)30  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

The  fact  that  the  purchaser  has  paid  a  considerable  portion  of  the 
purchase  money,  seems  to  place  him  on  no  better  ground,  with 
respect  to  his  right  to  an  injunction.  Where,  however,  the  con- 
tract is  executory,  it  will  be  remembered  that  the  purchaser,  on 
failure  of  the  title,  is,  in  some  of  the  States,  permitted  to  detain 
the  premises,  if  necessary,  to  reimburse  him  for  what  he  has 
already  paid.37  If  the  covenantee  should  be  actually  evicted  by 
paramount  title,  there  would,  of  course,  be  little  probability  of 
proceedings  by  the  covenantor  to  enforce  a  vendor's  lien  or 
purchase-money  mortgage,  unless  he  should  seek  to  recover  a  per- 
sonal judgment  against  the  covenantee,  or  should  make  the  adverse 
claimants  parties.  In  either  event  the  suit  would  be  perpetually 
enjoined  as  to  the  covenantee.38  But  while  a  defect  in  the  title  is, 
in  general,  no  ground  for  resisting  the  enforcement  of  a  purchase- 
money  mortgage  where  no  personal  judgment  against  the  mort- 
gagor is  sought,  a  different  rule  has  been  held  to  apply  if  the 
vendor  conveyed  to  the  mortgagor  with  a  covenant  against  incum- 
brances,  and  an  incumbrance  on  the  premises  exists.  In  such  a 
case  the  enforcement  of  the  mortgage  will  be  enjoined  until  the 
vendor  removes  the  incumbrance  or  reduces  it  to  a  sum  not  exceed- 
ing the  unpaid  purchase  money.39 

The  existence  of  a  defect  in  the  title  is  no  defence  to  a  suit  by 
the  grantor  to  enforce  a  vendor's  lien,  nor  to  a  suit  by  the  grantee 
to  rescind,  where  the  grantor  removes  the  defect  before  decree  in 
such  suit.40  In  a  case  in  which  the  title  of  the  grantor  was  bad 

Ann.  173,  it  was  held  that  (he  vendor  might  be  enjoined  from  enforcing  a 
purchase-money  mortgage  until  he  hud  complied  with  his  agreement  to  fur- 
nish a  perfect  title.  The  civil  law  leans  greatly  to  the  side  of  the  pur- 
chaHer  on  failure  of  title,  and  does  not  earry,  perhaps,  to  its  full  extent, 
the  rule  that  special  agreements  respecting  the  title  are  merged  in  the  con- 
veyance. 

"Ante,  !  261. 

•*  Kingtilmry  v.  Milner,  60  Ala.  502. 

"Ante.  8  1R4.  Coffman  v.  Scoville,  86  111.  335;  Dayton  v.  Dusenbury,  25 
X.  J.  K»j.  110;  Union  Xat.  Hank  v.  Pinner,  25  X.  J.  Kq.  49.V,  Stiger  v.  Bacon,  29 
X.  J.  Eq.  442;  Bennett  v.  Pierce,  50  W.  Va.  604;  40  S.  E.  395. 

^Stokes  v.  Acklen,  (Tenn.)  46  S.  W.  Rep.  310;  McElya  v.  Hill,  105  Tenn. 
319;  59  S.  W.  Rep.  1025;  Rentier  v.  Marshall,  (Tenn.  Ch.  App.)  58  S.  W. 
Kep.  863. 


REMEDY  BY  INJUNCTION COLLECTION  OF  PURCHASE  MONEY.       931 

at  the  time  the  vendor's  lien  was  reserved,  but  had  been  perfected 
by  the  Statute  of  Limitations  at  the  time  of  suit  to  enforce  the 
lien,  it  was  held  that  the  original  want  of  title  in  the  grantor 
was  no  bar  to  the  suit.41 

§  334.  Where  there  are  no  covenants.  If  the  purchaser  ac- 
cept a  conveyance  without  covenants  for  title,  there  is  of  course 
no  ground  for  an  injunction  if  the  title  fails,  unless  the  vendor 
falsely  and  fraudulently  represented  the  state  of  the  title.42  The 
very  fact  that  the  conveyance  was  without  covenants  should  raise, 
it  would  seem,  a  strong  presumption  that  the  purchaser  was  ad- 
vised as  to  the  weakness  of  the  title,43  and  that  the  contract  was 
one  of  hazard.  And  if  he  purchases  with  knowledge  that  the  title 
is  doubtful,  relying  for  his  indemnity  on  the  covenants  he  is  to 
receive,  and  afterwards  accepts  a  conveyance  with  covenants  for 
title,  he  cannot  afterwards  enjoin  the  collection  of  the  purchase 
money  on  the  ground  that  the  title  is  bad,  but  will  be  left  to  his 
remedy  on  the  covenants,44  unless,  it  would  seem,  he  has  been 
evicted  and  has  had  no  opportunity  to  set  up  that  defense  at  law. 

"Bennett  v.  Pierce,  50  W.  Va.  604;  40  S.  E.  Rep.  395. 

"Ante,  §  267.  Banks  v.  Walker,  2  Sandf.  Ch.  (N.  Y.)  344;  Sutton  v. 
Sutton,  7  Grat.  (Va.)  234;  56  Am.  Dec.  109;  Price  v.  Ayres,  10  Grat.  (Va.) 
575. 

43  Of  course  no  such  presumption  can  arise  if  the  purchaser  be  induced, 
through  fraudulent  representations,  to  accept  a  conveyance  without  covenants, 
as  in  Denston  v.  Morris,  2  Edw.  Ch.  (N.  Y.)  37. 

"Merritt  v.  Hunt,  4  Ired.  Eq.  (N.  C.)  409.  The  facts  in  this  case  are  con- 
tained in  the  opinion  delivered  by  RUFFIX,  C.  J.,  and  being  such  as  frequently 
occur  in  the  sale  of  real  property,  justify  the  following  copious  extract: 
"  The  crier  at  the  sale  and  several  of  the  bidders  prove,  that  the  defendant 
(vendor)  gave  distinct  notice  that  doubts  rested  upon  the  title,  as  he  was 
unable  to  trace  it  or  find  any  evidence  of  it  upon  the  register's  books,  and 
that  the  defendant,  in  order  to  induce  persons  to  bid  a  fair  price  for  the  land, 
said  that  he  would  warrant  the  title.  The  witnesses  all  understood  that  the 
purchaser  was  to  take  a  conveyance  for  the  land  at  all  events,  whether  the 
defendant  could  show  a  good  title  or  not  in  his  testatrix  or  himself,  provided 
he  would  bind  himself  by  a  general  warranty  in  the  deed.  They  state  that 
the  defendant  was  known  to  be  a  man  of  substantial  and  independent  prop- 
erty, and  that  the  bidders  considered  the  title  good  to  them  by  his  agreement 
to  make  it  good  in  case  of  an  eviction.  It  is  evident  that  the  plaintiff,  also, 
had  the  same  impression  and  understanding.  For,  after  he  was  declared  the 
purchaser,  he  made  no  inquiry  as  to  the  title,  nor  asked  any  delay  for  the 
purpose  of  looking  into  it,  but  was  satisfied  to  give  his  bond  for  the  price 


932  MAKKETABLE    TITLE    TO    REAL    ESTATE. 

§  335.  Temporary  and  perpetual  injunctions.  Injunctions  to 
restrain  the  collection  of  the  purchase  money  are  not  necessarily 
in  rescission  of  the  contract  for  the  sale  of  lands.  A  perpetual 
injunction  would  of  course  have  that  effect  and  should  not  be 
granted  unless  the  covenantee  offers  to  reconvey  the  premises.45 
Temporary  injunctions  are  frequently  granted  on  allegations  of 
the  insolvency  of  the  covenantor,  until  the  rights  of  hostile  claim- 
ants of  the  land  can  he  decided,46  or  until  the  covenantor  removes 
incuiubrances  from  the  premises,  in  the  latter  case,  it  seems, 
whether  the  covenantor  is  solvent  or  insolvent.47 

immediately,  and  take  a  deed  purporting,  as  was  then  thought,  to  convey  a 
fee,  and  containing  a  general  warranty  binding  the  defendant  and  his  heirs. 
He  also  sold  a  part  to  another  person,  and  conveyed  it  in  fee.  If  there  be  a 
defect  in  the  title,  therefore,  it  cannot  affect  the  contract  these  persons  made, 
for  the  contract,  in  terms,  provided  for  such  a  possible  or  probable  defect,  and 
for  the  consequences  of  it.  If  a  person  chooses  to  buy  a  doubtful  or  bad 
title  with  his  eyes  open,  and  at  his  own  risk,  he  is  as  much  bound  by  that, 
as  by  any  other  contract  fairly  made.  So,  if  he  buys  such  a  title  with  a 
guaranty  of  the  seller  against  eviction  or  disturbance,  he  must  take  the  title, 
and  look  to  the  vendor's  covenants  for  his  security  or  indemnity.  He  cannot 
complain  of  any  injury,  for  he  gets  precisely  what  he  bargained  for,  namely, 
a  conveyance  with  the  warranty  of  the  vendor.  In  such  a  case  the  court  will 
not  look,  into  the  title  at  all.  because  the  bargain  was,  that  it  was  immaterial 
whether  it  was  g<xxl  or  bach  provided  the  vendee  had  a  covenant  of  indem- 
nity." Livingston  v.  Short,  77  111.  587;  Rawlins  v.  Timberlalce,  6  T.  B.  Mon. 
(Ky.)  225;  Hall  v.  Priest,  6  Buah  (Ky.),  14;  Miller  v.  Owens,  Walker  Ch. 
(Mi--.  244;  Anderson  v.  Lincoln.  5  How.  (Miss.)  279.  In  Wailes  v.  Cooper, 
24  Mis*.  232,  it  was  held  that  the  right  to  a  perpetual  injunction  against 
the  collection  of  the  purchase  money  was  not  affected  by  the  fact  that  the 
purchaser  bought  with  notice  of  defects  and  took  a  conveyance  with  war- 
ranty, if  the  vendor  was  insolvent.  It  was  further  held,  however,  that  the 
purchaser  was  not  entitled  to  an  injunction  under  these  circumstances, 
though  actually  evicted,  unless  the  vendor  was  insolvent.  Parkins  v.  Wil- 
liams, 5  Cold.  (Tenn.)  512.  Demarett  v.  Bennett,  29  Tex.  267.  Rawle 
Covt*.  for  Titles  (3th  ed.|,  §  37S,  where  it  is  said  that  while  knowledge  of 
an  incumhrance  or  defect  in  the  title,  is  no  bar  to  a  recovery  on  the  cove- 
nants themselves  in  a  court  of  law,  it  should  operate  strongly,  if  not  con- 
clusively, against  his  right  to  equitable  relief  where  they  are  not  yet  sc 
broken  as  to  give  a  present  right  to  actual  damages. 

"Jackson  v.  Norton,  6  Cal.  137.  Of  course  if  the  covenantee  has  been 
actually  evicted  from  the  entire  premises,  the  injunction  will  be  perpetual. 
Shelby  v.  William*,  1  BL  (Ind.)  384;  Luckett  v.  Triplett,  2  B.  Mon.  (Ky.) 
30. 

"Gay  v.  Hancock,  1  Rand.  (Va.)  72;  Morrison  v.  Beckwith.  4  T.  B.  Mon. 
(Ky.)  73;  16  Am.  Dec.  136;  Houston  v.  Hurley,  2  Del.  Ch.  247. 

•Ante,  |  184. 


REMEDY  BY  INJUNCTION COLLECTION  OF  PURCHASE  MONEY.       933 

On  dissolving  an  injunction  against  proceedings  to  collect  the 
purchase  money,  if  it  appear  that  the  injunction  was  sought  in 
good  faith  and  not  merely  for  purposes  of  delay,  as  where  a  third 
person  was  asserting  a  hostile  claim  to  the  land,  the  court  should 
not  give  damages  against  the  purchaser.48 

§  336.  Resume.  While  there  are  cases  which  apparently  con- 
cede the  right  of  the  covienantee,  upon  a  complete  failure  of  the 
title  and  before  eviction,  to  rescind  the  contract  and  reconvey  the 
premises  to  the  grantor,  and  to  have  a  perpetual  injunction  against 
the  collection  of  the  purchase  money,  the  weight  of  authority  in 
America  undoubtedly  establishes  the  rule,  that  where  there  has 
been  no  such  breach  of  the  grantor's  covenants  for  title  as  to  give 
a  present  right  to  recover  substantial  damages  at  law,  and  no  suit 
is  being  actually  prosecuted  or  threatened  by  an  adverse  claimant, 
and  the  covenantor  is  neither  insolvent  nor  a  non-resident,  a  per- 
petual injunction  to  stay  the  collection  of  the  purchase  money  will 
not  be  granted.49 

^Massie  v.  Sebastian,  4  Bibb  (Ky.),  436;  Morris  v.  McMillan,  3  A.  K. 
Marsh.  (Ky.)  565. 

49Rawle  Covts.  for  Title  (5th  ed.),  §  375;  High  on  Injunctions  (3d  ed.) 
§  384.  The  books  contain  many  cases,  cited  to  this  proposition,  in  which  the 
question  of  insolvency  and  non-residence  of  the  vendor,  and  of  the  immi- 
nency  of  proceedings  by  the  adverse  claimant,  was  not  raised ;  and  in  which 
no  more  was  decided  than  that  the  mere  want  of  title  is  no  ground  for 
detaining  the  purchase  money  where  the  purchaser  holds  under  a  convey- 
ance with  covenants  for  title,  and  has  not  been  disturbed  in  the  possession. 
The  author  has  collected  many  such  cases.  Ante,  chap.  16.  Magee  v. 
McMillan,  30  Ala.  420;  McLemore  v.  Mabson,  20  Ala.  137;  Busby  v.  Tread- 
well,  24  Ark.  457;  Trumbo  v.  Lockridge,  4  Bush  (Ky.),  416;  English  v. 
Thomasson,  82  Ky.  281.  The  Kentucky  decisions  on  this  and  kindred  points, 
are  collected  in  this  case.  See,  also,  Abner  v.  York,  19  Ky.  Law  R.  643;  41 
S.  W.  Rep.  309;  Foster  v.  Lyons,  19  Ky.  Law  R.  1906;  44  S.  W.  Rep.  625.  A 
judgment  for  the  purchase  money  cannot  be  enjoined  on  the  ground  that  the 
vendor's  lien  on  the  property  has  not  been  released,  since  payment  of  the 
judgment  extinguishes  the  lien.  Wilder  v.  Smith,  12  B.  Mon.  (Ky)  94;  Gayle 
v.  Fattle,  14  Md.  69.  Here  a  suit  by  an  adverse  claimant  against  the  cove- 
nantor was  being  actually  prosecuted,  but  there  was  no  allegation  or  proof 
of  non-residency  or  insolvency  of  the  covenantor.  Vick  v.  Percy,  7  Sm.  &  M. 
(Miss.)  256;  45  Am.  Dec.  303.  In  McDonald  v.  Green,  9  Sm.  &  M.  (Miss.) 
138,  the  point  was  queried,  but  was  admitted  in  Johnson  v.  Jones,  13  Sm.  & 
M.  (Miss.)  582,  citing  Wilty  v.  Hightower,  6  Sm.  &  M.  (Miss.)  350;  Wailes 
v.  Cooper,  24  Miss.  232;  Henry  v.  Elliott,  6  Jonea  Eq.  (N.  C.)  175,  where  the 
conveyance  with  warranty  purported  to  carry  a  fee,  but  the  purchaser  got 


934  MARKETABLE    TITLE    TO    REAL    ESTATE. 

§  337.  WHERE  THERE  IS  NO  PRESENT  RIGHT  TO  RECOVER 
SUBSTANTIAL  DAMAGES  ON  THE  COVENANTS.  4.  UViere  there 
is  no  present  right  to  recover  substantial  damages  on  the  covenants 
for  title,  but  there  is  a  clear  outstanding  title  in  a  stranger.  In 
a  few  of  the  States  injunctions  against  proceedings  to  collect  the 
purchase  money  have  been  granted  upon  a  complete  failure  of  the 
title  though  the  covenantee  is  in  the  undisturbed  possession  of  the 
premises,  and  the  covenantor  is  neither  insolvent  nor  non-resident, 
and  though  no  suit  by  the  real  owner  against  the  covenantee  has 
been  prosecuted  or  threatened.60  In  a  case  of  this  kind,  as  we  have 

only  a  life  estate.  Bumpus  v.  Plainer,  1  Johns.  Ch.  (X.  Y.)  213;  Abbott  v. 
Allen,  2  Johns.  Ch.  (N.  Y.)  519;  7  Am.  Dee.  554;  Miller  v.  Avery,  2  Barb. 
Ch.  (X.  Y.)  118;  Platt  v.  Gilchrist,  3  Sandf.  (X.  Y.  S.  C.)  118.  One  who 
takes  a  conveyance  from  a  person  other  than  the  vendor,  cannot  enjoin 
the  collection  of  the  purchase  money  on  the  ground  of  defective  title.  He 
must  look  to  the  covenants  of  his  grantor.  Holeman  v.  Maupin,  3  T.  B. 
Mon.  (Ky.)  380;  Abner  v.  York,  19  Ky.  Law  R.  643;  41  S.  W.  Rep.  3(Mh 
Remote  possibilities  that  the  covenantee  will  at  some  time  in  the  future 
lie  disturbed  in  his  possession,  constitute  no  ground  for  an  injunction.  Collins 
v.  Clayton,  53  Ga.  649.  In  many  cases  relief  by  injunction  has  been  denied 
upon  the  ground  that  the  remedy  at  law  by  action  upon  the  covenants 
for  title  is  adequate  and  complete,  though  no  right  to  recover  substantial 
damages  on  those  covenants  exists,  the  covenantee  being  still  in-  the  posses- 
sion of  the  premises.  Wilkins  v.  Hogue,  2  Jones  Eq.  (N.  C.)  479.  In 
Swain  v.  Burnley.  1  Mo.  404,  it  was  said  that  the  purchaser  was  entitled  to 
an  injunction  against  a  judgment  for  the  purchase  money  until  he  could 
prosecute  a  suit  at  law  on  the  vendor's  covenants. 

"Yancey  v.  Lewis.  4  H.  &  M.  (Va.)  390;  Ralston  v.  Miller,  3  Rand.  (Va.) 
44,  15  Am.  Dec.  704;  Grantland  v.  Wiglu,  5  Munf.  (Va.)  295;  Keyton  v. 
Brawford,  5  Leigh  (Va.),  39;  Roger  v.  Kane,  5  Leigh  (Va.),  606;  Beale  v. 
Seiveley,  8  Leigh  (Va.),  675;  Long  v.  Israel,  9  Leigh  (Va.),  556,  obiter; 
Clark  v.  Hardgrove.  7  Grat.  (Va.)  399;  Renick  v.  Rcnick,  5  W.  Va.  291; 
Walmsley  v.  Stalnaker,  24  W.  Va.  214;  Hoke  v.  Jones,  33  W.  Va.  501,  10  S. 
E.  Rep.  775;  Kinports  v.  Rawson,  29  W.  Va.  487,  2  S.  E.  Rep.  85;  Jackson 
v.  Walsh  Land  Co..  51  W.  Va.  482,  41  S.  E.  Rep.  920;  Smith  v.  Ward,  66 
W.  Va.  190,  66  S.  E.  234,  33  L.  R,  A.  (X.  S.)  1030;  Smith  v.  White, 
71  W.  Va.  639.  78  S.  E.  378,  48  L.  R.  A.  (X.  S.)  623.  In  Stead  v.  Baker,  13 
Grat.  (Va.)  380,  and  Lange  v.  Jones,  5  Leigh  (Va.),  192,  it  wan  held  that 
equity  would  not  enjoin  the  collection  of  the  purchase  money  if  a  part  of  the 
premines  was  in  the  hands  of  an  adverse  claimant  whose  title  the  covenantee 
denied.  In  such  case  his  remedy  is  by  ejectment  against  the  claimant. 
Where  the  purchaser  is  mistaken  as  to  the  sufficiency  of  a  deed,  under  which 
lie  holds,  to  convey  title  («.  g.,  a  deed  defectively  acknowledged  by  a  married 
woman),  and  the  defect  is  clear  and  admitted,  he  should  not  be  compelled 
to  rely  on  the  covenant  of  warranty  and  take  the  risk  of  the  solvency  of  the 
vendor's  estate  after  his  death.  Renick  v.  Renick,  6  W.  Va.  285. 


KEMEDY  BY  INJUNCTION COLLECTION  OF  PUBCHASE  MONEY.       935 

already  seen,  it  would  not  seem  inequitable  to  permit  the  cove- 
nantee  to  resist  the  payment  of  the  purchase  money,  provided  he 
reeonveyed  the  premises  to  the  grantor,  and  placed  him  substan- 
tially in  the  same  condition  in  which  he  was  before  the  contract 
was  made.01  But  the  equity  of  the  cases  which  sustain  the  first- 
mentioned  position  is  open  to  serious  doubt,  in  that  they  impose 
no  terms  nor  conditions  upon  the  covenantee  under  which  he  may 
resist  the  payment  of  the  purchase  money  on  failure  of  the  title, 
nor,  as  a  general  rule,  limit  the  time  during  which  the  injunction 
shall  be  operative.52  It  is  obviously  unjust  that  the  covenantee 
should  detain  both  the  purchase  money  and  the  premises 
indefinitely. 

The  doctrine  that  the  covenantee  may  detain  the  purchase  money 
on  a  clear  failure  of  the  title,  without  suit  prosecuted  or  threat- 
ened by  the  real  owner,  and  with  a  solvent  covenantor  to  maKe 
good  the  damages  when  a  substantial  breach  of  the  covenants  has 
occurred,  has  received  little,  if  any,  recognition  without  the  States 
of  Virginia  and  West  Virginia,  where  it  prevails.  It  is  there 
rested  upon  the  ground  that  the  covenantee  has  no  adequate  rem- 
edy at  law,  there  being  no  right  of  action  on  the  covenant  affirma- 
tively or  negatively  by  way  of  recoupment  or  equitable  set-off 

"Ante,  chap.  26.  In  Clark  v.  Hardgrove,  7  Grat.  (Va.)  407,  it  was  held 
that  the  covenantee,  on  failure  of  the  title,  might  enjoin  the  collection  of  the 
purchase  money  though  the  covenantor  was  seeking  to  collect  the  same  from 
one  whose  obligation  the  covenantee  had  assigned  to  the  covenantor  as  col- 
lateral security  for  the  purchase  money.  In  Max  Meadows  L.  &  Imp.  Co. 
v.  Brady,  92  Va.  71,  22  S.  E.  845,  it  is  said  that  equity  will  not  rescind 
a  contract  for  the  sale  of  land  on  the  ground  of  a  defective  title  where  the 
grantee  is  in  undisturbed  possession  under  a  warranty  deed,  and  the  grantor 
is  not  insolvent  and  has  taken  no  steps  to  enforce  collection  of  the  purchase 
money.  Distinguished  in  Perrow  v.  Webster,  (Va.)  97  S.  E.  770. 

52  Examination  of  the  Virginia  decisions  cited,  supra,  will  show  that  in 
few,  if  any,  of  them  is  there  any  attempt  to  fix  the  length  of  time  during 
which  the  injunction  shall  be  operative.  Obviously  it  would  be  impracticable 
to  fix  any  such  time  where  the  covenantee  is  allowed  to  avail  himself  of  dor- 
mant rights  as  well  as  those  that  are  being  actively  asserted.  In  Gay  v. 
Hancock,  1  Rand.  (Va.)  72,  where  the  adverse  claimant  had  actually  brought 
suit  to  enforce  his  rights,  it  was  of  course  held  that  the  collection  of  the  pur- 
chase money  should  be  stayed  until  that  suit  should  be  decided.  In  Grant- 
land  v.  Wight,  2  Munf.  (Va.)  179,  it  was  held  that  the  injunction  should  not 
be  dissolved  until  a  good  and  sufficient  deed  had  been  tendered  to  the  pur- 
chaser. 


936  MARKETABLE    TITLE    TO    REAL    ESTATE. 

until  an  eviction  occurs.53  Hence  it  appears  that  in  those  States 
there  may  be  a  condition  of  the  title  which  would  justify  an  in- 
junction against  the  collection  of  the  purchase  money,  and  yet 
would  not  support  the  defense  of  recoupment  or  set-off  at  law. 

The  injunction  will  not  be  granted  unless  the  complainant  al- 
leges facts  showing  a  clear  outstanding  title  in  a  stranger,  and 
the  burden  will  be  on  him  to  prove  the  existence  of  that  title.54 
Allegations  that  the  title  is  defective,  without  showing  in  what 
respect,  or  facts  which  establish  nothing  more  than  that  the  title 
is  doubtful  or  unmarketable,  will  not  support  the  application  for 
an  injunction ; K  nor  will  he  be  entitled  to  relief  if  the  claims  of 

M  Koger  v.  Kane,  5  Leigh  (Va.),  608,  where  it  was  said  by  TUCKER,  P.,  in 
respect  to  the  practice  in  Virginia  of  enjoining  the  collection  of  the  purchase 
money  on  failure  of  the  title:  ''The  jurisdiction  thus  confessedly  exercised 
by  the  courts  of  equity  with  us  results  from  what  may  be  called  the  pre- 
ventive justice  of  those  tribunals.  It  arrests  the  compulsory  payment  of  the 
purchase  money  when  the  purchaser  can  show  that  there  is  a  certainty  or  a 
strong  probability  that  he  must  lose  that  for  which  he  is  paying  his  money. 
It  gives  him  relief  too,  though  his  demand  may  be  in  the  nature  of  unliqui- 
dated damages,  because  he  has  no  other  means  of  ascertaining  them.  Thus, 
if  the  purchaser  can  show  that  he  has  received  a  deed  with  general  warranty, 
and  that  the  title  is  bad,  yet  if  he  has  not  been  evicted  he  cannot  maintain 
covenant  at  law  and  ascertain  his  damages  before  that  tribunal  in  order  then 
to  set  them  off  against  the  demand.  If,  indeed,  there  are  covenants  for  good 
title,  etc.,  it  may  be  otherwise;  and  BO  it  may  often  happen  that  an  action 
may  be  brought  where  there  are  such  covenants  of  good  title,  etc.,  upon 
which  the  validity  of  the  title  may  be  tested  and  damages  of  the  party 
ascertained.  Whether  in  these  cases  relief  could  be  given  in  equity  it  is  not 
necessary  here  to  say.  But,  where  there  is  only  a  covenant  this  cannot  be 
done;  and,  hence,  I  conceive,  the  party  would  be  entitled  to  the  assistance  of 
a  court  of  equity  where  he  is  full-handed  with  proof  that  his  title  is  defective, 
although  he  has  not  yet  been  evicted." 

MGrantland  v.  Wight,  6  Munf.   (Va.)  295. 

"Kinports  v.  Rawson,  29  W.  Va.  487,  where  it  waa  also  held  that  idle  and 
groundless  claims  to  the  land,  though  suit  had  !>een  brought  upon  them, 
would  not  Kiipport  the  injunction.  The  court  must  be  able  to  see  that  there 
in  some  fourdition  for  the  claim.  Bennett  v.  Pierce,  50  W.  Va.  604,  40  S.  E. 
Rep.  305;  French  v.  Howard,  3  Bibb  (Ky.l,  301.  The  complainant  must 
allege  such  farts  in  his  bill  as  will  affirmatively  show  such  an  incumhrancc 
or  outstanding  title  as  will  defeat  the  vendor's  title  under  which  the  com- 
plainant holds.  Cantrell  v.  Mobb,  43  Ga.  103.  In  Rosenberger  v.  Keller.  33 
Grat.  (Va.)  494,  it  waa  said  by  STAPLES,  J.:  "The  numerous  adjudged  cases 
xhuw  that  this  court  has  gone  very  far  in  staying  the  collection  of  the  pur- 
chase money  for  land  upon  proof  of  a  defect  of  the  title  where  no  unit  is 


REMEDY  BY  INJUNCTION COLLECTION  OF  PURCHASE  MONEY.       937 

the  owner  of  the  outstanding  title  are  barred  by  the  Statute  of 
Limitations.56  Care  must  be  taken,  however,  to  distinguish  from 
these  cases  a  class  in  which  injunctions  to  prevent  a  sale  under  a 
deed  of  trust,  whether  executed  to  secure  deferred  payments  of 
the  purchase  money  for  land,  or  to  secure  general  indebtedness, 
have  been  freely  granted  in  Virginia  and  West  Virginia  upon  an 
allegation  that  there  is  a  cloud  upon  the  title  to  the  land  about 
to  be  sold.  In  such  a  case  the  injunction  is  granted  until  the 
cloud  on  the  title  is  removed.  This  is  done  in  the  interest  of  all 
parties  that  there  may  be  no  sacrifice  of  the  property  and  that  the 
title  of  the  purchaser  may  be  assured.57  If  the  purchaser  accept 
a  conveyance  from  his  vendor's  vendor,  with  the  agreement  be- 
tween all  parties  that  he  shall  pay  the  purchase  money  to  his  im- 
mediate vendor,  he  cannot,  on  failure  of  the  title,  enjoin  the  col- 
lection of  the  purchase  money.  He  will  be  forced  to  his  action 
on  the  covenants  of  his  grantor.58 

The  Statute  of  Limitations  does  not  run  against  the  right  of 
the  covenantee  to  detain  the  purchase  money  where  the  covenantor 
had  no  title.59 

pending  or  even  threatened.  But  even  here  a  distinction  has  always  been 
made  between  an  injunction  to  a  judgment  for  the  purchase  money  and  an 
injunction  to  a  sale  under  a  deed  of  trust.  In  the  latter  case  the  court  inter- 
feres the  more  readily  upon  the  ground  of  removing  a  cloud  upon  the  title 
in  order  to  prevent  a  sacrifice  of  the  property,  whereas,  in  a  like  case,  the 
court  will  not  interfere  with  the  vendor  in  enforcing  his  judgment  since  the 
doubt  about  the  title  may  eventually  .turn  out  to  be  frivolous  and  ground- 
less." 

58  Bennett  v.  Pierce,  50  W.  Va.  604,  40  S.  E.  395. 

"Miller  v.  Argyle,  5  Leigh  (Va.),  460  (508);  Gay  v.  Hancock,  1  Rand. 
(Va. )  72.  See,  also,  the  cases  cited,  ante,  §  337,  n.  50.  Lane  v.  Tidball, 
Gilm.  (Va.)  130;  Peers  v.  Barnett,  12  Grat.  (Va.)  416;  Morgan  v.  Glendy, 
92  Va.  86,  22  S.  E.  Rep.  854.  But  in  this  case  the  fact  that  the  vendor 
held  under  a  deed  of  trust  sale,  which  the  trustee  had  improperly  made,  he 
being  one  of  the  creditors  secured  by  the  trust,  was  held  no  such  defect  in 
the  title  as  would  justify  an  injunction  against  a  sale  under  a  trust  to  secure 
the  purchase  money,  where  the  evidence  satisfactorily  showed  that  the  pro- 
ceeds of  sale  under  the  first  mentioned  trust  had  all  been  properly  accounted 
for,  except  a  trifling  amount. 

68  Price  v.  Ayres,  10  Grat.   (Va.)   575. 

69  Smith  v.  Ward,  66  W.  Va.  190,  66  S.  E.  234,  33  L.  R.  A.   (N.  S.)    1030. 

118 


CHAPTER  XXXV. 

RESCISSION*  IX  CASES  OF  FRAUD  AND  MISTAKE. 

FRAUD  ON  THE  PART  OF  THE  GRANTOR.    §  338. 

General  principles. 

Damages  in  equity.   §  339. 
MISTAKE   OF   FACT.     §   340. 

General  rule. 

Negligence  of  purchaser.     §  341. 

Immaterial  mistakes.     §   342. 

Mistakes  as  to  quantity.    §  343. 
MISTAKE   OF  LAW.     §   344. 

General  rule. 

Distinction  between  ignorance  of  law  and  mistake  of  law.    §  345. 

Erroneous  construction  of  devise  or  grant.    §  346. 

Where  the  construction  of  the  law  is  doubtful.    §  347. 

Misrepresentation  of  the  law  by  the  vendor.    §  348. 

§  338.  FRAUD  ON  THE  PART  OF  THE  GRANTOR.  General 
principles.  Equity  accomplishes  the  rescission  of  an  executed  con- 
tract by  cancelling  the  written  evidence  thereof,  and  decreeing  that 
either  party  shall  restore  to  the  other  whatever  he  has  received  in 
performance  of  the  contract.  Few  cases,  it  has  been  said,  turn  on 
greater  niceties  than  those  which  involve  the  question  whether  a 
contract  ought  to  be  delivered  up  to  be  canceled,  or  whether  the 
parties  should  be  left  to  their  legal  remedy.1  The  jurisdiction  of 
equity  in  such  cases  has  been  reduced  to  very  narrow  limits;  and, 
where  it  has  been  invoked  by  the  purchaser  on  failure  of  the  title, 
has  been,  with  certain  seeming  exceptions,  invariably  denied,  un- 
less the  purchaser  was  induced  to  accept  the  conveyance  by  a 
fraudulent  misrepresentation  or  concealment  of  facts  on  the  part 
of  the  vendor,  or  unless  the  parties  were  mutually  mistaken  as  to 
the  existence  of  some  fact  or  facts  upon  which  tho  validity  of  the 
title  depended.1  The  exceptions  to  this  rule  arc  those  cases  in 
which  tho  purchaser  is  permitted  to  enjoin  tho  collection  of  the 

*1  Sugd.  Vend.  243. 

'Ante,  5  267.  Willan  v.  Willan,  16  Ve*.  83;  Madden  v.  Leak,  5  J.  J. 
Marsh.  (Ky.)  05;  Ogden  v.  Voder,  5  J.  J.  Marsh.  (Ky.)  424. 

[938] 


RESCISSION   IN   CASES   OF   FRAUD  AND   MISTAKE,  939 

purchase  money  where  the  grantor  is  insolvent  or  a  non-resident 
so  that  recovery  against  him  will  be  either  impossible  or  unavail- 
ing when  an  eviction  shall  have  occurred.3  Other  exceptions,  indi- 
cated rather  than  positively  declared,  by  a  line  of  authorities 
already  referred  to,  are  those  cases  in  which  the  grantee  upon  a 
clear  and  acknowledged  failure  of  the  title  accompanied  by  a 
moral  certainty  of  eviction  will  be  permitted  to  detain  the  pur- 
chase money  provided  he  reconveys  the  premises  to  the  grantor.4 
In  one  of  the  States,  and  possibly  in  others,  having  paid  the  pur- 
chase money  in  full  and  received  a  conveyance  with  covenants  for 
title,  thie  grantee  will,  on  a  clear  failure  of  the  title,  be  allowed  to 
file  his  bill  in  equity  for  a  rescission  of  the  contract  and  return  of 
the  purchase  money  if  the  grantor  is  insolvent  or  a  non-resident.5 
A  decree  for  the  rescission  of  an  executed  contract  must  provide 
that  within  a  reasonable  time  the  grantee  shall  execute  a  recon- 
veyance duly  probated  for  registration  in  the  State  in  which  the 
land  lies.6  But  a  mere  delivery  of  a  deed  to  the  purchaser  without 
acceptance  thereof  by  him,  will  not  oblige  him  to  execute  a  recon- 
veyance before  he  can  recover  the  purchase  money,  the  deed  hav- 
ing misdescribed  the  property.7  Of  course  a  covenantee  who  has 
been  evicted  from  the  premises,  cannot  maintain  a  suit  in  equity 
to  rescind  the  contract  and  recover  back  the  purchase  money.  His 
remedy  at  law  is  adequate  and  complete.  He  has  a  present  right 
to  recover  substantial  damages  for  breach  of  the  covenant.8 

8  Ante,  ch.  34.  Where  the  grantor  is  insolvent,  and  a  recovery  on  his  cove- 
nants for  title  would  prove  unavailing,  equity  will  decree  a  rescission  of  the 
contract.  Parker  v.  Parker,  93  Ala.  80,  9  So.  Rep.  426.  Aliter,  where  there 
was  no  fraud  and  no  insolvency.  Fields  v.  Clayton,  117  Ala.  538,  23  So. 
Rep.  530. 

4  Ante,  ch.  26. 

5Brannen  v.  Curtis,  (Tenn.  Ch.  App.)  53  S..W.  Rep.  234.  In  this  case  the 
purchaser  was  held  entitled  to  the  return  of  the  purchase  money  and  interest, 
taxes  paid  by  him,  and  the  value  of  his  improvements,  and  was  charged  with 
the  annual  rental  value  of  the  land. 

6 Winfrey  v.  Drake,  4  Lea   (Tenn.),  290. 

TFenton  v.  Alsop,  79  Cal.  402,  21  Pac.  Rep.  839. 

80hling  v.  Luitjens,  32  111.  23.  See,  also,  Bradley  v.  Dibrell,  3  Heisk. 
(Tenn.)  522,  where  the  complainant  setting  out  facts  showing  a  breach  of 
warranty  only,  amended  his  bill  charging  fraud  and  misrepresentation  by 
the  vendor. 


940  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

The  jurisdiction  of  a  court  of  equity  to  rescind  a  contract  for 
the  sale  of  lands  which  has  been  executed  by  a  conveyance,  on  the 
ground  of  fraudulent  misrepresentation  or  concealment  of  facts 
respecting  the  title,  is  clear  and  undoubted.9  We  have  already 
seen  what  acts,  conduct  and  declarations  of  the  vendor  in  relation 
to  the  title  during  the  negotiations  of  the  parties,  are  to  be  deemed 
fraudulent;  also,  when  the  purchaser  will  'be  deemed  to  have 
waived  his  right  to  rescind  because  of  the  fraud,  and  that  fraud, 
of  which  he  was  ignorant,  cannot  be  regarded  as  merged  in  the 
conveyance  which  he  accepts ;  also  when  the  purchase  money  may 
be  detained  or  recovered  back,  or  damages  recovered  at  law,  or 
the  collection  of  the  purchase  money  stayed  by  injunction,  in 
cases  of  fraud.10  We  have  seen  that  one  who  has  been  induced 

•1  Sugd.  Vend.  (Sth  Am.  ed.)  375  (24G)  ;  Dart  V.  &  P.  377;  Bigplow  on 
Fraud,  415.  Berry  v.  Armistead,  2  Keen,  221 ;  Gibson  v.  D'Este,  2  Y.  &  C. 
542;  Greenlee  v.  Gaines,  13  Ala.  198,  48  Am.  Dec.  49;  Read  v.  Walker,  18 
Ala.  323;  Lanier  v.  Hill,  25  Ala.  554,  where  an  administrator,  o.  t.  a.,  fraudu- 
lently represented  that  he  had  authority  under  the  will  to  sell.  Foster  v. 
Cresset,  29  Ala.  393;  Bryant  v.  Boothe,  30  Ala.  311,  68  Am.  Dec.  117; 
Williams  v.  Mitchell,  30  Ala.  299;  Prout  v.  Roberts,  32  Ala.  427;  Parham 
v.  Randolph,  4  How.  (Miss.)  451,  35  Am.  Dec.  403;  Davidson  v.  Moss,  5  How. 
(Miss.)  673;  English  v.  Benedict,  25  Miss.  167;  Rimer  v.  Dugan,  39  Miss. 
477,  77  Am.  Dec.  637;  Fitch  v.  Baldwin,  17  Johns.  (X.  Y.)  161;  Shackel- 
ford  v.  Handly,  1  A.  K.  Marsh.  (Ky.)  495;  10  Am.  Dec.  753;  Peebles  T. 
Stephens,  3  Bibb  (Ky.),  324,  6  Am.  Dec.  6CO;  Glass  v.  Brown,  6  T.  B.  Mon. 
(Ky.)  356;  Bank  v.  Bank,  7  Lea  (Tenn.),  420;  Rice  v.  Silverton,  170  111. 
342,  48  N".  E.  Rep.  969;  Zuenker  v.  Kuehn,  113  Wis.  421,  88  N.  W.  Rep. 
005;  Ramirez  v.  Barton,  (Tex.  Civ.  App.)  41  S.  W.  Rep.  508;  Corbett  v. 
McGregor.  (Tex.  Civ.  App.)  84  S.  W.  Rep.  278:  Buchanan  v.  Burnett,  102 
Tex.  492,  119  S.  W.  1141,  132  Am.  St.  Rep.  900;  Brador  v.  Zbranek,  (Tex. 
Civ.  App.),  213  S.  W.  331;  Ison  v.  Saunders,  163  Ky.  005,  174  S.  W.  505; 
Fisher  v.  Hurley,  (N.  J.  Eq.)  100  All.  506,  a  case  of  knowingly  false  repre- 
-••ntation  by  the  grantor  that  she  had  a  right  of  way  over  adjoining 
premiMM. 

"Ante,  1$  102,  270,  329.  The  fact  that  a  railway  company,  as  grantor  in  a 
quit-claim  deed,  refers  to  a  certain  public  land  grant  as  the  source  of  its  title, 
which  grant  turns  out  to  be  invalid,  is  not  sufficient  to  fix  fraud  upon  the 
company.  Union  Pac.  R.  Co.  v.  Barnes,  64  Fed.  Rep.  80.  The  grantee  is 
entitled  to  rescind  whether  the  grantor  did,  or  did  not,  know  that  1m 
representations  were  false.  Buchanan  v.  Burnett,  52  Tex.  Civ.  App.  <;•. 
114  S.  W.  406.  The  representation  of  the  grantor  that  he  had  a  fee  simple 
title,  when  his  only  interest  was  under  a  contract  of  sale  to  him  subject  to 
overdue  mortgages,  entitled  the  grantee  to  rescission  of  the  executed  con- 
tract. Allen  v.  Tallmt,  170  Mich.  664,  137  N.  W.  97. 


RESCISSION   IN   CASES   OF   FRAUD  AND   MISTAKE.  941 

to  accept  a  conveyance  of  lands  through  the  fraudulent  representa- 
tions of  the  grantor  respecting  the  title,  is  not  limited  to  his  action 
on  the  covenants  contained  in  the  deed.  Equity  has  concurrent 
jurisdiction  with  courts  of  law  in  cases  of  fraud,  and  the  objection 
that  a  grantee,  seeking  rescission  of  the  contract,  should  sue  at 
law  on  his  warranty,  or  in  trespass  for  deceit,  will  not  be 
entertained.11 

The  general  rule  is  that  on  application  for  the  rescission  of  an 
executed  contract  in  case  of  fraud,  the  purchaser  must  reconvey  or 
offer  to  reconvey  the  estate  to  the  grantor,  just  as  he  must  restore 
the  premises  to  the  vendor  and  place  him  in  statu  quo  on  rescission 
of  an  executory  contract.  But  this  rule  has  been  held  not  to  apply 
where  the  purchaser  has  never  been  in  possession  and  the  vendor 
had  absolutely  no  title.  In  such  a  case  the  title  is  considered 
worthless,  and  the  rule  is  the  same  whether  the  subject  of  the  con- 
tract be  real  or  personal  property;  if  the  thing,  the  consideration 
of  which  is  sought  to  be  recovered  back,  is  entirely  worthless,  thera 
is  no  duty  to  return  it.12  Neither  does  the  rule  apply  if  it  be  clear 
that  the  seller  will  not  receive  back  the  premises.13  It  has  been 
held  in  a  case  in  which  the  conveyance  was  a  forgery,  and  the 
alleged  owner  of  the  property  a  fictitious  person,  that  the  grantee 
was  under  no  obligation  to  execute  a  reconveyance  of  the  prem- 
ises.1* The  purchaser  will  be  entitled  to  a  decree  for  the  value  of 
his  improvements,  upon  rescission  of  an  executed  contract  for  the 
sale  of  lands  on  the  ground  of  fraud  or  mistake  respecting  the 

"Ante,  §  270.  1  Story  Eq.  Jur.  §  193;  Adams  Eq.  177;  3  Pars.  Cont.  177; 
Meek  v.  Spfacher,  87  Va.  162,  12  S.  E.  Rep.  397;  Perry  v.  Boyd,  126  Ala. 
162,  28  So.  Rep.  711.  But  even  in  those  jurisdictions  in  which  the  distinc- 
tions between  legal  and  equitable  procedure  have  been  abolished,  an  action  to 
rescind  for  fraud  cannot  be  joined  with  an  action  on  the  covenants  for  title, 
since  the  former  disaffirms,  while  the  latter  affirms,  the  contract.  McLennan 
v.  Prentice,  (Wis.)  55  N".  W.  Rep.  764. 

12  Bond  v.  Ramsey,  89  111.  29;  Babcock  v.  Case,  61  Pa.  St.  427,  100  Am. 
Dec.  C5i.  Here  tha  venlor  conveyed  land  which  he  held  under  a  tax  deed, 
but  it  appeared  that  the  land  had  been  sold  for  taxes  when  none  were  due 
thereon.  Jandorf  v.  Patterson,  90  Mich.  40,  51  N.  W.  Rep.  352. 

"Ante,  §  261.     Culbertson  v.  Blanchard,  79  Tex.  486,  15  S.  W.  Rep.  700. 

"Wheeler  v.  Standley,  50  Mo.  509.  See  also  Mills  v.  Morris,  156  Wise. 
38,  145  N.  W.  369,  where  the  title  to  the  property  was  in  a  step-son  of  the 
grantor,  who  was  fraudulently  represented  by  her  to  be  dead. 


942  MARKETABLE    TITLE    TO    REAL    ESTATE. 

title ;  also  for  taxes  paid  by  him,  with  interest  thereon,  and  on  the 
sums  expended  in  good  faith  by  him  for  permanent  improve- 
ments.15 But  he  must  account  for  the  rents  and  profits.1'  He  is 
also  entitled  to  a  lien  on  such  interest  as  the  grantor  has  in  the 
land,  to  secure  the  return  of  the  purchase  money  paid  by  him.17 

If  the  grantee  intends  to  rely  upon  the  grantor's  fraud  as  ground 
for  rescinding  the  contract,  he  must  distinctly  allege  the  fraud  in 
his  pleadings,  so  that  issue  may  be  taken  thereon.18  But  it  will 
suffice  to  allege  the  specific  fraudulent  representation  that  was 
made,  without  setting  out  facts  showing  a  want  of  title.1* 

We  have  seen  that  a  purchaser  electing  to  rescind  the  contract  on 
the  ground  of  fraudulent  representations  as  to  the  title,  must  act 
promptly  on  discovery  of  the  fraud.20  Whether  he  has  or  has  not 
waived  his  right  to  rescind  must  of  course  be  determined  by  the 
circumstances  of  each  particular  case. 

§  339.  Damages  in  equity.  According  to  the  English  equity 
practice,  until  within  a  comparatively  recent  period,  no  damages 
could  be  awarded  to  a  purchaser,  upon  the  rescission  of  a  contract 
induced  by  the  fraud  of  the  defendant.  But  now  by  statute  in 
England  equity  may  give  damages  in  such  a  case.21  In  America, 
the  rule  seems  to  be  that  equity  will  not  take  jurisdiction  of  a  suit 
for  damages,  when  that  is  the  sole  object  of  the  bill,  and  when  no 
other  relief  can  be  given;  but  if  other  relief  is  sought  by  the  bill 
which  a  court  of  equity  is  alone  competent  to  grant,  and  damages 
are  claimed  as  incidental  to  that  relief,  the  court,  being  properly 

"Perry  v.  Boyd,  126  Ala.  162,  28  So.  Rep.  711. 

"Baptiste  v.  Peters,  51  Ala.  158;  Allen  v.  Talbot,  170  Mich.  664,  137 
N.  W.  97. 

"Ramirez  v.  Barton,  (Tex.  Civ.  App.),  41  S.  W.  Rep.  508. 

"Hart  v.  Hannibal  A  St.  Jo.  R.  Co.,  65  Mo.  509;  James  v.  McKernon,  6 
Johns.  (X.  Y.)  543;  Patton  v.  Taylor,  7  How.  (U.  S.)  159. 

"Orendorff  v.  Tollman,  00  Ala.  041,  7  So.  Rep.  821. 

"Ante,  8  276.  Where  it  appeared  that  the  purchasers  were  non-residents, 
and  that  the  prevalence  of  yellow  fever  in  the  vendor's  locality  prevented 
an  earlier  offer,  it  waa  held  that  an  offer  to  rescind  made  six  months  after 
discovery  of  the  fraud,  was  made  within  a  reasonable  time.  Orendorff  v. 
Tullman,  90  Ala.  641,  7  So.  Rep.  821.  See  Allen  v.  Talbot,  170  Mich.  664, 
137  N.  W.  97,  for  circumstances  excusing  the  failure  of  the  grantee  to  act 
promptly. 

"1  Sugd.  Vend.  (14th  ed.)  55,  233,  25J,  21  &  22  Viet.  c.  27. 


RESCISSION   IN    CASES   OF   FRAUD  AND   MISTAKE.  943 

in  possession  of  the  cause,  will,  to  prevent  multiplicity  of  suits, 
proceed  to  determine  the  whole  cause.22  This  rule,  doubtless,  pre- 
vails at  the  present  time  in  those  States  in  which  the  distinction 
between  legal  and  equitable  procedure  is  still  maintained.  In 
other  States,  where  that  distinction  has  been  swept  away  or  has 
never  existed,  it  is  presumed  that  the  courts  in  rescinding  a  con- 
tract, voidable  on  the  ground  of  fraud,  have  power  to  give  judg- 
ment for  whatever  damages  the  party  defrauded  may  have  sus- 
tained. In  Kentucky  it  has  been  held  that  equity  will  not  enter- 
tain a  bill  seeking  damages  for  fraudulent  representations  by  the 
vendor  as  to  his  title.  In  such  a  case  equity  relieves  by  setting 
aside  the  contract  entirely,  and  not  by  awarding  compensation  in 
damages,  except,  perhaps,  where  the  complainant  has,  for  some 
reason,  an  inadequate  remedy  at  law.23 

§  340.  MISTAKE  OF  FACT.  General  rules.  Mistake  of  fact,  and 
in  some  cases  mistake  of  law,  has  been  held  clear  ground  for 
rescinding  an  executed  contract  for  the  sale  of  lands,  and  for  re- 
fusing specific  performance  of  those  which  are  executory.24  The 
question  of  mistake,  as  it  affects  the  right  to  rescind  an  executory 
contract,  is  lowered  in  importance  by  the  general  rule  which  per- 
mits the  rescission  of  such  a  contract  on  a  clear  failure  of  the  title 
irrespective  of  other  considerations,  unless  that  right  has  been 
waived,  or  the  vendor  is  allowed  to  perfect  the  title.25  But  exe- 

22  Ferson  v.  Sanger,  Davies  (U.  S.),  252,  261.  In  Alger  v.  Anderson,  92 
Fed.  Rep.  696,  it  was  held  that  the  grantee,  holding  under  a  deed  with  a 
covenant  of  warranty,  who  had,  by  his  laches,  waived  his  right  to  a  rescission 
of  the  executed  contract  on  the  ground  of  fraudulent  misrepresentations  as 
to  the  title,  could  not  maintain  a  bill  in  equity  to  recover  damages  for  fail- 
ure of  title  to  part  of  the  property,  he  not  having  been  disturbed  in  the 
possession  of  the  property. 

23Colyer  v.  Thompson,  2  T.  B.  Mon.  (Ky.)  16,  citing  Hardwick  v.  Forbes, 
1  Bibb  (Ky.),  212;  Waters  v.  Mattingly,  1  Bibb  (Ky.),  244.  4  Am.  Dec.  631; 
Robinson  v.  Galbreath,  4  Bibb  (Ky. ),  183,  which  were  all  cases  in  which  the 
contract  was  for  the  sale  of  personal  property. 

34  By  the  civil  law  an  action  of  redhibition  to  rescind  a  sale  and  to  compel 
the  vendor  to  take  back  the  property  and  restore  the  purchase  money,  could 
be  brought  by  the  vendee  wherever  there  was  error  in  the  essentials  of  the 
agreement,  although  both  parties  were  ignorant  of  the  defect  which  rendered 
the  property  unavailable  to  the  purchaser  for  the  purposes  for  which  it  was 
intended.  Bates  v.  Delavan,  5  Paige  Ch.  (N.  Y.)  307. 

26  As  to  the  right  to  rescind  an  executory  contract  on  the  ground  of  mistake 


944  IARKETABLE    TITLE    TO    BE-AL    ESTATE. 

cuied  contracts  can,  as  a  general  rule,  be  rescinded  only  upon  the 
ground  of  fraud  or  mistake.  A  distinction  then  is  to  be  observed 
between  the  cases  which  have  arisen  under  these  two  heads.26  The 
cases  in  which  rescission  of  an  executed  contract  for  the  sale  of 
laud  on  the  ground  of  mistake  as  to  the  title  has  been  sought,  may 
be  divided  into  two  classes:  (1)  Those  in  which  there  was  a 
mutual  mistake  of  the  parties  as  to  the  existence  or  non-existence 
of  some  particular  fact  or  facts  upon  which  the  validity  of  the  title 
depends,  and  which  the  parties  must  be  presumed  to  have  had  in 
contemplation  at  the  time  the  conveyance  was  made.27  (2)  Those 
in  which  the  parties  were  correctly  informed  as  to  all  the  facts,  but 
were  mistaken  in  their  application  of  the  law  thereto.  Of  the 
former  class  are  cases  in  which  the  purchase  is  of  an  interest  or 
estate  liable  to  be  divested  upon  the  happening  of  a  particular 
event,  and  that  event  has  already  transpired  without  the  knowl- 
edge of  the  parties,28  as  where  the  purchaser  of  an  estate,  pur  autre 

as  to  the  title,  see  Mead  v.  Johnson,  3  Conn.  507;  Smith  v.  Robertson,  23  Ala. 
312;  Smith  v.  Mac-kin,  4  Lans.  (X.  Y.)  41;  Post  v.  Leet.  8  Paige  Ch.  (N.  Y.) 
336;  Davis  v.  Heard,  44  Miss.  51;  Armistead  v.  Hundley,  7  Grat.  (Va.)  64; 
Gilroy  v.  Alis,  22  Iowa,  174. 

"Hunt  v.  Hall.  12  Wis.  125. 

^Kabours  v.  Cocke,  24  Miss.  44,  where  the  validity  of  the  title  acquired 
under  a  sheriff's  deed  depended  upon  the  fact  that  a  forthcoming  bond  had 
been  given  by  the  execution  defendant,  and  the  parties  acted  under  the  mis- 
taken belief  that  the  bond  had  been  given.  Martin  v.  McCormiek.  8  X.  Y.  3^.1. 
In  this  case,  the  plaintiff  purchased  a  tax  title  from  the  defendant,  both 
bring  ignorant  that  the  premises  had  been  redeemed  by  a  party  entitled.  It 
was  held  that  the  plaintiff  might  recover  back  the  purchase  money.  A  mis- 
take in  the  In-lief  that  a  tract  of  land  claimed  under  the  preemption  law  is 
within  a  district  in  which  the  lands  may  be  preempted,  is  a  mistake  of  fact 
and  not  a  mistake  of  law.  More-land  v.  Atchison.  19  Tex.  303.  In  Baptists 
v.  Peters,  51  Ala.  1">8,  land  conveyed  was  supposed  to  be  the  separate  estate 
of  a  married  woman,  when  in  fact  it  belonged  to  her  deceased  husband's 
estate,  and  adjoined  the  separate  property  of  the  wife.  The  contract  was 
rescinded  on  the  ground  that  there  was  a  mistake  of  fact.  Where  an  ad- 
ministrator sold  an  estate  supposing  his  title  to  In-  in  fee,  and  the  purchaser 
supposed  he  was  buying  a  fee,  and  nothing  passed  but  an  equity  of  redemp- 
tion, it  was  held  "  a  case  of  mixed  and  mutual  mistake  of  law  and  fact," 
and  that  the  purchaser  was  entitled  to  relief.  Griffith  v.  Townley,  flfl  Mo.  13, 
33  Am.  Hep.  470. 

Ml  Story  Kq.  Jur.  (13th  ed.)  ft  143;  Hitchcock  v.  Giddings,  4  Price,  135. 
This  is  the  leading  English  case  on  the  point.  The  purchaser  l>ought  an 
interest  in  a  remainder  in  fee  expectant  on  an  estate  tail.  At  the  time  of 


RESCISSION   IN    CASES   OF   FRAUD  AND   MISTAKE.  945 

vie,  takes  a  conveyance  in  ignorance  of  the  fact  that  the  person 
on  whose  life  the  estate  depends  is  dead.26  Of  the  same  class  is  a 
case  in  which,  at  the  time  of  the  sale,  the  parties  were  ignorant 
that  the  land  had  previously  been  sold  and  conveyed  by  one  acting- 
tinder  a  power  of  attorney  from  the  vendor,30  or  that  the  deed 
under  which  the  grantor  held  was  a  forgery.31  In  all  such  cases, 
the  subject-matter  of  the  contract  has  no  existence;  there  is  no 
estate  nor  title,  de  facto  or  de  jure,  in  the  grantor,  and  the  grantee 
is  as  much  entitled  to  rescission  as  the  buyer  of  a  chattel  which,  at 
the  time  of  the  sale,  had  been  destroyed  without  the  knowledge  of 
either  party.32  But  care  must  be  taken  to  distinguish  between 

the  purchase,  the  tenant  in  tail  had  barred  the  remainder  by  suffering  a  com- 
mon recovery,  of  which  fact  the  parties  were  ignorant  until  after  a  con- 
veyance had  been  executed.  The  court  rescinded  the  contract  on  the  ground 
of  mistake,  resting  the  decision  on  the  fact  that  the  vendor  had  no  interest 
in  the  subject-matter  at  the  time  of  the  sale.  Lord  ST.  LEONARDS  has 
expressed  himself  in  guarded  terms  about  this  case,  and  Lord  ELDO^  doubted 
its  authority.'  1  Sugd.  Vend.  (8th  Am.  ed.)  376  (247). 

29  Allen  v.  Hammond,  11  Pet.  (U.  S.)  63,  ob.  diet. 

30  Armstead  v.  Hudley,  7  Grat.  (Va.)   52. 

31  Home  v.  Hughes,   19   Cal.   App.   6,    124  Pac.   736.     Case  in  which   the 
purchaser  was  granted   relief  though  vendor  had  conveyed  to  him  by  quit- 
claim only.     Holden  v.  Reed,  45  Tex.  Civ.  App.  465,  101  S.  W.  288.     Where 
two  persons  erroneously  believed  themselves  to  be  the  heirs  of  A.  by  adoption, 
and  one  conveyed  to  the  other  his  supposed  interest  in  the  lands  of  A.,  it 
was  held   that   the   mistake   was    one   of   fact,    and   that    the   grantee    was 
entitled  to  a  cancellation  of  the  deed.     Lewis  v.  Mote,   140  Iowa  698,  119 
N.  Y.  152. 

32  It  will  be  found  that  in  nearly  all  of  the  cases  cited  below  no  possession 
was  ever  given  to,  or  taken  by,  the  purchaser,  and  in  some  that  the  supposed 
subject-matter  of  the  contract  had  not  even  a  physical  existence.     The  rule 
stated  in  the  text  has  been  applied  in  the  following  cases,  among  others: 
Gardner  v.  Mayo,  26  Barb.   (N.  Y.)   423,  where  a  municipal  corporation  sold 
a  lot  to  enforce  an  assessment,  and  owing  to  a  defect  in  the  assessment  pro- 
ceedings, the  title  was  bad.     Martin  v.  McCormick,   4   Seld.    (N.   Y.)    331, 
where  a  tax  title  had  been   purchased  under   the  mistaken  belief   that   the 
time  for  redemption  had  expired.     In  Granger  v.   Olcott,   1   Lans.    (N.   Y.) 
169,  the  principle  stated  in  the  text  was  recognized,  but  relief  was  refused 
the  purchaser  of  a  defective  tax  title  on  the  ground  that  the  parties  con- 
sidered the  title  to  be  doubtful  when  the  contract  and  conveyance  were  made. 
In  Goettel  v.   Sage,   117   Pa.   St.   298,    10  Atl.  Rep.   889,   through  a  blunder 
on  the  part  of  a  tax  assessor,  land  had  been  sold  for  taxes  on  which  none 
were  in  fact  due.     The  holder  of  the  tax  deed  sold  and  conveyed  the  premises 
to  a  third  person,  the  parties  acting  upon  the  advice  of  an  attorney,  who  had 

119 


MARKETABLE    TITLE    TO    REAL    ESTATE. 

mistake  as  to  the  existence  of  an  estate  of  any  kind  in  the  grantor, 
de  facto  or  de  jure,  and  mere  ignorance  of  the  existence  of  a 
paramount  title  to  the  estate  in  a  stranger,  e.  g.,  mere  ignorance  of 
the  fact  that  a  deed  in  the  grantor's  chain  of  title  is.  for  any  reason, 
inoperative  to  pass  the  title.  In  such  a  case,  the  ignorance  of  the 
defect  is  no  ground  for  rescinding  the  contract,  for  one  of  the  chief 
purposes  of  taking  a  conveyance  with  general  warranty  is  to  pro- 
vide against  defects  of  title  of  which  the  parties  are  ignorant.33 

examined  the  title  and  pronounced  it  good.  It  was  held  that  the  subject- 
matter  of  the  contract  having  no  existence,  there  was  a  mistake  of  fact  which 
entitled  the  purchaser  to  relief.  In  Hyne  v.  Campbell,  6  T.  B.  Mon.  (Ky.) 
286,  the  grantor  held  under  a  conveyance  from  William  May,  whom  he 
believed,  and  innocently  represented  to  the  grantee,  to  have  been  the  patentee 
of  the  land,  whereas  the  patent  had  been  issued  to  George  May,  and  William 
May  had  no  title  whatever.  The  conveyance  was  canceled  on  the  ground  of 
mistake.  So,  also,  in  Bowlin  v.  Pollock,  7  T.  B.  Mon.  (Ky. )  26,  where  a 
testator  devised  certain  public  lands  which  he  claimed,  but  had  not  entered 
upon  or  entitled  himself  to  a  patent  when  he  died,  and  his  devisee  sold  and 
conveyed  the  land,  all  parties  believing  the  title  to  be  good.  In  Hurd  v. 
Hall,  12  Wis.  112,  A.  purchased  certain  school-land  certificates,  in  ignorance 
of  the  fact  that  they  were  void  because  the  school  commissioners  had  not 
complied  with  certain  provisions  of  the  law  relating  to  such  sales,  and  it  was 
held  that,  there  being  a  mistake  of  fact,  the  purchaser  \va-  entitled  to  a 
rescission  of  the  contract.  Cited  and  approved  in  Lawton  v.  Howe,  14  Wis. 
241;  Costigan  v.  Hawkins,  22  Wis.  74,  94  Am.  Dec.  583;  Paul  v.  Kenosha, 
22  Wis.  266,  94  Am.  Dec.  598. 

"Middlekauff  v.  Barrick,  4  Gill  (Md.),  290,  299;  Bates  v.  Delavan,  5  Paige 
(N.  Y.),  299;  Sutton  v.  Button,  7  Grat.  (Va.)  234,  56  Am.  Dec.  109.  See 
the  remarks  of  the  court  in  Hurd  v.  Hall,  12  Wis.  125.  133;  Trevino  v.  Canlu, 
61  Tex.  88,  where  it  is  said  that  covenants  are  intended  to  cover  such  cases. 
A  purchaser,  who  is  evicted  because  his  legal  adviser  overlooks  a  defect  in 
the  title,  cannot  rescind  the  contract  on  the  ground  of  mistake  and  recover 
back  the  purchase  money.  Urmston  v.  Pate,  cited  in  Wakeman  v.  Duchess 
of  Rutland,  3  Ves.  235,  n. 

The  reasoning  of  the  text  is  satisfactory  where  the  paramount  title  ia 
found  to  In-  in  a  stranger.  But  suppose  that  the  title  is  in  the  purchaser 
himself,  as  where  the  vendor  held  under  a  conveyance  from  a  married  woman 
insufficiently  executed  and  acknowledged  to  pass  her  estate,  and  upon  her 
death  her  heir,  in  ignorance  of  the  facts,  purchased  the  estate  from  her 
grantee,  and  took  a  conveyance  without  warranty.  In  such  a  case,  according 
to  the  authorities,  there  i»  no  doubt  that  equity  would  rescind  the  contract 
at  the  suit  of  »he  purchaser;  yet  it  would  be  difficult  to  distinguish  such  a 
case  from  one  in  which  the  title,  for  a  like  reason,  in  found  to  be  outstand- 
ing in  a  Ht ranger.  See,  in  this  connection,  the  observation  of  Lord  COTTEN- 
HAM.  in  Stevviirt  v.  Stewart,  0  O.  &  Fin.  008,  that  "  it  might  not  be  easy  to 


RESCISSION   IN    CASES   OF   FRAUD  AXD   MISTAKE.  947 

The  words  "mistake  of  fact/'  used  in  this  connection,  would  seem 
to  imply  some  particular  fact  or  facts  to  which  the  attention  of  the 
parties  was  specially  drawn,  and  which  must  be  supposed  to  have 
been  necessarily  contemplated  by  them  at  the  time  the  conveyance 
was  made.34  If  this  were  not  true,  any  conveyance  would  be  liable 
to  rescission  on  the  ground  of  mistake,  if,  after  it  had  been  exe- 
cuted, the  title  should  be  first  discovered  to  be  bad.35 

distinguish  a  case  where  the  purchaser  buys  his  own  estate  by  mistake  from 
any  other  purchaser  in  which  the  vendor  turns  out  to  have  no  title.  In  both 
there  is  a  mistake,  and  the  effect  of  it  on  both  is  that  the  vendor  receive? 
and  the  purchaser  pays  money  without  the  intended  equivalent."  Without 
attempting  to  discover  a  principle  upon  which  the  two  cases  may  be  dis- 
tinguished, we  content  ourselves  with  stating  the  rule  as  we  find  it,  namely, 
that  if  a  man  part  with  or  purchase  property  in  ignorance  of  facts  showing 
the  title  to  such  property  to  be  in  himself,  equity  will  rescind  the  contract 
and  restore  the  property  to  him,  or  relieve  him  from  any  liability  or  loss 
incurred  in  the  premises.  Where  there  has  been  a  breach  of  the  covenant 
of  warranty,  there  generally  has  been  a  mistake  as  to  the  title  of  the  grantor, 
but  it  is  hardly  a  ground  on  which  the  grantor  can  expect  to  be  relieved  of 
his  covenant.  Language  of  the  court  in  Comstock  v.  Son,  154  Mass.  389, 
28  N".  E.  Rep.  596.  The  fact  that  the  grantor  believed  he  had  a  good  title 
cannot  relieve  him  from  liability  on  his  covenants.  Sanborn  v.  Gunter, 
(Tex.)  17  S.  W.  Rep.  117. 

81  It  is  scarcely  necessary  to  say  that  if  the  fact  rendering  void  the  title  is 
known  to  the  vendor  and  unknown  to  the  purchaser,  the  right  of  the  latter  to 
relief  is  grounded  not  so  much  upon  mistake  or  ignorance  of  facts  upon  his 
part  as  upon  a  fraudulent  concealment  of  the  facts  by  the  vendor.  1  Story's 
Eq.  Jur.  (13th  ed.)  §  147. 

35  In  Whittemore  v.  Farrington,  76  N.  Y.  452,  the  court  stated  the  facts 
and  the  law  thus :  "  The  question  is  then  reduced  to  this :  A  party  who, 
under  a  verbal  agreement  for  the  conveyance  to  him  of  lands  is  entitled  to 
insist  upon  a  good  title  and  a  deed  with  covenants,  pays  the  consideration 
and  is  then  tendered  a  deed  without  covenants.  He  demands  a  deed  with 
covenants,  and  this  is  refused.  He  then  accepts  the  deed  without  covenants, 
and,  believing  the  title  to  be  clear,  records  it  and  continues  to  occupy  and 
improve  the  property.  An  incumbrance  unknown  at  the  time  to  both  parties 
is  afterwards  discovered.  Both  parties  are  innocent  of  any  fraud.  It  is 
conceded  that  no  legal  liability  rests  upon  the  grantor  in  such  a  case.  Bates 
v.  Delavan,  5  Paige  (X.  Y.),  300;  Burwell  v.  Jackson,  9  N.  Y.  535.  In  the 
absence  of  fraud  or  covenants  a  purchaser  takes  the  title  at  his  own  risk. 
Then  do  the  facts  stated  entitle  the  plaintiff  to  any  equitable  relief?  We 
think  not.  The  theory  of  the  judgment  is  that  the  acceptance  of  the  quit- 
claim deed  in  performance  of  the  contract  of  exchange  may  be  set  aside  on 
the  ground  of  mistake,  and  the  contract  treated  as  still  executory,  and  a 
new  performance  in  a  different  manner  decreed.  The  theory  is  ingenious,  but 
is  not  founded  upon  any  legal  precedent  or  principle.  In  the  first  place 


948  MARKETABLE    TITLE    TO    REAL    ESTATE. 

If  a  man  purchase  his  own  estate  in  ignorance  of  facts  which 
would  show  his  right,  he  will  be  relieved  in  equity.30  Thus,  if  an 
heir  were  to  take  a  conveyance  of  his  own  inheritance,  ignorant  of 
the  fact  that  he  was  heir,  there  is  no  doubt  that  equity  would 
rescind  the  contract. 

there  was  no  mistake  as  to  the  character  of  the  deed  which  was  tendered 
and  accepted.  The  grantee  knew  that  by  accepting  it  he  took  the  risk  of 
any  defect  in  the  title  which  might  be  discovered.  He  was  not  led  into 
accepting  it  by  any  deception  or  suppression  on  the  part  of  the  grantor. 
Secondly,  the  delivery  and  acceptance  of  the  deed  constituted  a  full  execution 
of  the  prior  parol  contract.  The  title  to  the  land  passed  under  the  deed,  and 
the  original  contract  was  merged  in  it.  After  a  contract  has  been  thus 
fully  performed,  there  can  be  no  jurisdiction  in  equity  to  decree  a  second  per- 
formance. In  a  proper  case  equity  has  jurisdiction,  on  the  ground  of  mistake. 
to  reform  the  instrument  or  deed  by  which  a  prior  contract  has  been  executed 
or  performed,  but  to  authorize  the  exercise  of  this  jurisdiction  there  must 
have  been  a  mutual  mistake  as  to  the  contents  of  the  instrument  sought  to 
be  reformed,  or  else  mistake  on  one  part  and  fraud  upon  the  other.  Win  re 
both  parties  are  innocent  of  fraud,  and1  both  know  the  character  and  contents 
of  the  instrument,  it  cannot  be  reformed  in  equity  merely  on  the  ground  that 
one  of  the  parties  would  have  exacted  and  would  have  been  entitled  to  exact 
a  different  instrument  had  he  been  acquainted  with  facts  rendering  it  to  hi- 
interest  to  do  so,  or  which,  if  he  had  known  them,  would  have  caused  him 
to  reject  the  instrument  which  he  accepted.  It  is  beyond  the  power  even 
of  a  court  of  equity  to  make  contracts  for  parties.  The  jurisdiction  to  re 
form  written  instruments  in  cases  free  from  fraud  is  exercised  only  where 
the  instrument -actually  executed  differs  from  what  both  parties  intended  to 
execute  and  supposed  they  were  executing  or  accepting,  and  this  mistake 
will  be  corrected  in  equity  only  on  the  clearest  proof,  and  then  only  by 
making  the  instrument  conform  to  what  both  parties  intended.  But  an 
instrument  or  covenant,  the  nature  and  contents  of  which  are  fully  compre- 
hended by  both  parties  at  the  time  of  its  execution,  cannot  be  altered  iu  its 
terms  by  the  court.  See  Wilson  v.  Deen,  74  X.  Y.  531,  and  authorities  there 
cited.  If  the  decision  of  the  trial  court  in  this  case  can  be  sustained,  any 
purchaser  of  lands  who  accepts  a  deed  without  covenants  may  have  recourse 
against  his  grantor  for  a  subsequently-discovered  incumbrance  or  defect  in 
the  title,  provided  he  can  show  that  under  his  contract  of  purchase  he  might 
have  in-i-ted  on  a  deed  with  rmcnants,  and  that  he  liclieved  the  title  to  be 
clear  when  he  accepted  one  without  covenants.  If  the  grantor  and  grantee 
had  both  intended  that  this  deed  should  contain  covenants,  and  supposed  r 
the  time  of  it*  delivery  that  it  did  contain  them,  but  through  a  mistake  ot 
the  scrivener  they  had  been  omitted,  the  court  might  insert  them." 

Ml  S'upl.  Vend.  (14th  Kng.  ed.)  245.  Binpham  v.  Bingham,  1  Ves.  Sen. 
1J<; ;  CI...|MT  v.  I'liil.li-,  L.  II.,  2  H.  L.  170.  The.-e.  however,  were  tan-  m 
which  the  mistake  was  rather  as  to  the  law  applicable  to  known  facts  than 
mi-take  as  to  the  facts  themselves.  The  rule  is  thus  broadly  stated  by  Lord 


BESCISSION   IN    CASES   OF  FRAUD  AND   MISTAKE.  949 

It  has  been  held  that  the  purchaser  cannot  recover  back  the  pur- 
chase money  in  a  court  of  law  where  there  is  a  mutual  mistake  as 
to  title,  and  that  his  remedy  is  in  equity  by  suit  for  rescission,  the 
reason  being  that  the  grantor  cannot  recover  back  the  purchase 
money  and  at  the  same  time  retain  the  legal  title.37  Of  course, 
such  an  action  may  be  maintained  in  those  States  in  which  the 
distinction  between  legal  and  equitable  jurisdiction  no  longer 
exists,  or  where  the  courts  have  power  to  enter  judgment  with  a 
condition  that  it  shall  not  operate  until  the  plaintiff  reconveys  the 
premises  to  the  grantor.  And,  also,  where  no  such  land  is  in 
existence  as  that  which  the  deed  purports  to  convey.38 

The  fact  that  lands  which  are  no  part  of  the  premises  actually 
purchased,  and  to  which  the  vendor  has  no  title,  are  by  mistake 
irfcluded  in  the  conveyance,  is  no  ground  for  a  rescission  of  the 
contract  on  the  application  of  the  grantee.39  If  by  mistake  'there 
be  no  such  land  as  the  deed  purports  to  convey,  the  grantee  may 

ST.  LEONARDS  (1  Sugd-.  Vend.  [8th  Am.  ed.]  53'3)  :  "  If  a  .person  having  a 
right  to  an  estate  purchase  it  of  another  person,  being  ignorant  of  his  own 
title,  equity  will  compel  the  vendor  to  refun'd  the  purchase  money  with 
interest,  though  no  fraud  appears/'  It  is  obvious1  that  such.  "  ignorance  of 
title  "  may  consist  in.  ignorance  not  of  the  fact  of  title,  but  of  a  fact  or  facts 
on  which  the  title  depends,  or  of  ignorance  of  the  law  applicable  to  known 
facts  respecting  the  title.  Little  distinction-  seems  to  have  been  *nade  between 
ignorance  of  fact  and  ignorance  of  law  in  cases  in  which  the  party  has  acted 
upon  the  mistaken,  belief  that  he  had  no  interest  in  the  premises.  Newk 
Cont.  in  Eq.  ch.  28,  43*2.  See,  also,  Fitch  v.  Baldwin,  17  Johns.  (X.  Y.) 
16>.  Where  A.  set  up  an  adverse  claim  to  certain  land  and  afterwards 
compromised  it,  and  a  deed  was  made  to  him  upon-  valuable  consideration 
to  be  paid  by  him,  the  fact  that  at  the  time  of  the  compromise  his  claim  had 
ripened  into  a  perfect  title  under  the  Statute  of  Limitations,  was  held  not  to 
entitle  A.  to  rescind  the  contract  and  detain  the  consideration.  Little  v. 
Allen,  56  Tex.  133. 

37  Homer  v.  Purser,  20  Ala.  573.  The  reason  assigned  in  this  case  was  that 
the  legal  title  to  the  land  was  still  in  the  plaintiff,  and  that  he  could  not 
recover  back  the  purchase  money  and  retain  the  legal  title.  The  fact  was 
that  the  vendor,  intending  to  convey  a  lot  belonging  to  himself,  conveyed  one 
by  mistake  belonging  to  a  stranger,  who  was  in  possession,  and  the  grantee 
never  had  possession.  Under  such  circumstances,  at  the  first  glance  a  recon- 
veyance would  seem  unnecessary.  If,  however,  the  grantor  had  conveyed  with 
general  warranty  and  had  afterwards  acquired  title  to  the  premises,  it  would 
inure  to  the  benefit  of  the  grantee;  hence  the  necessity  of  a  reconveyance. 

^D'L'tricht  v.  Melchior,  1  Ball.   (Pa.)   428. 

19  Butler  v.  Miller,  15  B.  Mon.  (Ky.)  617. 


950  MARKETABLE    TITLE    TO    REAL    ESTATE. 

rescind  the  contract  and  recover  back  the  purchase  money,  whether 
the  deed  was  with  or  without  covenants  for  title.40  The  accept- 
ance of  a  deed  which,  by  mistake,  does  not  convey  the  lands  pur- 
chased does  not  preclude  the  grantee  from  detaining  the  purchase 
money  nor  from  recovering  it  back.  But  if  the  deed  conveyed 
lands  not  intended  to  be  included  therein,  the  grantee  would,  of 
course,  be  required  to  reconvey  the  same.41  And  it  may  be  stated, 
as  a  general  rule,  that  the  grantee  cannot  maintain  an  action  to 
recover  back  the  purchase  money  on  the  ground  of  mistake  in  a 
deed  which  may  be  reformed,  unless  he  has  first  applied  to  the 
grantor  for  a  correction  of  the  error.42  Of  course,  if  the  land  con- 
veyed be  not  that  which  was  purchased,  the  grantee  will  be  relieved 
in  equity ;  and  it  is  immaterial  in  such  cases  whether  the  convey- 
ance was  with  or  without  covenants  of  title.48  On  the  other  hand, 
if  the  vendee  gets  the  land  he  actually  purchased,  the  fact  that  it 
is  misdescribed  in  the  contract  will  not  entitle  him  to  rescind  until 
he  has  given  the  vendor  an  opportunity  to  correct  the  mistake, 
and  the  latter  refuses  so  to  do.44 

If,  by  mistake,  the  deed  includes  land  to  which  the  grantor  has 
no  title,  the  grantee  may  elect  to  retain  the  portion  to  which  the 
title  is  good;  the  grantor  is  not  entitled  to  rescission  as  to  the 
entire  property  on  the  ground  of  mistake.45 

"D'Utricht  v.  Melchior,  1  Dall.  (Pa.)  429;  Marvin  v.  Bennett,  8  Paige 
Ch.  (X.  Y.)  311.  In  Morse  v.  Elmendorff,  11  Paige  Ch.  (N.  Y.)  277,  it 
appeared  that  the  parties  contracted  for  the  sale  and  conveyance  of  a  sup- 
posed gore  of  land  which  had  in  fact  no  existence,  there  being  a  mistake  by 
both  parties  as  to  that  fact.  It  was  held  that  the  vendor  could  not  compel 
specific  performance  by  the  purchaser,  and  neither  could  the  latter  require 
the  vendor  to  convey  an  adjoining  lot  of  land  to  which  he  had  title. 

41  Frazier  v.  Tubb,  2  Heisk.  (Tenn.)  662.  The  fact  that  a  deed,  by  mistake, 
does  not  convey  the  land  intended  to  be  conveyed,  does  not  avoid  the  deed; 
and  the  grantee  may  recover  on  a  covenant  of  seisin  therein  contained  without 
first  having  the  deed  reformed.  Calton  v.  Lewis,  119  Ind.  181,  21  N.  E.  Rep. 
475;  Roehl  v.  Haumesser,  114  Ind.  311,  15  N.  E.  Rep.  345;  Gordon  v.  Good- 
man, 98  Ind.  269. 

u, Johnson  v.  Houghton,  19  Ind.  359.  See  ante,  ch.  12,  "Reformation  of 
Deeds." 

••Kyle  v.  Kavanaugh,  103  Mass.  356,  4  Am.  Rep.  560;  Spurr  v.  Benedict, 
99  Mass.  463. 

**Lamkin  v.  Reese,  7  Ala.  170,  citing  Long  v.  Brown,  4  Ala.  622;  Kvana 
v.  Boiling,  5  Ala.  550. 

«*Dorr  v.  Middleburg,  65  \V.  Va.  778,  65  8.  E.  97,  23  L.  R.  A.  (N.  S.)  9S7. 


RESCISSION   IN   CASES   OF   FEAUD  AND   MISTAKE.  951 

The  rule  that  the  grantee  on  rescission  of  the  contract  must 
reconvey  and  restore  the  premises  to  the  grantor  and  place  him 
substantially  in  statu  quo,  applies  as  well  where  the  contract  is 
rescinded  on  the  ground  of  mistake  as  for  other  reasons.  On  dis- 
covery of  the  mistake  the  purchaser  has  the  right  to  elect  to  rescind 
and  reconvey,  or  to  affirm  the  contract,  pay  the  purchase  money, 
and  look  to  his  covenants  for  relief.46  But  it  has  been  held  that  if 
by  mutual  mistake  a  part  of  the  warranted  premises  is  embraced 
within  the  limits  of  an  older  and  superior  grant,  the  purchaser  is 
entitled  to  detain  the  purchase  money  or  to  recover  it  back  pro 
tanto  without  offering  to  restore  the  premises  to  the  grantor.47 

§  341.  Negligence  of  purchaser.  If  by  reasonable  diligence 
the  party  seeking  relief  on  the  ground  of  mistake  of  fact  could 
have  been  correctly  informed  as  to  such  fact  he  will  not  be  entitled 
to  relief.  The  mistake  must  not  have  arisen  from  negligence, 
the  means  of  knowledge  being  easily  accessible.48  Thus  it  is 
apprehended  that  the  purchaser  could  not  complain  that  there  was 
a  mutual  mistake  of  the  parties  as  to  the  sufficiency  of  the  title, 
if  it  could  be  discovered  from  the  public  records  that  the  para- 
mount title  was  outstanding  in  a  stranger;  for  example,  if  there 
was  a  conveyance  of  the  premises  by  the  vendor's  grantor  on 
record  prior  to  that  under  which  the  vendor  held.49 

"Sandford  v.  Travis,  7  Bosw.  (N.  Y.)  498;  Crosier  v.  Acer,  7  Paige 
(N.  Y.),  137.  In  a  case  in  which  it  appeared  that  the  situation  of  the 
parties  had  so  materially  changed  in  consequence  of  the  lapse  of  time,  that 
the  defendant  could  not  be  placed  in  statu  quo,  rescission  was  denied.  Mull- 
reed  v.  Clark,  119  Mich.  578,  78  N.  W.  Eep.  658. 

4T Doyle  v.  Hord,  67  Tex.  621,  4  S.  W.  Rep.  241;  Gass  v.  Sanger,  (Tex. 
Civ.  App.)  30  S.  W.  Rep.  502. 

^Bispham's  Eq.  (3d  ed.)  §  191;  Story  Eq.  Jur.  (13th  ed.)  p.  153;  Kerr 
F.  &.M.  407;  Trigg  v.  Reade,  5  Humph.  (Tenn.)  541,  42  Am.  Dec.  447;  Nor- 
man v.  Norman,  26  S.  C.  41,  11  S.  E.  Rep.  1096. 

43  The  case  of  Hitchcock  v.  Giddings,  4  Price,  135,  where  the  purchaser  took 
a  conveyance  from  a  remainderman  in  ignorance  that  the  remainder  had 
been  barred,  has  been  doubted  by  Sir  EDWABD  SUGDEN  on  this  ground.  The 
purchaser  might  have  ascertained  the  fact  by  a  search.  1  Sugd.  Vend.  (8th 
Am.  ed.)  376  (247).  It  is  not  easy  to  distinguish  such  a  case  from  any  other 
in  which  the  title  of  the  grantor  turns  out  to  have  been  entirely  worthless 
at  the  time  of  the  contract.  There  would,  however,  seem  to  be  no  room  for 
the  application  of  the  doctrine  of  mistake  in  a  case  in  which  the  vendor  was 
in  possession  and  prima  facie  owner  of  the  estate.  If  there  were,  a  covenant 


952  MARKETABLE    TITLE    TO    REAL    ESTATE. 

§  342.  Immaterial  mistakes.  The  mistake  as  to  a  matter  of 
fact  which  will  entitle  the  purchaser  to  relief  must  be  material. 
The  fact  must  have  been  essential,  and  not  merely  incidental,  to 
the  validity  of  the  contract,  and  the  mistake  must  have  been  such 
that  but  for  it  the  purchaser  would  not  have  accepted  the  title,  or 
the  vendor  have  parted  with  his  rights.50 

§  343.  Mistakes  as  to  quantity.  Mistakes  in  the  quantity  of 
land  conveyed  have  frequently  been,  made  the  ground  of  applica- 
tion by  the  purchaser  for  relief,  either  in  the  rescission  of  the 
entire  contract  or  in  the  ratable  abatement  of  the  purchase  money. 
Ordinarily  no  question  of  title  is  involved  when  the  grantee  merely 
complains  that  the  boundaries  set  forth  in  the  deed  do  not  contain 
the  number  of  acres  therein  purported  to  be  conveyed,  or  which 
the  purchaser,  under  the  contract,  is  entitled  to*  require."  If, 
however,  there  be  a  mutual  mistake  as  to  the  location  of  adjoining 
surveys,  by  which  the  land  is  encroached  upon,  the  title  to  the  full 
tract  bargained  for  does  not  pass,  and  the  purchaser  is  entitled 
to  relief,  though  the  conveyance  was  without  warranty.52 

of  warranty  would  be  a  useless  formality.  In  Campbell  v.  Carter,  14  111.  286, 
a  creditor  who  had  a  lien  on  the  land  of  his  debtor  took  the  land  in  satis- 
faction of  the  debt,  and  entered  satisfaction  of  his  lien  on  the  record,  in 
ignorance  of  a  junior  incumbrance  on  the  premises.  It  was  held  that  he 
was  not  entitled  to  relief  on  the  ground  of  mistake,  as  against  the  junior 
inrumbrancer,  nor  to  reinstate  the  lien  which  he  had  released. 

MKerr  F.  &  M.  408;  Bispham's  Eq.  (3d  ed.)  §  191 ;  1  Story  E<j.  Jur.  (18th 
ed.)  |  141;  Trigg  v.  Reade,  5  Humph.  (Tenn.)  529,  42  Am.  Dec.  447;  Grymes 
v.  Saunders,  93  U.  S.  55. 

"Thompson  v.  Jackson,  3  Rand.  (Va.)  504,  509,  15  Am.  Dec.  721.  See 
Zuenker  v.  Kuehn,  113  \Vi».  421,  88  X.  W.  Rep.  005. 

"Moore  v.  Hazelwood,  67  Tex.  624,  citing  Daughtry  v.  Knolle,  44  Tex. 
450;  O'Connell  v.  Duke,  29  Tex.  300,  94  Am.  Dec.  282;  Smith  v.  Fly,  24 
Tex.  345,  76  Am.  Dec.  109.  In  Brooks  v.  Riding,  46  Ind.  15,  it  appeared  that 
both  the  grantor  and  grantee  were  ignorant  of  the  fact  that  five  feet  of  the 
width  of  the  property  -sold  was  a  part  of  an  adjacent  street.  The  purchase 
money  was  abated  to  the  extent  of  the  value  of  the  five  fet't  lost.  See,  also, 
2  Wnrvelle  Vend.  840.  In  Butcher  v.  Peterson,  26  VV.  Va.  447.  the  covenantee 
was  evicted  from  a  portion  of  the  promises,  and  the  covenantor  claimed  that 
an  there  was  a  mutual  mistake  of  the  parties  as  to  the  title  to  that  part 
the  entire  contract  rau«t  be  rescinded1,  but  the  court  held  that  the  covenanted 
mijjht  keep  that  part  to  which  the  title  was  good,  and  have  an  abatement 
of  the  purchase  money  as  to  the  other  part. 


RESCISSION   IN   CASES   OF   FRAUD  AND   MISTAKE.  953 

§344.  MISTAKE  OF  LAW.  General  principles.  (2)  The  second 
class  of  cases  in  which  relief  on  the  ground  of  mistake  as  to  the 
title  has  been  sought  by  the  purchaser,  consists  of  those  in  which 
the  parties  were  correctly  informed  of  all  the  facts  material  to  the 
validity  of  the  title,  but  were  mistaken  in  their  application  of  the 
law  to  those  facts;  in  other  words,  cases  in  which  relief  is  asked 
on  the  ground  of  a  mistake  of  the  law.  This  is  a  much  vexed 
question.  It  is  a  legal  maxim  that  ignorance  of  the  law  excuses 
no  one,  and  again,  that  every  one  is  presumed  to  know  the  law. 
It  would  be  extremely  inconvenient  to  permit  a  party  to  set  up  a 
defense  of  ignorance  or  mistake  of  the  law,  because  such  a  rule 
would  encourage  the  parties  to  be  careless  in  ascertaining  their 
legal  rights  at  the  time  of  entering  upon  the  contract ;  and  further, 
because  it  would  be  a  great  inducement  to  fraud  and  perjury,  if 
an  unscrupulous  party  knew  that  he  might  at  any  time  escape  the 
obligation  of  his  contract  by  declaring  his  ignorance  of  the  law 
in  the  premises.  Consequently  it  has  been  decided  in  many  cases 
that  ignorance  or  mistake  of  the  law  affecting  the  validity  of  the 
title  to  real  estate  is  no  ground  for  relieving  the  purchaser  from 
his  bargain.53 

"1  Fonbl.  Eq.  ch.  2,  §  7.  1  Story  Eq.  Jur.  (13th  ed.)  §  137,  where  it  is 
said  that  whatever  exceptions  there  may  be  to  the  rule  are  not  only  few  in 
number,  but  will  be  found  to  have  something  peculiar  in  their  character,  and 
to  involve  other  elements  of  decision.  Shotwell  v.  Murray,  1  Johns.  Ch. 
(N".  Y. )  512,  one  of  Chancellor  KENT'S  decisions,  is  a  leading  case  on  this 
point.  A.  purchased  at  an  execution  sale  to  enforce  a  judgment  lien.  There 
was  a  prior  judgment  binding  the  land,  but  the  judgment  creditor  was  the 
same  in  both  cases,  and  of  that  fact  the  purchaser  was  informed.  After 
the  first  sale  an  execution  was  issued  under  the  senior  judgment,  and  against 
this  the  purchaser  sought  an  injunction,  claiming  that  he  was  mistaken  in 
believing  the  one  judgment  to  be  merged  in  the  other.  Relief  was  denied  on 
the  ground  that  the  mistake  was  merely  one  of  law.  So,  in  Norman  v. 
Xorman,  26  S.  C.  41,  11  S.  E.  Rep.  1096,  it  was  held  that  a  purchaser  at  a 
sale  under  a  judgment  bidding  in  the  mistaken  belief  that  the  lien  of  the 
judgment  was  superior  to  that  of  a  mortgage  lien  of  record,  could  not  be 
relieved  from  his  bid.  In  McMurray  v.  St.  Louis  Oil  Co.,  33  Mo.  377,  the 
purchaser  bought  at  a  sale  under  a  judgment  which  was  void  because  con- 
fessed by  the  president  of  a  corporation,  no  process  having  been  served  upon 
him.  The  purchaser  was  aware  of  the  facts,  but  ignorant  that  the  judgment 
was  void.  Relief  was  denied.  In  McAninch  v.  Laughlin,  13  Pa.  St.  370, 
the  purchaser  was  aware  of  all  the  facts,  but  mistaken  as  to  the  right  of  a 

120 


954  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

On  the  other  hand,  there  have  been  many  cases  in  which  parties 
have  been  permitted  to  avail  themselves  of  a  mistake  of  the  law 
relating  to  their  private  rights.  Most  of  these  cases,  so  far  as 
they  have  arisen  between  vendor  and  purchaser,  have  been  those  in. 
which  relief  was  sought  by  the  vendor  or  grantor  on  the  ground 

widow  to  claim  dower  in  the  land,  and  relief  on  the  ground  of  mistake  waa 
refused.  The  fact  that  a  purchaser  at  a  judicial  sale  was  ignorant  of  the 
want  of  jurisdiction  in  the  court  to  decree  the  sale,  will  not  excuse  him  from 
payment  of  the  purchase  money,  after  confirmation  of  the  sale.  Burns  v. 
Hamilton,  33  Ala.  210,  50  Am.  Dec.  570.  This  seems  a  great  hardship.  We 
have  seen,  however,  that  in  cases  in  which  the  proceeds  of  the  sale  went  to 
the  discharge  of  liens  or  charges  upon  the  land,  the  purchaser,  as  a  general 
rule,  is  subrogated  to  the  benefit  of  the  lien.  Ante,  §  204.  In  Smith  v. 
Winn,  (So.  Car.)  17  S.  E.  Rep.  717,  it  was  held  that  a  purchaser's  mistake 
in  supposing  that  a  contingent  remainderman  was  not  a  necessary  party 
to  a  suit  for  the  sale  of  an  estate,  did  not  entitle  him  to  relief.  Upon  the 
general  proposition  that  mistake  of  the  law,  whether  relating  to  title  or  to 
c  her  matters,  furnishes  no  ground  for  relief,  fee  Hunt  v.  Rousmaniere,  1  Pet. 
(U.  S.)  1  (this  case  has  been  cited  both  ways).  Lyon  v.  Richmond,  2  Johns. 
Ch.  (N.  Y.)  51;  Storrs  v.  Barker,  6  Johns.  Ch.  (N.  Y.)  169,  10  Am.  Dec. 
316,  per  KENT,  Ch.;  Wheaton  v.  Wheaton,  9  Cow.  (N.  Y.)  96;  Gwynn  v. 
Hamilton,  29  Ala.  233;  Good  v.  Herr,  7  W.  &  S.  (Pa.)  253,  42  Am.  Dec.  236. 
In  Bank  of  U.  S.  v.  Daniel,  12  Pet.  (U.  S.)  55,  it  waa  said:  "Vexed  as  the 
question  formerly  was,  and  delicate  as  it  now  is,  from  the  confusion  in  which 
numerous  and  conflicting  decisions  have  involved  it,  no  discussion  of  cases  can 
he  gone  into,  without  hazarding  the  introduction  of  exceptions  which  will  be 
likely  to  sap  the  direct  principle  we  intend  to  apply;  indeed,  the  remedial 
power  claimed  by  courts  of  chancery  to  relieve  against  mistakes  of  law,  is  a 
doctrine  rather  grounded  upon  exceptions,  than  upon  established  rules.  To 
this  course  of  adjudication  we  are  unwilling  to  yield.  That  mere  mistakes 
of  law  are  not  remedial  is  well  established,  as  was  declared  by  this  court  in 
Hunt  v.  Roustnaniere,  1  Pet.  (U.  S.)  15,  and  we  can  only  repeat  what  was 
there  said:  'That  whatever  exceptions  there  may  be  to  the  rule  will  be 
found  few  in  number,  and  to  have  something  peculiar  in  their  character,' 
and  to  involve  other  elements  of  decision."  Story  Eq.  Jur.  (13th  ed.)  §  137. 
For  a  contrary  and  recent  expression  of  opinion  on  this  point  by  the  Supreme 
Court  of  the  United  States,  see  Griswold  v.  Hazard,  141  U.  S.  260.  See  Kyle 
v.  Febley,  81  Wis.  67,  61  N.  W.  Rep.  257.  Judge  STORY  closes  his  review  of 
the  cases  upon  this  point  with  the  following  observations:  "  We  have  thus 
gone  over  the  principal  cases  supposed  to  contain  contradictions  of,  or  ex- 
ceptions to,  the  general  rule,  that  ignorance  of  the  law,  with  a  full  knowledge 
of  the  facts,  furnishes  no  ground  to  rescind  agreements  or  to  set  aside  solemn 
act«  of  the  parties.  Without  undertaking  to  as.-crt  that  there  are  none  ot 
these  cases  which  are  inconsistent  with  the  rule,  it  may  be  affirmed  that  the 
real  exceptions  to  it  are  very  fc\v,  iind  -i -net-ally  stand  upon  some  very 
urgent  pressure  of  circumstance-."  I  q.  Jur.  (13th  ed.)  f  137. 


RESCISSION   IN    CASES   OF   FKAUD  AXD   MISTAKE.  955 

that  he  had  parted  with  his  estate  or  interest  in  the  premises 
under  a  mistake  of  law  as  to  the  quantity  and  extent,  or  even  the 
existence,  of  that  interest.54  And  in  some  cases  the  purchaser  has 
been  relieved  from  the  obligation  of  his  contract  on:  the  ground  of 
a  mutual  mistake  of  the  law  in  respect  to  some  fact  upon  which 
the  validity  of  the  title  he  was  to  receive  depended.55  The  prin- 
ciple upon  which  relief  was  granted  was  the  same  in  either  case. 

54 1  Story  Eq.  Jur.  §  121.  Landsdowne  v.  Landsdowne,  Mos.  364;  2  Jac. 
&  W.  205;  Naylor  v.  Winch,  1  Sim.  &  Stu.  555;  Turner  v.  Turner,  2  Ch. 
Rep.  81.  Kornegay  v.  Everett,  99  1ST.  C.  30,  34,  5  S.  E.  Rep.  418.  This  rule 
was  applied  in  Lammot  v.  Bowly,  6  Harr.  &  J.  (Md.)  500,  where  one  parted 
with  property  upon  a  misconstruction  of  the  legal  effect  of  a  devise.  So, 
also,  in  Irick  v.  Fulton,  3  Grat.  (Va. )  193,  which  was  a  suit  by  the  vendor 
to  rescind,  she  having  conveyed  her  entire  interest  in  the  premises,  supposing 
it  to  be  an  undivided  moiety,  when,  in  fact,  she  owned  the  whole  as  sur- 
viving joint  tenant.  Zollman  v.  Moore,  21  Grat.  (Va.)  313,  324,  apparently 
conflicts  with  this  case,  but  is  distinguished  from  it  by  STAPLES,  J.,  who 
points  out  that,  in  the  first  case,  the  purchaser  bought  only  one-half  of  the 
estate  and  got  the  whole,  while  in  the  case  at  bar  the  purchaser  believed 
he  was  buying,  and  actually  paid  for,  the  whole.  This  fact,  of  course,  would 
make  a  difference  in  the  vendor's  measure  of  relief,  but  it  is  not  clearly  per- 
ceived how  any  change  in  the  principle  upon  which  relief  should  be  afforded, 
is  thereby  produced.  In  the  latter  case  the  vendor  would  not  be  permitted 
to  rescind,  without  refunding  the  purchase  money  for  that  part  of  the  estate 
which  the  purchaser  loses. 

55 Fry  Sp.  Perf.  (3d  Am.  ed.)  §  768,  15  Am.  &  Eng.  Encyc.  of  L.  634.  State 
v.  Paup,  13  Ark.  129,  56  Am.  Dec.  303.  The  leading  English  case  upon  the 
point  is  Bingham.  v.  Bingham,  1  Ves.  Sen.  126;  Betts'  Supp.  79.  The 
plaintiff  held  under  a  devise  from  A.,  and  having  been  persuaded  by  the 
defendant  and  a  scrivener  that  A.  had  no  power  to  devise,  and  that  the  title 
was  in  defendant,  purchased  his  alleged  interest  for  eighty  pounds.  After- 
wards he  brought  his  bill  in  equity  to  rescind  the  contract,  alleging  that  all 
parties  were  mistaken  in  their  belief  that  the  devise  was  invalid.  The  con- 
tract was  rescinded  and  the  restoration  of  the  purchase  money  decreed. 
Mr.  Pomeroy  (2  Eq.  Jur.  §  849)  concedes  that  relief  should  be  afforded  in 
such  a  case,  but  treats  the  mistake  as  one  of  fact.  He  formulates  this  rule: 
"  Wherever  a  person  is  ignorant  or  mistaken  with  respect  to  his  own  ante- 
cedent and  existing  private  legal  rights,  interests,  estates,  duties,  liabilities, 
or  other  relations,  either  of  property,  or  of  contract,  or  dT  personal  status, 
and  enters  into  some  transaction  the  legal  scope  and  operation  of  which  he 
correctly  apprehends  and  understands,  for  the  purpose  of  affecting  such  as- 
sumed rights,  interests,  or  relations,  or  of  carrying  out  such  assumed  duties 
or  liabilities,  equity  will  grant  its  relief,  defensive  or  affirmative,  healing  the 
mistake  as  analogous  to,  if  not  identical  with,  a  mistake  of  fact."  All  of 
this  seems  capable  of  reduction  to  the  simple  observation  by  Judge  STOBY 
(1  Eq.  Jur.  [13th  ed.]  §  122),  that  where  the  party  acts  upon  the  misappre- 


956  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

§  345.   Distinction  between  ignorance  of  law  and  mistakes  of 
law.     In  some  cases  a  distinction  has  been  drawn  between  mere 

hension  that  he  has  no  title  at  all  in  the  property,  it  seems  to  involve  in 
some  measure  a  mistake  of  fact,  that  is,  of  the  fact  of  ownership  arising 
from  a  mistake  of  law."  But  the  learned  judge  does  not  commit  himself 
to  this  view,  for  he  asks  in  a  note,  "  Is  ignorance  of  the  title  when  all  the 
facts  on  which  it  legally  depends  are  known,  ignorance  of  a  fact  or  of  law?  ** 
There  is  some  plausibility  in  the  idea  that  ignorance  of  title  resulting  from 
ignorance  of  a  particular  law  on  which  the  title  depends,  is  a  mistake  of 
fact;  in  one  sense  it  undoubtedly  is,  but  that  is  in  the  same  sense  in  which 
it  might  be  said  that  ignorance  of  a  particular  law  is  ignorance  of  the  fact 
that  such  a  law  exists,  and  that,  of  course,  is  a  palpable  sophism  when 
applied  to  the  question  under  consideration.  If  a  stranger  comes  to  our 
shores,  parts  with  his  inheritance  or  incurs  a  liability  upon  the  assumption 
that  the  law  of  primogeniture  exists  among  us,  can  any  one  doubt  that  this 
is  a  mistake  of  law  pure  and  simple?  Judge  STORY  says:  "A  party  can 
hardly  be  said  to  intend  to  part  with  a  right  or  title  of  whose  existence  he 
is  wholly  ignorant"  (Eq.  Jur.  [13th  ed.]  p.  131),  and  if  to  that  should  be 
added  "  whether  such  ignorance  arise  from  mistake  of  a  particular  fact  or 
from  mistake  of  a  particular  law,"  we  would  have  what  is  believed  to  be  a 
trvie  expression  of  the  rule  to  be  deduced  from  many  decisions.  See  Prof. 
Bigelow's  note,  Story's  Eq.  Jur.  (13th  ed.)  p.  112.  In  Lowndes  v.  Chisholm, 
2  McCord  Ch.  (S.  C.)  455,  10  Am.  Dec.  667,  a  mortgagee  obtained  a  judg- 
ment against  the  mortgagor  and  sold  the  premises  under  a  fi.  fa.  without 
foreclosing  the  mortgage.  The  purchaser  was  aware  of  the  facts,  but  was 
mistaken  as  to  the  law,  by  which  he  acquired  only  the  mortgagor's  equity 
of  redemption  instead  of  the  fee.  It  was  held  that  he  was  entitled  to  rescind. 
In  Champlin  v.  Laytin,  6  Paige  Ch.  (N".  Y.)  197,  31  Am.  Dec.  382,  the 
grantor  conveyed  a  lot  embraced  within  the  bounds  of  a  public  street  which 
had  been  laid  out  on  a  map  but  not  opened.  The  parties  were  aware  of  the 
facts,  but  mistaken  as  to  the  legal  right  of  the  owner  of  the  land1  so  convex  rd. 
to  receive  compensation  for  it  when  the  street  should  be  opened.  There  was. 
in  fact  no  such  right  of  compensation,  and  the  contract  was  rescinded  on 
the  ground  of  mistake  of  law.  In  Lawrence  v.  Beuubien,  2  Bailey  L.  (S.  C.) 
623,  23  Am.  Dec.  155,  real  property  had  been  devised  to  an  alien,  and  the 
devisee,  apprehensive  that  the  devise  was  void  and  that  the  property  would 
pass  to  the  heir,  executed  a  bond  to  the  latter  in  consideration  of  a  release 
of  all  his  rights  in  the  premises.  The  devise,  however,  was  valid,  and  the 
devisee  was  permitted  to  show  that  he  was  mistaken  as  to  the  law  in  that 
respect,  and  relieved  from  hh  liability  on  the  bond.  On  the  general  propo- 
sition that  equity  will  relieve  against  a  plain  mistake  of  the  law,  see  1  Bearb 
Mod.  Eq.  Jur.  §  35;  Kerr  F.  &  XI.  (Bump's  ed.)  398;  2  Warvelle  Vend.  756; 
Fry  on  Sp.  Pcrf.  (3d  Am.  ed.)  768;  Bispham's  Eq.  (3d-  ed.)  §  187;  Prof. 
Bigelow's  note,  Story's  Eq.  Jur.  (13th  ed.)  p.  112,  and  the  same  writer's. 
monograph  "  Mistake  of  Law  an  a  Ground1  of  Equitable  Relief,"  1  L.  Quart, 
Rev.  298.  Drew  v.  Clarke,  Cook  (Tenn.),  374;  Fitzgerald  v.  Peck,  4  Litt. 
(Ky.)  125;  Benson  v.  Markoe,  37  Minn.  30,  33  N.  W.  Rep.  38.  In  Griswold 


BESCISSION   IN   CASES   OF   FEAUD  AND   MISTAKE.  957 

ignorance  of  the  law  and  mistakes  of  the  law,  relief  being  refused 
in  the  former  case  and  granted  in  the  latter.56  One  of  the  prin- 

v.  Hazard,  141  U.  S.  260,  284,  a  surety  on  a  bail  bond  in  a  civil  suit  was 
permitted  to  show  that  it  was  understood  by  him  at  the  time  the  bond  was 
given  that  he  was  to  be  liable  only  in  case  the  defendant  did  not  appear 
before  the  court  at  the  time  specified  in  the  bond,  and  that  he  was  not  to  be 
a  surety  for  the  payment  of  any  judgment  or  decree  for  money  which  might 
be  pronounced  against  the  defendant,  though  the  undertaking  of  the  surety 
was  "  to  abide  and  perform  the  decrees  and  orders  of  the  court."  The 
penalty  of  the  bond  was  $53,000,  and  the  surety,  a  stranger  to  the  defendant, 
had  executed  it  at  the  request  of  a  mutual  friend,  and  as  a  matter  of 
courtesy  and  good  will.  This  was  a  case  of  much  difficulty.  BKOWN,  J., 
rendered  a  dissenting  opinion. 

ce  Lawrence  v.  Beaubien,  2  Bailey  L.  (S.  C.)  623,  23  Am.  Dec.  155;  Lowndes 
v.  Chisholm,  2  McCord  Ch.  (S.  C.)  455,  16  Am.  Dec.  667;  reaffirmed  in  Brock 
v.  O'Dell,  (S.  C.)  21  S.  E.  Rep.  976.  The  concurring  opinion  of  PAIGE,  Sen- 
ator, in  Champlin  v.  Laytin,  18  Wend.  (N.  Y.)  422,  31  Am.  Dec.  382,  con- 
tains  an  instructive  review  of  the  authorities  upon  this  point,  and  for  that 
reason  is  here  quoted  at  considerable  length :  "  I  am  prepared  to  assent  to 
the  proposition  of  the  vice-chancellor,  that  a  contract  entered  into  under  an 
actual  mistake  of  the  law  on  the  part  of  both  contracting  parties,  by  which 
the  object  and  end  of  their  contract,  according  to  its  intent  and  meaning, 
cannot  be  accomplished,  is  as  liable  to  be  set  aside  as  a  contract  founded  in 
mistake  of  matters  of  fact.  The  proper  distinction,  in  my  judgment,  is 
taken  in  the  case  of  Lawrence  v.  Beaubien,  2  Bailey  Eq.  (S.  C.)  623,  23  Am. 
Dec.  155;  and  Lowndes  v.  Chisholm,  2  McCord  Eq.  (S.  C.)  455,  16  Am.  Dec. 
667,  and  Hopkins  v.  Mazyek,  1  Hill  Eq.  (S.  C.)  250,  between  a  mistake  of 
the  law  and  a  mere  ignorance  of  the  law.  The  question,  it  seems  to  me,  was 
in  these  cases  correctly  decided.  Several  of  the  cases  from  the  English  re- 
ports cited  on  the  argument  were  cases  where  relief  was  granted  against 
mere  mistake  of  law.  Such  were  the  cases  of  Willan  v.  Willan,  16  Ves.  72; 
Bingham  v.  Bingham,  1  Ves.  126;  Pusey  v.  Desbourne,  3  P.  Wms.  320; 
Landsdowne  v.  Landsdowne,  Mos.  364.  The  cases  of  Onions  v.  Tyrer,  1  P. 
Wms.  345,  and  Perrot  v.  Perrot,  14  East,  439,  also  recognize  the  principle 
that  relief  may  be  afforded  in  cases  of  mere  mistakes  of  law.  The  case  of 
Naylor  v.  Wench,  1  Sim.  &  Stu.  561,  is  to  the  same  effect.  So  is  the  case 
of  Fitzgerald  v.  Peck,  4  Litt.  (Ky.)  127.  I  cannot  see  any  good  sense  in 
the  distinction'  of  granting  relief  against  mistakes  of  fact  and  refusing  it 
in  cases  of  acknowledged  mistakes  of  law.  Both,  in  my  judgment,  ought  to 
be  placed  on  the  same  footing.  If  the  principles  of  justice  require  relief  in 
the  one  case,  they  equally  do  in  the  other.  The  vice-chancellor,  Sir  JOHN 
LEACH,  in  Naylor  v.  Wench,  1  Sim'.  &  Stu.  555,  says:  'If  a  party  acting 
in  ignorance  of  a  plain  and  settled  principle  of  law  is  induced  to  give  up  a 
portion  of  his  indisputable  property  to  another  under  the  name  of  a  com- 
promise, a  court  of  equity  will  relieve  him  from  the  effect  of  his  mistake.' 
Although  the  case  of  Hunt  v.  Rousmaniere,  1  Pet.  (U.  S.)  13,  ultimately 
turned  on  another  question,  yet  the  opinion  of  Chief  Judge  MARSHALL  in 


958  MARKETABLE    TITLE    TO    REAL    ESTATE. 

eipal  reasons  why  a  party  will  not  be  heard  to  allege  his  ignorance 
of  the  law  in  support  of  his  demand  or  defense,  is  that  there  is  in 
most  cases  no  way  of  determining  the  truth  or  falsehood  of  the 
allegation.  But  if  it  appear  that  the  law  applicable  to  the  case 

that  case,  as  reported  in  S  Wheat.  (U.  S.)  205,  clearly  shows  which  way 
was  the  inclination  of  his  mind.  He  says,  speaking  of  the  case  of  Lands- 
do  win-  v.  Landsdowne,  Mos.  364,  '  that,  as  a  case  in  which  relief  has  been 
granted  on  a  mistake  of  law,  cannot  be  entirely  disregarded."  And  he  further 
says:  'Although  we  do  not  find  the  naked  principle  that  relief  may  be 
granted  on  account  of  ignorance  of  law  asserted  in  the  books,  we  find  no  case 
in  which  it  has  been  decided  that  a  plain  acknowledged  mistake  of  law  is 
beyond  the  reach  of  equity.'  And  again,  page  216.  he  says:  'We  are  unwill- 
ing, where  the  effect  of  the  instrument  is  acknowledged  to  have  been  entirely 
misunderstood  by  both  parties,  to  say  a  court  of  equity  is  incapable  of 
affording  relief.'  And  WASHINGTON,  J.,  in  the  same  case  (1  Pet.  15),  in 
the  conclusion  of  his  opinion,  says:  'It  is  not  the  intention  of  the  court 
to  lay  down  that  there  may  not  be  cases  in  which  a  court  of  equity  will 
relieve  against  a  plain  mistake  arising  from  ignorance  of  law.'  JOHNSON,  J., 
in  Lawrence  v.  Beaubien.  2  Bailey  Eq.  (S.  C.)  (523,  23  Am.  Dec.  155,  saysi 
'All  the  difficulty  and  confusion  which  have  grown  out  of  the  application  of 
the  maxim,  iynorantia  juris  ntmincm  excusat,  appears  to  me  to  have 
originated  in  confounding  the  terms  iynorance  and  mistake.  The  former  is 
passive  and  does  not  presume  to  reason,  but  the  latter  presumes  to  know 
when  it  does  not,  and  supplies  palpable  evidence  of  its  existence.'  He  fur- 
ther says,  in  Hopkins  v.  Mayzek,  1  Hill  Eq.  (S.  C.)  250,  that  a  mere 
ignorance  of  the  law  is  not  susceptible  of  proof,  and,  therefore,  cannot  be 
relieved;  but  that  a  mistake  of  law  may  be  proven,  and  when  proved  relief 
may  be  afforded.  If  relief  was  to  be  granted  upon  every  allegation  of  a  mere 
ignorance  of  law,  great  embarrassment  would  arise  in  discriminating  between 
the  cases  of  actual  ignorance  and  those  of  feigned  ignorance.  So,  where  the 
ignorance  or  mistake  of  the  law  is  only  in  one  of  the  contracting  parties,  and 
the  other  party  has  not  taken  any  advantage  of  the  circumstances  in  making 
the  contract,  it  would  not  be  proper  to  grant  relief  against  such  ignorance  or 
mistake.  But  where  a  contract  is  entered  into  under  an  actual  and  reciprocal 
mistake  of  law  in  both  the  contracting  parties,  by  which  the  manifest  inten- 
tion of  the  parties  cannot  be  accomplished,  and  which  ex  rn/i/o  <  t  bone  ought 
not  to  be  binding,  and  where  such  mistake  is  either  acknowledged  or  un- 
doubted evidence  of  it  is  produced,  I  cannot  see  any  good  reason  why  relief 
should  not  be  granted  in  oquity  to  the  same  extent  as  is  done  in  cases  of 
mistakes  in  matter  of  fact.  The  principles  of  natural  justice  require  that 
the  like  relief  should  be  granted  in  both  cases.  I  would  qualify  the  rule,  how- 
ever, as  was  done  by  .JOHNSON,  .1.,  in  Lawrence  v.  Bcauhicn,  and  deny  relief 
if  it  appeared  the  contract  was  the  compromise  of  doubtful  right,  or  was 
entered  into  an  a  speculating  bargain.  By  adopting  the  rule  with  these 
qualifications,  in  my  judgment  no  mischievous  consequences  would  follow, 
but,  on  the  contrary,  the  interests  of  justice  would  be  advanced." 


RESCISSION   IN    CASES   OF   FRAUD  AND  MISTAKE.  959 

was  adverted  to  by  the  parties  and  an  erroneous  conclusion 
reached,  there  is  little  or  no  ground  to  impute  bad  faith  to  either 
of  them  in  afterwards  averring  that  he  was  mistaken  as  to  the  law 
when  he  entered  into  the  contract.57  These  observations  would 
apply,  of  course,  to  all  cases  where  the  parties  had  been  errone- 
ously or  falsely  advised  as  to  the  law  by  third  persons.  If  a  man, 
upon  erroneous  advice  as  to  the  law  applicable  to  known  facts,  or 
upon  the  erroneous  conclusion  of  himself  and  another  as  to  what 
that  law  is,  part  with  property  under  the  impression  or  belief 
that  the  title  thereto  is  not  in  himself,  equity  will  relieve  him 
from  the  obligation  or  loss  incurred  by  that  act.  This  being  so, 
no  reason  is  perceived  why  one  who  purchases  property  upon  a 
mistaken  representation  or  conclusion  as  to  what  is  the  law  appli- 
cable to  some  fact  or  facts  upon  which  the  validity  of  the  title 
depends,  should  not  be  afforded  a  like  relief.58  If  a  clear,  bona 
fide,  mistake  of  the  law  be  established  by  evidence  other  than  the 
uncorroborated  testimony  of  the  purchaser  himself,  there  would 
seem  to  be  no  reasons  of  public  policy,  convenience  or  expedience 
upon  which  relief  should  be  denied  to  him,  unless  it  should  be 
intended  to  punish  him  for  his  mistake  of  the  law. 

The  maxim  that  ignorance  of  the  law  excuses  no  one  applies 
only  to  the  general  public  laws.  It  has  no  application  to  private 
or  special  acts  of  the  legislature,  nor  to  foreign  laws,  nor  to  the 
laws  of  the  other  States  of  the  Union.59 

57  As  an  illustration,  let  at  foe  supposed  that  the  deed  of  a  married  woman, 
not  executed  as  the  law  requires,  is  void,  and  I,  having  the  deed  before  my 
eyes,  accept  a  title  derived  through  it  without  having  the  invalidity  of  the 
title  occur  to  my  mind.     Here  there  is  a  plain  case  of  ignorance  of  the  law. ' 
But  it  is  obviously  not  the  same  case  as  where  the  invalidity  of  the  title 
is  suggested  to  me,  and  I  declare  my  belief,  or  should  be  advised,  that  the 
law  does  not  invalidate  the  deed,  and  that  the  title  is  sufficient.     In  the  first 
case  I  am  ignorant  of  any  law  affecting  the  title;  in  the  second  case  I  know 
the   letter   of    the    law,    but    am   mistaken    in    its    application    to   my    case. 
Whether  the  legal  consequences  are  to  be  the  same  in  either  case  is  another 
question.     See  Prof.  Bigelow's  note,  Story's  Eq.  Jur.   (13th  ed.)    113. 

58  Howard  v.  Sebastian,  143  Ky.  237,  136  S.  W.  226. 

59 1  Story  Eq.  Jur.  140;  King  v.  Doolittle,  1  Head  (Tenn.),  77;  Moreland 
v.  Atchison,  19  Tex.  303,  311;  Havens  v.  Foster,  9  Pick.  (Mass.)  112,  130; 
19  Am.  Dec.  353;  Norton  v.  Marten,  3  Shep.  (Me.)  45. 


960  MARKETABLE    TITLE    TO    REAL    ESTATE. 

§  346.  Erroneous  construction  of  devise  or  grant.  If  the 
ignorance  of  the  law  applicable  to  some  fact  upon  which  the  title 
depends,  consist  in  the  erroneous  construction  of  a  devise  or  grant 
through  which  title  is  claimed,  it  seems  according  to  several  Eng- 
lish decisions,  that  the  purchaser  will  be  relieved.60  It  has  been 
held  that  the  maxim  "Ignorantia  juris  hand  excusat "  has  no 
application  when  the  word  "j-us'J  denotes  private  rights,61  that  is, 
that  a  mistake  as  to  the  general  law  cannot  be  remedied  in  equity, 
but  that  a  mistake  as  to  individual  rights  may  be  a  ground  of 
relief.62  It  has  also  been  said  that  the  rule  "  ignorance  of  the  law 
is  no  excuse,"  applies  only  in  criminal  cases,63  but  that  dictum  is 
not  regarded  as  authority. 

§  347.  Where  the  true  construction  of  the  law  is  doubtful. 
"  Ignorance  of  the  law,"  as  used  in  the  foregoing  connection, 
means  ignorance  of  the  law  as  settled  by  the  decisions  of  the 
courts,  though  such  decisions  be  themselves  erroneous,  and  be 
afterwards  reversed.  A  subsequent  decision  of  a  higher  court  in 
a  different  case,  giving  a  different  exposition  of  a  point  of  law 
from  the  one  declared  and  known  when  a  settlement  between 
parties  takes  place,  cannot  have  a  retrospective  effect,  and  over- 
turn such  settlement.64 

"*  Beauchamp  v.  Winn.  L.  R.,  6  H.  L.  234,  Jx>rd  CIIKLMSFORD  saying  that 
ignorance  of  the  law  arising  upon  the  doubtful  construction  of  a  grant  is 
very  different  from  the  ignorance  of  a  well-known  rule  of  law.  and  that  there 
are  many  cases  to  be  found  in  which  equity,  upon  a  mere  mistake  of  the  law, 
without  the  admixture  of  other  circumstances,  has  given  relief  to  a  party  who 
has  dealt  with  his  property  under  the  influence  of  such  mistake.  But  see 
the  apparently  conflicting  language  of  the  same  judge  in  Midland  Great  West., 
ete.,  R.  Co.  v.  Johnson,  6  H.  L.  C.  810,  811,  and  Story's  Eq.  Jur.  (13th  ed.) 
f  127. 

*  Per  Lord  WESTBUBY  in  Cooper  v.  Phibbs,  2  H.  L.  149,  17  Ir.  Ch.  73.  This 
interpretation  of  the  maxim  was  criticized  in  Hunt  v.  Rousmaniere,  1  Pet. 
(U.  R.)  15,  and  Winlermute  v.  Snyder,  3  X.  J.  Eq.  41)9.  It  is  also  obscure, 
when  we  remember  that  private  rights  are  governed  by  the  general  law. 

"Bispham's  Kq.  (3d  ed.)  §  187. 

"Per  Lord  KINO  in  Landsdowne  v.  Landsdowne,  Mos.  364;  criticized,  1 
Story  Eq.  Jur.  (13th  ed.)  fi  116. 

•*  language  of  Chancellor  KKNT  in  Lyon  v.  Richmond,  2  Johns.  Ch.  (N.  Y.) 
59.  Hardigrce  v.  Mitchum,  f.l  Ala.  151.  In  this  case  the  vendor  had  agreed 
to  pay  off  a  judgment  lien  on  the  premises  at  a  time  when  the  lien  was  be- 
lieved, by  the  parties,  to  be  valid.  Afterwards  the  law  creating  the  lien  was 


RESCISSION   IN    CASES   OF   FRAUD  AND   MISTAKE.  961 

§  348.  Misrepresentation  of  law  by  vendor.  It  is  a  general 
rule  that  if  a  party  is  induced  to  execute  a  contract  bj  representa- 
tions which  are  untrue,  but  innocently  made,  he  will  be  entitled  to 
a  rescission.63  Such  a  state  of  facts  frequently  appears  in  suits 
for  rescission  by  grantees  alleging  false  and  fraudulent  repre- 
sentations in  respect  to  the  title.  If  the  vendor  knew  the  repre- 
sentation was  false,  the  purchaser  would  be  entitled  to  rescind  on 
the  ground  of  fraud.  If  the  representation  was  innocently  made, 
then  the  purchaser  would  be  relieved  on  the  ground  of  mistake.66 
The  question  whether  the  mistake  in  such  cases  was  one  of  law  or 
of  fact  seems  not  to  have  been  considered  important,  it  being 
apparently  conceded  that'  the  falsity  of  the  representation  alone 
entitled  the  purchaser  to  relief.  And,  generally,  it  may  be  said 
that  if,  in  a  case  of  mistake  or  ignorance  of  law  affecting  the  title 
on  the  part  of  the  purchaser,  there  are  circumstances  indicating- 
fraud,  imposition,  deceit  or  unconscionable  advantage  on  the  part 
of  the  vendor,  a  court  of  equity  will  gladly  lay  hold  of  them  as 
an  escape  from  the  arbitrary  maxim,  ignorantia,  legis  neminem 
exciisat.61 

The  mistake,  to  be  a  ground  for  relief,  must,  of  course,  be  the 
mistake  of  both  parties.  The  importance  of  this  rule  is  chiefly 

decided  to  be  unconstitutional,  and  the  vendor  refused  to  indemnify  the  vendee 
who  had  bought  the  premises  at  a  sale  under  the  judgment  to  protect  himself. 
The  court  said :  "  No  diligence  on  the  part  of  the  purchaser  could  have  im- 
parted to  him  any  knowledge  of  the  legal  invalidity  of  the  supposed  incum- 
brance.  No  notice  to  him  of  that  invalidity,  or  that  it  was  so  regarded  by 
the  purchaser,  was  given.  On  the  contrary,  the  vendor  shared  in  his  ignorance 
or  mistake  of  the  law,  and  had  promised  performance  of  the  duty  primary 
upon  him  in  legal  contemplation  —  the  removal  of  the  incumbrance.  It  would 
be  a  reproach  to  the  law  if  the  vendor  could  resist  the  claim  of  the  purchaser." 

65  See  cases  cited,  ante,  §  105.  Bigelow  on  Fraud,  4SS;  Lanier  v.  Hill,  25 
Ala.  554,  where  the  vendor  and  administrator  c.  t.  a.  falsely  but  innocently 
represented  that  he  had  authority  under  the  will  to  sell.  In  Drew  v.  Clarke, 
Cooke  (Tenn.),  374,  5  Am.  Dec.  698,  it  was  laid  down  that  if  a  man  is  clearly 
under  a  mistake  in  point  of  law,  which  mistake  is  produced  by  the  repre- 
sentation of  the  other  party,  he  can  be  relieved  as  well  as  if  the  mistake  were 
as  to  a  matter  of  fact.  See,  also,  Moreland  v.  Atchison,  19  Tex.  303;  2  War- 
velle  Vend.  812. 

"Fane  v.  Fane,  L.  E,  20  Eq.  Gas.  698. 

87  1  Beach  Mod.  Eq.  Jur.  §  36;  1  Story  Eq.  Jur.  (13th  ed.)  §  133;  Bispham 
Eq.  trine.   (3d  ed.)    §  185. 
121 


962  MARKETABLE    TITLE    TO    REAL    ESTATE. 

felt  in  those  cases  in  which  the  purchaser  seeks  to  have  the  con- 
tract reformed.  Its  importance,  where  the  rescission  of  an  exe- 
cuted contract  is  sought,  is  lessened  by  the  consideration  that  if 
the  vendor,  knowing  of  matters  of  law  or  fact  rendering  the  title 
worthless,  allowed  the  vendee  to  proceed  without  communicating 
such  knowledge,  he  would,  as  a  general  rule,  be  deemed  guilty  of 
fraud,  and  upon  that  ground  alone  the  vendee  would  be  relieved. 


INDEX 


[REFERENCES  ARE  TO  PAGES] 


Abatement  of  purchase  money.  (See 
PURCHASE  MONEY,  COMPENSATION 
FOB  DEJECTS,  SPECIFIC  PERFORM- 
ANCE. ) 

Absence. 

title    as    dependent    on    long-con- 
tinued, of  party  in  interest,  814 

Abstract  of  title. 

may   be   supplemented  by  written 

evidences  of  title,  26 
what  it  should  show,  163 
root  of  title,  165 
duty  to  furnish,  167 
property  in,  170 
time  in  which,  should  be  furnished, 

169 
time  in  which  to  examine  title  and 

verify,   171 
summary    of    principal    sources    of 

objections   to  title,   173 
objections    apparent   on    face   of 

title  papers,   176 
objections     apparent     from     the 

public  records,  182 
objections   arising  from   matters 
in  pais,  180 

Acceptance  of  grant. 

purchaser  is  not  estopped  by,  600 

Acceptance  of  title.  ( See  WAIVER  OF 
OBJECTIONS.) 

Accident.      (See   MISTAKE.) 

Acknowledgment. of  deeds. 

acknowledgment,  necessity  for,  58 

defective     certificate     makes     title 

doubtful,  59,  834 
examples,  835 

statutory  form  should  be  literally 
followed,  59 

venue  of  certificate,  necessity  for, 
60 

name    of    certifying   officer    should 
appear,   60 

purchaser  cannot  take  acknowledg- 
ment, 61 

interested    party   cannot   take   ac- 
knowledgment, 61 

official  designation  of  certifying  of- 
ficer, 61 


Acknowledgment  of  deeds  —  Cont'd. 
certificate    by    de   facto   officer    is 

valid,  62 
name  of  grantor  should  appear  in 

certificate,   63 
acknowledgment    by    officers    and 

fiduciaries,   63,  64 
acknowledgment    by    attorney    in 

fact,  64 
annexation   of  deed  and  reference 

thereto,  64 

jurisdiction  of  certifying  officer,  65 
personal  acquaintance  with  grantor, 

65 

fact  of  acknowledgment  must  ap- 
pear, 66 
privy    examination    of    wife   must 

appear,  67 
must  recite  explanation  of  contents 

of  deed,  68 
must    recite    declaration    that    act 

was  voluntary,  69 
wish  not  to  retract,  70 
certificate     should     contain     recog- 
nition of  seal,  71 
certificate  should   be  dated,   71 
certificate  must  be  signed,  71 
abbreviation  "  J.  P.,"  "  N.  P.,"  etc., 

after  signature,   72 
certificate  should  be  under  officer's 

seal,  72 

surplusage   will   not   avoid   certifi- 
cate, 73 
clerical  mistakes,  when  immaterial, 

73 
certificate  cannot  be  amended  after 

delivery,  75 
acknowledgment  cannot  be  proved 

by  parol,  75 
certificate   cannot   be   amended    or 

cured  by  evidence  aliunde,  75 
title  as  dependent  on  sufficiency  of, 

834,  n. 

Acreage. 

warranty  does  not  extend  to,   363 

Action. 

against  vendor  for  breach  of  con- 
tract, 11,  18 
for  deceit,   3,   247 
on  covenants  for  title,  270 
to  recover  back  purchase  money, 
632,  639 


[963] 


904 


INDEX 


[REFERENCES   ABE   TO   PAGES] 


Action  —  Continued. 

to   compel  specific   performance, 

519 

to  restind  contract,  749 
circuity   of,    avoided    by    estoppel, 

562,  582 
and  by  recoupment,  493 

Acts  of  ownership.     (See  WAIVER  OF 

OBJECTIONS.) 

not  necessarily  a  waiver  of  objec- 
tion to  title,  197 

Acts  of  sovereignty. 

vendor  cannot  be  required  to  cov- 
enant against,  157 

constitute  no  breach  of  warranty, 
383 

Actual  eviction.     (See  EVICTION.) 

Actual  seisin. 

though  wrongful,  supports  cove- 
nant of  seisin  in  certain  States, 
272 

dissent  from  this  doctrine,  273 

Administrators.      (See    EXECUTORS.) 

Adverse  claimant.  (See  EVICTION, 
WARRANTY.) 

entry  of,  constitutes  breach  of 
warranty,  when,  388 

surrender  of  possession  to,  394 

hostile  assertion  of  title  by,  neces- 
sary to  constructive  eviction, 
399,  405 

existence  of,  makes  title  unmarket- 
able, 799 

Adverse  possession. 

constitutes   breach  of  covenant  of 

warranty,  390 

title  by,  marketable,  805.  (See 
DOUBTFUL  TITLE.) 

not  marketable  where  prem- 
ises' hold  adversely,  799 

Adverse    suit.      (See   COVENANT    OF 

WARRANTY.) 
covenantor  muat  be  notified  of,  400 

Affidavits. 

in  Mipport  of  abstract,  25,  n,  795,  n. 
admitted  to  record,  164 

Affirmance. 

of  contract,  remedies  in,  3 

by  action  at  law,  11 

by  proceedings  in  equity,  519 


After-acquired  title.    ( See  ESTOPPEL  . ) 
enures  to  benefit  of  grantee,  561 
grantee  may  be  required  to  take, 
581 

Agent. 

may  insert  in  agreement  provisions 

as  to  the  title,  23 
usual   covenants   may  be   required 

from,  159 

fraud  of,  binds  principal,  250 
but  principal  not  liable  to  action 

of  damages,  250 
agent     is     personally    liable     in 

damages,  251 

and  criminally,  in  some  juris- 
dictions, 251 

Agreements  respecting  the  title, 
implied  agreements,  20 

good  title  implied  in  every  sale, 
20 

effect  of  contract  silent  as  to 
quantity  of  interest,  20 

contract  to  sell  means  that  fee 
simple  is  sold,  21 

effect  of  unrestricted  agreement 
to  Bell,  21 

implication  of  good  title  rebutted 
by  notice  of  defect.  _'_ 

no  implication   of   good   title   in 

ministerial  sales,  23 
except   in  salt-  by  assignee  in 
bankruptcy.   13S 

sale  of  lease  implies  good  title 
in  landlord.  '2-2 

agreement  to  quitclaim  will  not 
embrace  after-acquired  inter- 
est, 22 

no  implication  of  title  in  assign- 
ment of  contract  to  sell.  •2'.'- 

nor  in  assignment  of  land  office 

certificate.   -J:i 
express  agreements,  24 

written  contract  usually  entered 
into.  :M 

tins  often  specifics  kind  of  4itlc 
to  be  conveyed.  24 

contract  for  title  deducible  of 
record.  2"> 

stipulation  that  abstract  shall 
show  title,  25 

agreement  to  furnish  satisfac- 
tory abstract,  "2~t 

agreement     tint     title    shall    be 
•or\."   T'.M 

terms  and  condition  of  sale.  24 

verbal  declarations  of  auctioneer, 
27 

agreement   to  make   "  good  and 
sufficient  deed,"  34 


INDEX 


965 


[REFERENCES    ABE    TO    PAGES] 


Agreements    respecting   the    title  — 
Continued. 

means  that  deed  must  convey 

indefeasible  estate,  36 
agreement    to    convey    by    quit . 

claim,  39 
but  such   agreement  must   be 

clear  and  unambiguous,  39 
obliges   purchaser  to  take  the 

title  such  as  it  is,  40 
agreement    to    take    defective 
title  no  waiver  of  right  to 
covenants,  40 
agreement    to    sell   "  right,   title 

and  interest,"  40 
obliges  purchaser  to  take  the 

title  such  as  it  is,  40 
but    vendor   must   have    some 

kind  of  title  or  right,  40 
agreement  to  purchase  "subject 

to"  liens,  40 
adds   amount    of    lien   to   the 

purchase  price,  41 
but   does  not   make   purchaser 
personally    liable    to    lienor, 
41 

agreement  that  lien  shall  be  de- 
ducted from  purchase  money, 
41 

English   rules   respecting   the    con- 
tract, 28 

provisions   dispensing  with  mar- 
ketable   title,    must    be   clear, 
30 
purchaser  bound  by  agreement  to 

take  doubtful  title,  30 
common   conditions   of   sale,   27, 

29 
can  purchaser  show  aliunde,  that 

title  is  bad?   31 
how  conditions  construed,  32 
doubtful  conditions  construed  in 

favor  of  purchaser,  32 
defects  should  be  stated  in  the 

particulars,  32 
bidding     without     objection     to 

conditions,  32 
stipulation    that    sale    shall    be 

void  if  title  defective,  33 
declarations  of  auctioneer,  when 

admissible,  33 
discrepancy   between    particulars 

and  deed  referred  to,  34 
executory    agreements    merged    in 
deed     and     covenants.        (See 
MERGER.) 
mutual     agreements      to     rescind. 

(See  RESCISSION.) 
not   within    Statute   of    Frauds, 
630 


Agreements    respecting   the    title  — 

Continued, 
specific -performance  of  agreements 

519 
special  agreements  as  to  the  title, 

788 

Alien. 

conveyance  on  behalf  of,  without 
his  request,  title  held  market- 
able, 846,  n. 

Amendment, 
of    certificate   of   acknowledgment, 

75 

Annexation. 

of  certificate  of  acknowledgment  to 
deed,  64 

Application  of  purchase  money. 

duty  to  see  to,  makes  title  unmar- 
ketable, 862 

duty  to  see  to,  to  be  noted  in  ex- 
amining title,  179 

Apportionment. 

of  damages  on  breach  of  covenant 
as  to  part,  444 

Assets. 

heir  without,  not  bound  by  an- 
cestor's warranty,  374 

Assignee. 

in  bankruptcy,  covenants  by,  158 
caveat  emptor  applies  to  sales 

by,  138 

exception  in  New  York,  138 
of   covenants    for  title.      (See   the 

several   covenants.) 
not  bound  by  equities  of  which 

he  had  no  notice,  422 
may  sue  in  his   own  name,  when, 

411 

of  purchase-money  note  —  caution 
with  respect  to  rights  of,  554 

Assumpsit. 

when    may    be    brought    by    pur- 
chaser on  failure  of  title,  12,  14, 
639 
attacking  vendor's   title   in   action 

of,  503 
to  try  title,  503 

objection  that  question  of  title 
cannot  be  determined  in,  con- 
troverted, 504 

proper  action  to  recover  back  pur- 
chase money,  639 
but  cannot   be  maintained  after 
contract    has    been     executed, 
734 


INDEX 


[REFERENCES     ARE    TO    PAGES] 


Assurance.      (See   FTBTHER    Assra- 


Attachment. 
should  be  noted  in  examining  title, 

183 
must   be  docketed  to  bind  pur- 

chaser, 1S3 
is   breach  of  covenant  against  in- 

cumbrances,  when,  310 
is  an  objection  to  title,  when,  860 

Attestation  of  deed. 

necessity  for,  in  some  States,  58 
subscribing      witness      should      be 
competent,  58 

Attorney  in  fact. 
how  deed  should  be  executed  by, 

50 
how  deed  should  be  acknowledged 

by,  64 
usual  covenants   may  be  required 

from,   159 
title    as    dependent    on    entry    of 

satisfaction  by,  86S 

Auctioneer. 

verbal  declarations  of,  as  to  title 
admissible,  when,  27,  33 

Bankruptcy. 
caveat  emptor  applies  to  sale  by 

assignee,  when,  138 
covenants    for   title   by   bankrupt, 

158 

estoppel  of  bankrupt,  590 
title  as  dependent  on  act  of,  776,  n, 

797 
effect  of  discharge,  377 

Bargain,   Loas   of.      (See   DAMAGES, 

M  HAM-RE   OF.) 

Benefit. 

of     covenants,     who     entitled     to. 
(See  WARRANTY.) 

Bond  for  title.     (See  TITLE  BOXD.) 

Breach. 

of  covenant  for  seisin,  274 
against  incunrbrances,  308 
for  further  assurance,  477 
for  quiet  enjoyment  and  of  war- 

ranty, 379 

how  assigned  in  pleading,  471 
of   contract,   as   ground   for   dam- 

ages, 11 
for  rescission,  626 


Building  restrictions. 

constitute      breach     of      covenant 

against  incumbrances,  323 
render  title  unmarketable,  853 

Burden  of  proof. 

in  action  for  breach  of  contract,  16 

covenant  of  seisin,  294 

covenant  against  incumbrances, 
353 

covenant  of  warranty,  473 

by  vendor  for  specific  perform- 
ance, 753 

by  purchaser  to  recover  back 
purchase  money,  645,  765 

to  rescind  contract,  765 

to  show  marketable  title,  645, 
818 

Caveat  emptor. 
meaning   and    application    of    this 

maxim,  6,  79 
does  not  apply  between  lessor  and 

lessee,   443 
application  to  judicial  sales,  60 

what  is  a  judicial  sale,  80 

when  objections  to  title  must  be 
made,  81 

effect  of  confirmation  of  the  sale, 
81 

effect  of  bid  with  notice  of  de- 
fect, 83 

when  maxim  does  not  apply  to 
judicial  sale,  S7 

distinction  between  sale  of 
"  land  "  and  sale  of  "  estate," 
90 

comments  upon  the  maxim,  88 

does  not  apply  in  cases  of  fraud, 
90 

several  kinds  of  fraud  affecting 
judicial  sale,  91 

fraud  will  not  excuse  negligent 
purchaser,  91 

errors  and  irregularities  in  the 
proceedings,  92 

no  objection  to  title  thereunder, 
92 

unless  the  error  goes  to  tho  ju- 
risdiction, 97 

what  is  "collateral   attack."   00 

respects  in  which  jurisdiction 
may  be 'wanting.  1OO.  ln-j 

existence  of  jurisdictional  facts 
presumed,  103 

extraneous  evidence  inadmissi- 
ble. 104 

record  cannot  be  contradicted, 
104 

presumption  of  jurisdiction  does 
not  apply  to  inferior  courts, 
105 


INDEX 


967 


[REFERENCES  ABB  TO  PAGES] 


Caveat  emptor  —  Continued. 

when  does  want  of  jurisdiction 
appear  from  record?  106 

title  as  affected  by  matters  oc- 
curring afcter  jurisdiction  -has 
attached,  108 

fraud  as  ground  for  collateral 
attack,  109 

fraud  in  procuration  of  judg- 
ment, 109 

fraud  in  making  judicial  sale, 
110 

purchase   by   officer   invalid,    111 
application   to   sales   by   executors 
and  administrators,  112 

distinction  between  sales  under 
a  will  and  those  under  court 
orders,  113 

purchase  by  personal  representa- 
tive is  void,  113 

sales    in    pursuance    of.    judicial 

license,   113 
regarded  as  judicial  sales,  114 

effect  of  fraud  by  representative, 
115 

when1  purchaser  excused  from 
performance,  117 

want  of  jurisdiction,  errors'  and 

irregularities,  118 

application    to    sales    by    sheriffs, 
tax  officers,  etc.,  122 

maxim  strictly  applies  to  sher- 
iffs' sales,  1'22 

purchaser  cannot  recover  from 
execution  plaintiff,  126 

when  purchaser  relieved,  12-7 

effect  of  fraud  by  sheriff  atfd 
execution  -plaintiff,  129 

title  under  void  judgment,  130 

title  under  void  execution  sale, 
133 

maxim  strictly  applies  to  tax 
sales,  136 

and  to  sales  by  trustees,  as- 
signees, etc.,  136 

subrogation    of    purchaser    at    ju- 
dicial sale,  138 

where  sale  is  void,  138 

where  sale  is  valid,  144 

fraud  of  purchaser  destroys  right 
of,  145 

Certificate  of  acknowledgment,  requi- 
sites.    (See  ACKNOWLEDGMENT.) 

Cestui  que  trust. 

covenants    for    title    may    be    re- 
quired from,  158 

Champerty. 

as     connected    with     doctrine    of 
actual  seisin,  272 


Champerty  —  Continued. 

does  not  invalidate  covenants  for 
title,  276 

does  not  prevent  enuring  of  after- 
acquired  title,  when,  572 

Chose  in  action, 
right    to    damages    for    breach   of 

covenant  is,  279 

not  assignable  at  common  law,  281 
but  assignment  enforced  in.  equity, 

286 

Circuity  of  action. 

avoided  by  doctrine  of  estoppel  and 

after-acquired  estate,  575,  58.7 

by  detention  of  purchase  money 

on    breach    of    covenant,    493, 

700 

Collateral  attack.    (See  CAVEAT  «EMP- 

TOB.) 
on  judgment,  as  affecting  question 

of  title,  99 
definition  of  this  term,  99 

Common  conditions, 
of  sale,  what  are,  -27,  29. 

Compensation    for    defects    of    title. 

(See    PURCHASE    MONEY,    DAM- 
AGES.) 
purchaser  may   accept   title   with. 

(See  SPECIFIC  PERFORMANCE. ) 

vendor   may   require   purchaser   to 

take  title  with,  when,  907 

but  only  where  part  lost  is  not 
material,  907 

and  only  where  lien  is  inconsid- 
erable, 907 

equity  will  direct  an  inquiry  on 
these  points,  908 

purchase  with  notice  of  defect, 
908,  909 

contract  provision  for  abate- 
ment, 909 

compensation  decreed  according 
to  relative  value,  810 

remedy  of  vendor  is  exclusively 
in  equity,  910 

rule  does  not  apply  where  ob- 
jection- goes  to  title  to  whole, 
911 

contract  cannot  be  rescinded  in 
part,  911 

rule  where  title  to  one  of  several 
lots  is  bad,  911 

rule  does  not  apply  where  title 
fails  to  considerable  portion, 
912 

or  to  part  indispensable  to  en- 
joyment of  residue,  912 


968 


INDEX 


[REFEKKJiCES    ABE    TO    PAGES] 


Compensation  for  defects  of  title  — 
Continued. 

or  where  no  means  for  estimat- 
ing compensation  accurately, 
913 

purchaser  cannot  be  compelled 
to  accepjt  a  lesser  estate,  914 

nor  to  accept  an  undivided 
moiety,  915 

relief  denied  vendor  if  guilty  of 
fraud,  9J5 

and  where  he  has  evicted  pur- 
chaser, 915 

purchaser  cannot  be  compelled 
to  accept  indemnity,  915 

Concealment.     (See  FRAUD.) 
of     defects     of     title     fraudulent, 
when,  252 

Concurrent  remedies. 

various,  on  failure   of  title,   sum- 
marized, 3 

Condemnation  of  lands, 
in  eminent  domain,  no  breach  of 
warranty,  384 

Conditions, 
of  sale,   2-7,   29 

performance  of,  as  affecting  title, 
803 

Confirmation  of  sale.      (See  CAVEAT 

K.M1TOR.) 

purchaser    cannot    object    to    title 

after,  81 

exceptions  to  this  rule,  85 
comments  upon  the  rule,  88 

Conflict  of  laws. 

as  to  effect  of  covenants  for  title, 

288 

a»  to  validity  of  deed.  574 
as  to  measure  of  damages,  331 

Consideration. 

of  deed  may  be  shown,  436 
expressed,  not  conclusive,  436 
partial    failure    of,    as    defense   to 

action  for  purchase  money,  500 
\vailt  of.  no  defense  to  action  on 

warranty.  362 

of   sealed    instrument  may  be    in- 
quired into,  658 

Consideration    money.      (See    DAM- 
AGES, MKASCRK  OK.) 
usually    measure    of    damages    on 

brciidi  of   contract.  226 
and  on  breach  of  covenants,  424 
that  exprebbvi   may   be   contra- 
dicted, 436 


Consideration  money  —  Continued, 
if  none  expressed,  may  be  shown, 

436 

(See   INTEREST  AND   PURCHASE 
MONEY.) 

Construction. 

title  as  dependent  on,  of  deed  or 
will,  775,  S39 

Constructive  eviction.  (See  WAE- 
RAXTY,  COVENANT  OF.) 

inability  to  get  possession  of  prem- 
ises, 390 

compulsory  surrender  of  premises, 
394 

purchase  of  outstanding  title,  401, 
439 

Constructive  notice, 
of  defective   title  from  possession 

of  stranger,  188 

from  the  public  records,  207,  253, 
to2,  728 

Contingent  remainder, 
title    dependent    on,    not    market- 
able, 8U3 
will  not  pass  by  quit  claim,  when, 

59-i 

Continuing  breach,  Doctrine  of. 
of  covenant  for  seisin,  2SS 

Contract.  (See  AGREEMENT.) 
executory,  and  executed,  3 
executed,  cannot  -be  rescinded, 

when,  6,  8,  687,  938 
afDrmance  of,  3.     (See  ANALYSIS, 

p.  VII.) 

action  for  breach  of,  11 
implied   and  express,   as   to  title 

20,  24 

•usual  provisions,  24 
to     make     "  good     and     sufficient 

deed,"  34 
measure  of  damages  for  breach  of, 

225 
specific  performance  of,  519 

merger  of  executory,  in  deed,  489, 

714 
rescission  of,  626.     (See  ANALYSIS, 

p.  VII.) 

Conveyance.    (See  DEED.) 
tendered  by  vendor,  sufficiency  of, 
42 

Coparceners. 

.inls  implied  in  partition  be- 
tween, 372 


INDEX 


9G9 


[REFERENCES  ARE  TO  PAGES] 


Corporation, 
how   deed  of,  should  be  executed, 

51 

how  acknowledged,  64 
title    as    dependent    on    devise    to, 
844,  n. 

Costs. 

of  examining  title  may  be  recov- 
ered, 14,  233,  645 
recoverable  as  damages,  when,  233, 

453,  645 

of   perfecting  the   title,   878 
of  reference  to  master  in  chancery, 
902 

Counsel. 

fees  of,  as  element  of  damages, 
233,  453 

opinion  of,  not  admissible  on  ques- 
tion of  good  title,  773 

title  to  be  satisfactory  to  pur- 
chaser's, 790,  819 

Covenant,  Action  of. 
when  must  be  brought,  11 

Covenantor. 

may  except  incumbrance  or  par- 
ticular claims  from  covenant, 
302 

tortious  acts  of,  are  breach  of 
warranty,  382 

notice  to,  of  suit  of  adverse  claim- 
ant, 460 

Covenants, 
mutual  and  dependent,  when,  209, 

886 

Covenants  for  title. 
necessity  for,  147 
may  be  required  notwithstanding 

consent   to   take  defective   title, 

40 
what  are  the  usual  covenants  for 

title,  147 

form  of  the  usual  covenants,  147,  n 
right  to  full  or  general  covenants, 

150 
from  grantors  in  their  own  right, 

•  151 

from  nominal  party  to  deed,  156 
from  mortgagors,  157 
from  fiduciary  grantors,  158 
from  ministerial  grantors,  162 
specific  performance  of,  557 
operation  by  way  of  estoppel.    ( See 

ESTOPPEL.) 


Covenants  for  title  —  Continued, 
detention    of   purchase   money    on 

breach  of,  480 

(See  PURCHASE  MONEY,  DETEN- 
TION OF.) 

where  no  covenants  for  title,  705 
see  the  several  covenants  for  title 

for 

assignability 
what  constitutes  breach 
measure  of  damages 
when  implied 

persons  bound  and  benefited 
qualifications  and  restrictions 

Creditors, 
reformation  of  deed  as  against,  621 

Damages. 

when  action,  for,  on  failure  of  title 

improper,   15 

when  recoverable  in  equity,  528 
may  be  recovered  at  law  for 

breach    of    contract    to    convey 

good  title,   11,  223 
but    not    when    title    is    merely 

doubtful,  16 
fraud   and   deceit   in    respect   to 

the  title,  238 
breach    of    covenants    for    title, 

289,  339,  424 
recoupment,  493 

Damages,  Measure  of. 
when  too  remote,  223 
where   vendor  acts   in   good   faith, 

225 

none  for  loss  of  bargain,  225 
Flureau  v.  Thornhill,  Hopkina  v. 

Lee,  225 

barter  contracts,  232 
expenses  of  examining  title,  etc., 

233 
interest  as  element  of  damages, 

234 

rents  and  profits  as  set-off,  235 
no  allowance  for  improvements, 

236 

where  vendor  acts  in  bad  faith,  238 
where  vendor  expects  to  obtain  the 

title,  238 

where  vendor  refuses  to  remove  ob- 
jections, 243 
liquidated   damages,  244 
for  breach  of   covenants   for  title. 
(See  the  several  covenants.) 

Date. 

not  necessary  to  validity  of  deed, 

46 
of    certificate   of    acknowledgment, 

71 


970 


INDEX 


[BEKCBEXCKS     ARE    TO    PAGES] 


Death. 

title  as  dependent  on  presumption 
of,  815 

Decedent. 

title    as    dependent    on    insolvency 

of,  847 
intestacy  of,  847 

Deceit.    (See  FRAUD.) 

action  of,  when   it  lies,  247 

is    concurrent    with    action    for 
breach  of  contract,  13 

Declaration.    ( See  PLEADING,  DECEIT.  ) 
of  auctioneer  as  to  title,  27,  33 
what  should  be  set  forth, 

in  action  on  covenant  for  seisin, 

297 
covenant        against        incum- 

brances,  352 

covenant  of  warranty,  471 
for  breach  of  contract,  14,  16 
for  deceit,  268 
to      recover      back      purchase 

money,  608 
Deed. 

tendered  by  vendor,  sufficiency  of, 

42 
vendor    must  prepare   and   tender, 

43 
must  be   acknowledged  and  ready 

for  record,  43 
must   contain   covenants  to  which 

purchaser  entitled,  43 
essential  requisites  of  the  convey- 
ance, 44 

informal  or  irregular,  may  be  re- 
jected, 44 
may   be  corrected  and  reacknowl- 

edged,  45 
purchaser  must   accept,   correcting 

errors,  44 
consideration  should  be  recited  in 

some  States,  45 
should    be    written   or   printed   on 

paper  or  parchment,  45 
should  be  dated,  46 
dated  on  Sunday  is  valid,  46 
must  contain   parties  grantor  and 

grantee,  46 
should    set    forth    their    Christian 

names,  47 

but  name  need  not  appear  in  grant- 
ing clause,  47 

void  if  grantee  uncertain,  47 
to  fictitious  person  is  void,  47 
to  partners  should  be  to  them  as 

individual*,  48 

name*    of    parties    should   be   cor- 
rect ly  stated,  48 


Deed  —  Continued. 

owner  of  record  must  join  in  deed, 

48 
purchaser     may     reject     deed     of 

stranger,  48 
from  third  person,  when  sufficient, 

49 
all  parties  in  interest  should  join 

in,  50 

executed  by  attorney,  may  be  re- 
jected, when,  50 

how  executed  by  attorney  or  cor- 
poration, 50 

grantor  should  have  power  to  con- 
vey, 51 

and  be  legally  competent,  51 
how   partnership   conveys,  51 
should    contain    relinquishment    of 

dower  right,  50,  52 
must  contain  proper  words  of  con- 
veyance, 52 
but    not    necessarily    in    granting 

clause,  53 
must  contain  proper  description  of 

premises,  53 

sufficient  if  land  can  be  identi- 
fied, 54 

examples  in  which,  held  void,  54 
inadequate  description  no  notice 

to  purchaser,  55 
of  "assets"  will  not  pass  lands, 

55 

interest    conveyed    should    be    cor- 
rectly described,  56 
of  "right,  title  or  interest,"   is  a 

mere  release,  56 
of    greater    interest    than    vendor 

has,  not  void,  56 
should    be    signed    and    sealed    by 

grantor,  57 
seal  should  be  recognized  in  body 

of,  58 

attestation  of,  by  subscribing  wit- 
ness,   58.       (See    ACKNOWLEDG- 
MENT.) 
should    not    contain    unauthorized 

restrictions  or  reservations,  76 
containing  blanks  or  erasures  may 

be  rejected,  76 
objections  to,  must  be  made  when 

tendered,  77 

otherwise  held  to  be  waived,  77 
objections   to   title   apparent   from 

face  of,  176 
subsequent,  is  breach  of  warranty 

in  prior,  470 
when    passes    after-acquired    title, 

561 

when  reformed  in  equity,  603 
where   void,   purchase  money  may 
be  detained.  713.  7.17 


INDEX 


971 


[REFERENCES    ARE    TO    PAGES] 


Deed  —  Continued, 
title  as  dependent  on  construction 

of,  839 

as  dependent  on  defective,  833 
when  rescinded,  938 
tender  of  purchase  money  and  de- 
mand for,  209 

Defeasance, 
what  is  a,  183 
records  should  be  searched  for,  183 

Defective  conveyance.  (See  REFOR- 
MATION. ) 

purchaser  may  reject,  42.  (See 
DEED.) 

title   as   dependent  on,    833. 

Defective     title.        (See     DOUBTFUL 

TITLE.) 
classification  of  various  sources  of, 

176 
effect   of  purchase  with  notice  of, 

203 
rescission  of  contract  in  cases  of, 

626,  632,  749 
detention      of      purchase      money 

where.     (See  PURCHASE  MONEY.) 
notice  of,  no  bar  to  recovery  on 

warranty,  361 
concealment  of,  a  fraud,  252 
at   judicial    and    ministerial   sales. 

(See  CAVEAT  EMPTOB.) 

Defenses  of  purchaser, 
to  action  for  damages,  18 

suit  for  specific  performance,  752 
action  to  recover  purchase  money, 

480,  632 

Delay. 

in    suit    for    specific    performance, 

528 
of  vendor  in   performing  contract, 

894 

in  objecting  to  title,  199 
in  objecting  to  vendor's  fraud,  201 

Demand  for  deed.      (See  TENDER  OF 

PERFORMANCE.) 
as    condition    precedent    to    action 

for  damages,  209 
when  need  not  be  made,  212 

Deposit. 

may  be  recovered  if  title  is  de- 
fective, 636 

Descent. 

title  as  dependent  on  question  of, 
795 


Description. 

of    premises    in    deed,    53. 

DEED,  SUFFICENCY  OF.) 
title  as  dependent  on,  834,  n. 


(See 


Detention  of  purchase  money.     (See 
PURCHASE  MONEY,  DETENTION  OF.) 

Devisee. 

liability  for  damages  on  warranty 

of  devisor,  374 
of  covenantee  entitled  to  benefit  of 

covenant,  379 
title  as  dependent  on  devise,  839, 

840 

Disturbance. 

tortious,    no    breach    of    warranty, 

379 

unless    by    covenantor    himself, 
382 

Doubtful  title. 

question    of,    may    be    made    in    a 

court  of  law,  16 

purchaser    never    required    to    ac- 
cept, 767 

meaning  of  the  expression,  768 
and  of  the  expression  ''  marketable 

title,"  768 
mathematical  certainty  of  perfect 

title  impossible,  769 
doubts    must    not    be    captious    or 

frivolous,  770 
may  depend  on  question  of  law  or 

of  fact,  772 
this  objection  not  usually  made  by 

lessees,  773 
question  is  for  the  court  and  not 

for  the  jury,  773 
opinions  of  counsel  not  admissible 

on  question  of,  773,  819 
cases    in   which   title   will   be   held 

doubtful,  774 
probability  of  litigation  against 

purchaser,  774 
decision    adverse   to   title    which 

court  thinks  wrong,  775 
decision  in   favor  of  title  which 

court  thinks  wrong,  775 
doubtful  construction  of  instru- 
ment, 775 

where  court  would  instruct  jury 
to  find  in  favor  of  fact  invali- 
dating the  title,  776 
where  the  circumstances  raise  a 
presumption  of  a  fact  fatal  to 
the  title,  776 

cases    in   which   title   will   be   held 
not  doubtful,  776 


972 


INDEX 


[REFERENCES  ARE  TO  PAGES] 


Doubtful  title  —  Continued. 

whore  there  is  no  probability  of 
litigation  against  the  pur- 
chaser, 776 

where  there  has  been  a  decision 
against     the    title    which    the 
court  holds  wrong,  777 
where  the  doubt  depends  on  the 

general  law  of  the  land,  777 
or  on  a  rule  of  construction  un- 
affected by  context  of  instru- 
ment, 778 
or  on   a  conclusive  presumption 

of  fact,  778 
or    on    mere    suspicion    of    mala 

fides,  778 

question  of  doubtful  title  may  be 
made  at  law  as  well  as  in  equity, 
780 
judgment  on  question  of  title  does 

not  bind  strangers,  784 
this   fact   a   strong  ground  of  ob- 
jection to  title,  784 
in  some  States  vendor  permitted  to 
bring  in  parties  in  interest,  787 
special    agreements    respecting   the 

title,  788 
effect  of  agreement  for  "  good  title 

of  record,"  789 

effect   of   agreement    for  "market- 
able" title,  7S9 
that    titlo   shall    be    satisfactory 

to  purchaser.  790 
that   title    shall    be    satisfactory 

to  counsel.  790 
mere  expression  of  dissatisfaction 

insufficient,  792 

necessity  of  pnrol  evidence  to  re- 
move doubts  renders  title  un- 
marketable, 794 

but  title  not  necessarily  doubtful 
because  dependent  on  facts 
resting  in  parol,  795 
sale  implies  a  contract  that  title 
shall  be  deducible  of  record, 
796 

court  may  inquire  into  facts  on 

which  objection   is  rested,  797 

purchaser   cannot  be   compelled    to 

take  equitable  title,   795 
nor  title  controverted  in  good  faith 

by  adverse  claimant,  7U8 
mere  claim  without  color  of  title, 

no  valid  objection  to  title,  799 
title  in  litigation  is  unmarketable, 

801 
but    probability    of    litigation    not 

always  a  valid  objection,  802 
(lefensihility   of  estate  a   sufficient 
objection,  808 


Doubtful  title  —  Continued. 

title  perfected  by  Statute  of  Limi- 
tations is  marketable,  805 

unless  facts  constituting  the  bar 
are  in  dispute,  808 

possession  must  have  been  ad- 
verse, notorious,  hostile  and 
xminterrupted,  809 

with  means  of  establishing  that 
fact  if  disputed  in  the  future, 
809 

possession  of  purchaser  is  pro- 
longation of  that  of  vendor, 
810 

purchaser  may  reject,  when  con- 
tract provides  for  "  good  title 
of  record,"  810 

adverse  possession  of  mere  tres- 
passer insufficient,  811 

time  sufficient  to  bar  disabilities 
must  have  elapsed,  811 

burden  on  vendor  to  show  prima- 
facie  bar,  812 

and  on  purchaser  to  show  facts 

removing  the  bar,  813 
conclusive  presumption  from  lapse 
of  time,  814 

title  as  affected  by  other  pre- 
sumptions, 816 

title  dependent  on  question  of  no- 
tice is  unmarketable,  817 
burden  is  on  vendor  to  show  title 
prima  facie   free   from    doubt, 
818 

after  which  burden  shifts  to  pur- 
chaser to  show  doubts,  819 
illustrations  of  foregoing  principles, 
819 

general  observations,  820 

error  and  irregularities  in  ju- 
dicial proceedings,  821 

sales  of  the  estates  of  persons 
under  disabilities,  826 

want  of  parties  to  suits,  828 

defective  conveyances  and  ac- 
knowledgments, 833 

imperfect   registration,  833 

construction  of  deeds,  wills,  etc., 
839 

competency  of  parties  to  deeds, 
841 

title  as  dependent  on  intestacy, 
847 

and   on    insolvency  of   intestate, 

847,  n. 

incumhrances  which  make  title  un- 
marketable, 849 

admitted  incumbrances,  851 
casements,     rights     of     way, 
building     restrictions,     etc., 
851 


INDEX 


973 


[REFERBNCES    ABE    TO    PAGES] 


Doubtful  title  —  Continued. 

disputed  incumbrances,  859 

where  doubts  must  be  removed 
by  parol  evidence,  859 

Us  pendens,  860 

existence   and  enforcibility   of 
incumbrance,  861 

duty  to  see  to  application  of 
purchase  money,  862 

improbability       that       incum- 
brance will  be  enforced,  863 

apparently    unsatisfied    incum- 
brances, 864 

authority  to  enter  satisfaction, 
867 

encroachments  and  deficiencies, 
868 

Dower. 

right  of,  no  breach  of  covenant  for 

seizin,  277 

inchoate  right  of,  is  breach  of  cove- 
nant against  incumbrances, 
322 

renders   title   unmarketable,   855 
purchaser    may    have    indemnity 

against,  semble,  538 
purchaser  should  inquire  as  to  ex- 
istence of,   189 

assignment  of,  is  breach  of  war- 
ranty, 390 

Easements. 

should    be    inquired    for    by    pur- 
chaser's  counsel,    189 
no   breach   of   covenant  for   seizin, 

277 

constitute      breach      of      covenant 

against  incumbrances,  319,  323 

unless   notorious    and   visible   to 

purchaser,   327 
conflict     of     authority     on     this 

point,  331,  332 
in   granted    premises    a   breach   of 

warranty,  407 
measure  of  damages,  449 
render  title  unmarketable,  851 

Ejectment. 

notice  of,  to  covenantor  and  re- 
quest to  defend,  460 

request  to  prosecute,  466 

by  vendor  against  vendee,  when, 
673 

Election  of  remedies, 
by  purchaser,  3,  13,  247 
is  conclusive,  when  made,  14 

Eminent  domain. 

exercise  of,  no  breach  of  warranty, 
383 


Eminent  domain  —  Continued. 

purchaser  charged  with  notice  of 
proceedings,  186 

as  breach  of  covenant  against  in- 
cumbrances, 325,  note  24 

Encroachments. 

render  title  unmarketable,  868 

Equitable  estate. 

owner  of,  not  entitled  to  benefit  of 
covenants,  411 

purchaser  cannot  be  required  to  ac- 
cept, 798 

Equities. 

doctrine  of  purchaser  without  no- 
tice applies  only  to,  186 
no   application  where  legal  title 

is  outstanding,   186 
assignee  of  covenant  not  bound  by, 
between  original  parties,  422 

Equity.  (See  SPECIFIC  PERFORMANCE, 
RESCISSION,  REFORMATION,  IN- 
JUNCTION.) 

equitable  remedies  in  affirmance  of 

contract,   519 
in  rescission  of  contract,  749 

will  not  compel  purchaser  to  take 
doubtful  title,  767 

equitable  defenses  allowed  at  law, 
494 

measure  of  damages  in,  531 

quid  timet,  jurisdiction  of,  922 

Error  of  law. 

title  under  judicial  sale  not  af- 
fected by,  92 

renders  title  doubtful  when,  775, 
821 

Estate, 
to  be  considered  in  examination  of 

title,  178,  181 
after-acquired,    enures    to    grantee, 

561 

(See  ESTOPPEL.) 
purchaser     not    required    to    take 

equitable,  798 
nor  defeasible,  803 
covenant  of  seizin  is  broken  if,  is 
defeasible,  275 

Estate  for  life. 

measure  of  damages  where  grantee 

gets  only  an,  293,  448 
outstanding,  is  breach  of  covenant 
against  incumbrances,  319 


1)74 


INDEX 


[HEFIBINCES     ARE    TO     PAGES] 


Estate  for  years. 

outstanding,  is  breach  of  covenant 

against  incumbrances,  319 
but  not  of  covenant  for  seizin. 
277 

measure    of    damages    on   eviction 
from,  442 

Estoppel. 

grantor   estopped   to  assert   after- 
acquired  title,  561 
as  between  lessor  and  lessee,  564 
as    between    execution    debtor    and 

purchaser  under  execution,  564 
whore    grantor    pays    off    lien    as- 
sumed by  grantee.  564 
where   title    of    grantor    disseizing 

grantee,  is  cured  by  time,  564 
estoppel  binds  heirs  and  devisees, 

565 
bufe  only  to  the  extent  of  assets 

received,  565 

heirs  not  estopped  by  lineal  or  col- 
lateral warranties,  566 
warrantor    estopped    from    setting 

up  resulting  trust,  566 
no  estoppel  where  covenants  have 

been  extinguished,  566 
no  estoppel   in  cases  of  fraud   by 

grantee,  567 
after-acquired  estate  must  be  held 

in  same  right,  569 
estoppels  must  be  mutual,  570 
mortgagor   estopped    by    his    war- 
ranty, 570 
except   in   case  of  purchase-money 

mortgage,  571 
mortgagor   estopped   as   against   a 

subsequent  mortgagee,  572 
void  conveyance  operates  no  estop- 
pel. 572 
as   where   the  deed   i»  champer- 

toiiB.  572 
or  executed  in  fraud  of  creditors, 

573 

or  imperfectly  executed,  573 
exceptions.  574 

conveyances  of  public  lands,  574 
effect  as  actual   transfer  of  after- 
acquired  estate,  575 
subsequent  purchaser  from  grantor 

not  affected,  576 
contrarv    rule    in    some    of    the 

States.  577 
subsequent  purchaser  with  notice 

is  hound,  530 

grantee  mu*t  accept  after-acquired 

estate  in  lieu  of  damages,  581 

Mr.  Kawle'x  dixnentlng  view,  f>82 

but  title  must  havo  been  acquired 

before  action  brought,  584 


Estoppel  —  Continued. 

what    covenants    will    pass    after- 
acquired  estate,  5S5 

any  of  the  covenants  unless 
special  or  limited,  586 

circuity  of  action  not  avoided  by 
estoppel,  when,  587 

mere  quit  claim  or  release  will 
not  operate  an,  591 

heir  or  remainderman  conveying 
by  quit  claim  not  estopped, 
594 

general  covenants  will  not  oper- 
ate an  estoppel,  when,  595 

when  quit-claim  will  operate  an 

estoppel,  597 

Van    Rensselaer    v.    Kearney, 
597 

effect  of  covenant  of  nonclaim 
by  way  of  estoppel,  598 

quit-claim  estops  grantor  of  pub- 
lic lands,  when,  509 

fiduciary  and  ministerial  grant- 
ors not  estopped,  599 

execution  debtor  not  estopped  by 

sheriff's  deed.  600 
grantee  not  estopped  to  deny  title 
of  grantor,  600 

but  cannot  set  up  adverse  title 
against  him,  600,  757 

except  where  vendor  attempts  to 
convey  public  lands,  441,  601 

or  has  been  guilty  of  fraud  re- 
specting the  title.  601 

or  where  the  grantee  has  been 
evicted,  601 

or  where  the  contract  has  been 

rescinded,  601 
resumC>  of  principles,  601 

of  married  women,  588 

of  purchaser  to  deny  vendor's 
title,  678 

Eviction.    ( See  WABBANTT,  COVENANT 

OF.) 
not    indispensable    to    purchaser's 

action  for  damages,  17 
not  necessary  to  breach  of  covenant 

for  seizin,  271 

actual  and  constructive,  388,  390 
no  compulsory  acceptance,  of  after- 
acquired  title  in  case  of,  581 
detention  of  purchase  money  as  de- 
pendent on,  657 

where  contract  is  executory.  657 
executed,  480,  687,  022,  934 

Evidence. 

parol.  admissible  to  show  true  con- 
nideration,  436 


INDEX 


975 


[REFERENCES    ABE    TO    PAGES] 


Evidence  —  Continued. 

of  value  of  warranted  premises 
consideration  money  is,  436 

of  paramount  title  in  evictor,  no- 
tice dispenses  with,  461 

parol,  to  show  mistake  in  deed,  616 
must  be  clear  and  positive,  616 
to  remove  doubts  as  to  title,  79*4 

Examination  of  title. 

should  not  be  left  to  incompetent 

person,   165 
time  allowed  for,  171 
classification    of    inquiries    to    'be 

made,  176 

expenses  of,  233,  645 
consequences   of   omission    of,    254, 

428 

Exchange. 

covenants  implied  in,  372 
measure  of  damages  for  breach  of 
contract  to,  232 

Executed  and  executory  contracts. 

what  are,  3 

as  regards  detention  of  purchase 
money,  480,  -632.  (See  CON- 
TRACT. ) 

Execution. 

of  deed  by  corporation  or  agent,  -51 
caveat  emptor  applies  to  sale  un- 
der, 122.    (See  CAVEAT  EMPTOB.) 

Executors  and  administrators. 

caveat  emptor  applies  to  sales  by, 

112.      (See   CAVEAT   EMPTOB.) 

purchase  of  trust  subject  .by,  is 

void,  110 
should  enter  into  special  covenants 

only,  158 

personally  liable  on  general  cove- 
nants,  16.0 
liable    on    testator's    covenant    of 

warranty,  377 
entitled  to  benefit  of,  when,  318 

Expenses. 

of    examining    title    may    be    re- 
covered, 233,   645 
of  perfecting  the  title,  439,  459 
of  defending  the  title,  234,  453,  459 

Experts. 

opinion  of,  as  to  title  not  -admis- 
sible, 773,  819 

Express  contract.     (See  AGREEMENT, 
CONTRACT.) 

Extinguishment  of  covenants. 

by  reconveyance  to  covenantor,  423 


Fact. 

title  as  dependent  on  question  of, 

772,  776,  778 

mistake  of,  as  ground  for  reforma- 
tion of  deed,  606 
for    rescission    of    executed   con- 
tract, .943 

Failure    of    title.       (See    DEFECTIVE 

TITLE  and  ANALYSIS,  p.  VII.) 
right    to    recover    back    or    detain 
purchase  money  on.      (See  PUB- 
CHASE  MONEY,  DETENTION  OF.) 

False  statements.     (See  FRAUD,  DE- 
CEIT.) 

Fees. 

of  counsel  for  examining  title,  lia- 
bility of  vendor  for,  234,  645 
in  defending  title,  234,  453,  459 

Fee  simple. 

estate  sold  presumed-  to  be  a,  21 

Fence. 

duty    to   maintain,    is    an    incum- 
brance,  324 

Fiduciary  vendors. 

caveat  emptor  applies  to  sales  by, 

112.     (See  CAVEAT  EMPTOR.) 
covenants  for  title  by,  158 

Forged  instrument. 

lying  in  chain  of  title,   188 

registration     does     not     protect 
purchaser,   188 

Fraud. 

as  ground  for  collateral  attack,  109 

of    vendor,    effect    on-    purchaser's 
rights,  247 

purchaser  may  elect  to  rescind  or 
affirm,  248 

fraud  without  injury  gives  no  ac- 
tion, 249 

fraud  of  agent  binds  principal,  250. 
(See  AGENT.) 

what   constitutes  fraud   respecting 

the  title,  252 

concealment  of  defects,  252 
defects   apparent   of  record,   254 
willful  or  careless  assertions,  255 
existence    of    fraudulent    intent, 

263 
statement  of  opinion,  264 

facts    showing   fraud  must  be    al- 
leged, 268 

burden   of  proof  is  on  purchaser, 
269 

fraud   not   merged    in    conveyance, 
718 


97G 


INDEX 


[REFERENCES  ABE  TO  PAGES] 


Fraud  —  Continued. 

of  vendor  bars  right  to  perfect  the 
title,  888 

as  affecting  title  under  judicial  or 
ministerial  sale.  (See  CAVEAT 
EMPTOR.  ) 

as  ground  for  detaining  or  recov- 
ering back  purchase  money,  739, 
919 

right  to  rescind,  waived  when,  746 

Fraudulent  conveyance. 

title  derived  under  sufficiency  of, 
780,  818 

remote  purchaser  under,  charged 
with  notice,  when,  179 

will  sustain  transfer  of  after  ac- 
quired title  by  estoppel,  when, 
572 

Furthur  assurance,  Covenant  of. 
form  and  effect,  476,  477 
what  constitutes  breach,  477 
effect  by  way  of  estoppel,  478 
runs  with  the  land,  478 
measure  of  damages  for  -breach,  479 

"  Good  and  sufficient  deed." 

effect  of  agreement  to  make,  34 

Good  right  to  convey.    (See  SEISIN.) 

"  Grant,  bargain  and  sell." 

covenants  implied  from  these 
words',  273,  300,  370 

Guardian. 

caveat  emptor  applies  to  sales  by, 

138 
title  as  affected  by  acts  or  powers 

of,  826,  827,  notes 
in     judicial     proceedings,     827, 
notes 

Heirs. 

liable    on    covenants    of    ancestor, 

374 

entitled  to  benefit  of,  when,  374 
word,  omitted  from  deed  may  be 

supplied,  M  1,  n. 

title   as   dependent  on   fact  of  in- 
heritance, 768,  795 
conveyance  of  expectancy  by,  595 

Highway. 

no   breach   of  covenant   of   seisin, 

277 
is  breach  of  covenant  against  in- 

cumbrance,  when,  327 
conflict    of    authority    on    this 

point,  328,  n. 

notice  of,  as  affecting  right  to  re- 
scind, 205 


Husband   and   wife.      (See   MARRIED 
WOMEN.) 

Idem  son'ans. 

cases  of,  as  affecting  title,  835,  836 

Implied  covenants. 

from    words   "  grant,  bargain   and 

sell,"  273,  300,  370 
in  a  lease,  37-2 
in  an  exchange,  372 
in  partition,  372 
none  from  mere  recitals   in  deed, 

373 

Improvements. 

purchaser  not  allowed  damages  for 

loss  of,  230,  290,  428,  450 
except)  in  cases  of  fraud,  429 
and  sometimes  in  equity,  763 
and  except  in  certain  States,  433 

Incapacity. 

of  parties,  title  as  dependent  on, 
177,  188,  &41 

Incumbrance.       ( See     INCUMBRANCE, 
COVENANT    AGAINST,    PURCHASE 
MONEY,  DETENTION  OF.) 
operates  no  change  in  title,  2 
definition,  310 
what  constitutes,  308,  852 
to  be   searched   for   in   examining 

title,  182 

concealment  of,  is  fraud",  252,  254" 
as  ground  for  detention  of  purchase 

money,  648 

•where  contract  is  executory,  648 
where  contract  is  executed,  480, 

508 
cannot  be  verbally  except ed  from 

covenants,  302 

renders   title   unmarketable,   651 
may  be  discharged  out  of  purchase 

money,  552 
when   subject  to   compensation   or 

indemnity,  532,  538,  909,  913 
vendor   may    be   compelled    to    re- 
move, 524,  659 

right  of  vendor  to  remove,  524 
subrogation  of  pucha*er  to  benefit 

of,  555 

conveyance  "subject  to,"  305 
assumption  of  by  purchaser,  653 

Incumbrance,  Covenant  against, 
form  and  effect,  299 
implied  from  certain  words,  300 
distinguished  from  covenant  to  dis- 
charge incumbrance,  301 


INDEX 


977 


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Incumbrance,     Covenant     against  — 

Continued. 

restrictions  and  exceptions,  302 
must  be  expressed  in  conveyance, 

303 

cannot  be  shown  by  parol,  303 
contrary  rule  in  Indiana,   304,  n. 
assumption  of  mortgage  by  grantee, 

305 
effect  of  conveyance  "  subject  to " 

mortgage,  305 

what  constitutes  breach  of,  30S 
mere    existence    of    incumbrance 

operates  breach,  309 
definition  of  term  "  incumbrance," 

310 

pecuniary  charges  or  liens,  310 
notice  of  same  immaterial,  311 
when  taxes  constitute  breach, 

312 

outstanding  estate  in  the  prem- 
ises, 319 
easements    or    physical    incum- 

brances,    323 

building  restrictions,   323 
party  walls,  326 
notice   of   easement   as   affecting 

breach,  327 
conflict  of  decision  on  this  point, 

330 

runs  with  land   for  benefit  of   as- 
signee, 335 

contrary  rule  in  some  States,  336 
measure  of  damages  for  breach  of, 

339 
nominal,   where   no    actual   loss, 

339 

judgment    a   bar    to    future    re- 
covery, 341,  350 
where  grantee  discharges  incum- 
brance, 342 
amount    paid    must    have    been 

reasonable,    344 
covenantee  not  bound  to  redeem, 

345 
damages-  cannot  exceed  purchase 

money  and  interest,  346 
damages   where    incumbrance    is 

permanent,  350 
of  lessee  against  lessor,  349 
pleadings     must     describe     incum- 
brance, 352 

discharge   of   same   must   be   al- 
leged, 353 

burden  of  proof  on  plaintiff,  353 
detention    of    purchase    money    on 
breach  of  covenant,  508 

Indemnity. 

as   general   rule   purchaser  cannot 
demand,  537  • 


Indemnity  —  Continued, 
nor  be  required  to  accept,  915 
against   inchoate    right   of    dower, 
538 

Infant. 

title    as    dependent   on    rights    of, 

825,  826,  notes, 
infancy    of    grantor    in    chain    of 

title,  188 

Inheritance. 

words  of,  in  deed,  supplied,  611,  n. 
title,  as  dependent  on  question  of, 
189,  795 

Injunction  against  collection  of  "pur- 
chase money, 
where    the    contract    is    executorv. 

658 

when   the   contract   has   been   exe- 
cuted, 917 

general  observations,  917 
where  the  grantor  was  guilty  of 

fraud,  919 

injunction   granted   though   no 
breach  of  covenants  has  oc- 
curred,  919 
so,   also,   in  case   of   mistake, 

919 
grantor    cannot    be    forced    to 

action  for  damages,  920 
grantee  setting  up  fraud  as  de- 
fense to  action  for  purchase 
money   cannot   have    injunc- 
tion, 920 
want   of   opportunity   to   defend 

at  law,  921 

injunction    denied,    when    de- 
fense   may    be    made    at 
law,  921 
or  might  have  been  so  made, 

921 

but    granted    if    defense    pre- 
vented by  fraud,  accident  or 
mistake,  921 
and  where  no  opportunity  for 

defense,  921 
as  in  case  of  enforcement  of 

deed  of  trust,  922 
or    in    strict    foreclosure    of 

mortgage,  922 

and  in  case  of  after-discov- 
ered facts,  922,  n. 
remedy  on  covenants  must  be 

unavailing,  922 
where  grantor  is  insolvent  or  a 

non-resident,  granted,  922 
though     there     has     been     no 

breach  of  covenants,  922 
this  upon  the  principle  of  quid 
timet,  922 


978 


INHKX 


[REFERENCES     ARE    TO    PAGES] 


Injunction  against  collection  of  pur- 
chase money  —  Continued, 
but     suit     must     have     been 
prosecuted    or    threatened 
by  adverse  claimant,  923 
except     in    certain    of    the 

States,  934 
insolvency  must  be  alleged  in 

the  bill,  924 

transfer  of  negotiable   securi- 
ties, will  be  enjoined,  926 
no  perpetual  injunction  where 
purchaser  must  accept  com- 
pensation, 926 

bill    must    allege    clear,    out- 
standing title,  926 
and  that  claimant  is  prosecut- 
ing or  threatening  suit,  926 
mere  doubts  as  to  the  title  in- 
sufficient, 926 

complainant       must       confess 

judgment  at  law.  when,  927 

injunction      granted      against 

transferee  of  note,  927 
unless    puri-ha.-er   for   value, 

without  notice,  etc.,  927 
if  injunction  perpetual,  plain- 
tiff should  reconvey.  928 
where  estate  is  incumbered.  92S 
unimportance  of  non-residence 
or    insolvency     of    grantor, 
928 

grante,p  cannot  pay  off  lien  and 
set  it  up  against  grantor, 
929 

incumbrance  no  ground  for  re- 
scission, !':2!> 

injunction   against   foreclosure 
of  purchase-money  mortgage 
denied.  !'LH» 
except  in  case  of  prior  incum- 

branec.  f»30 
denied   where   no  covenants   for 

title,  931 
presumptions    against   grantee 

in  such  oaso*.  fl3I 
temporary  and  perpetual  injunc- 
tion,' 932 
effect  of  perpetual   injunction, 

damages  on  dissolution  of  in- 
junction. 
resume-,  933 

where  no  present  right  to  re- 
cover substantial  damages. 
034 

absolnt.-      want      of      title      as 
ground  of   injunction.   i'.'H 
without 

di'iiry     <.r     iii-.h  i-n.-v     of 

grantor, 


Injunction  against  collection  of  pur- 
chase money  —  Continued. 

or  to  threats  or  prosecution 
of  suit  bv  adverse  claim- 
ant, 934 

or  to  reconveyance  by  gran- 
tee, 934 

this  doctrine  enforced  in 
Va.  and  W.  Va., 

not  recognized  elsewhere, 
935 

rested  upon  ground  of  in- 
adequacy of  reined  v  at 
law,  935 

and  as  protection  to  pur- 
casher  under  a  trust,  !'.':7 

but  complaint  must  show  a 
clear  outstanding  title, 
936 

mere  doubts  as  to  title  in- 
sufficient, 936 

Insolvency. 

of    covenantor    as   ground    for    de- 
taining purchase  money,  9^2 

Installments. 

tender    of    deed    where    purchase 
money  payable  in,  218 

Interest. 

as  element  of  damages,  234,  450, 

531 
set  off  against   rents   and    profits, 

when,  234 
on  purchase   money   while  title   is 

being  perfected,  900 
on  purchaser's  deposit,  645 

Interlineations. 

to  be  noted  in  examining  title,  179 

Joint  tenants. 

should  covenant  severally,  l.">7 

Judgment 

where  void,  title  under.   130 

subrogation  to  benefit  of,  13S.  r>"> 

should  be  noted  in  examining  title. 
183 

no  breach  of  covenant   for   pcisin. 
277 

is  breach  of  covenant  against    in- 
cumbrances,  310 

of    eviction    without    di-p"---  --ion 
no  breach  of   warranty,  390 

several   separate,   may    be   nit- 
on  warranty,  when.  412 

when   conclusive   evidence   of   para- 
mount title.  4fil 

apparently   un-ati-licd    render   title 
unmarketable,  864 


INDEX 


979 


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Judgment  —  Continued. 

must  be  confessed  on  application 
for  injunction,  927 

Judicial  sales.    ( See  CAVEAT  EMPTOR.) 
caveat  emptor  applies  to,  80 
title  as   dependent  on  validity  of, 

92,  821,  823,  n.,  825,  n. 
not  affected  by  reversal  of  de- 
cree, 94 

purchaser  at,  entitled  to  benefit  of 
covenants,  415 

Jurisdiction. 

of  officer  taking  certificate  of  ac- 
knowledgment, 60 

want  of,  exposes  judgment  to  col- 
lateral attack,  97 

Jury. 

fact  of  notice  to  defend  ejectment, 
question  for,  468 

Laches. 

in  objecting  to  title  is  waiver  of 
objection,   199 

exceptions  to  this  rule,  200 
in  suing  for  reformation  of   deed, 

617 
mistakes    resulting    from,    not    re- 

lievable,  614,  751 
of  vendor  in  perfecting  title,  bars 

his  right,  891,  894 

Land. 

will  not  pass  under  word  "  assets," 
55 

warranty  does  not  extend  to  quan- 
tity of,  363 

value  of,  at  time  of  sale  is  meas- 
ure of  damages,  225,  424 

Landlord  and  tenant.     (See  LEASE.) 

Lease. 

lessor  must  covenant  generally,  157 
to    be    noted    in    examination    of 

title,   182 

outstanding,  is  no  breach  of  cove- 
nant of  seisin,  277 
but  is  breach  of  covenant  against 

incumbrances,  319 
covenant  implied  in  lease,  371 
tortious  disturbances  by  lessor,  381 
title   of  lessor  not  usually  exam- 
ined, 157,  443,  773 
damages  on  eviction  of  lessee,  442 
lessee  may  recover  back  rent,  when, 
444 

Legal  estate. 

vendor  need  not  have,  but  must 
obtain,  523,  874,  890 


Legal  process. 

not  necessary  to  eviction  of  cove- 
nantee,  388 

Lien, 
should  be  noted  in  examination  of 

title,  183,  184 
is  breach  of  covenant  against  in- 

cumbrance,  310 
of    purchaser    on    failure   of    title, 

680 

does  not  exist  if  vendor  is  solv- 
ent, 681 

nor  as  against   purchaser  with- 
out notice,  682 

Life  estate.     (See  ESTATE  FOB  LIFE.) 

Limitations,  Statute  of. 

begins     to    run     on     covenant     of 

seisin,  when,  287 
on  covenant  of  warranty,  when, 

387 

title  under,  is  marketable,  805. 
(See  DOUBTFUL  TITLE.) 

Liquidated  damages. 

in  excess  of  purchase  money  may 

be  recovered,  244 
but  amount  must  be  reasonable, 

244 

and  not  a  penalty  or  forfeiture, 
244 

Lis  pendens. 

should  be  noted  in  examining  title, 

183,  184 

not  an  incumbrance,  when,  309 
renders   title  unmarketable,  when, 

860 

Loss    of    bargain.      (See    DAMAGES, 
MEASURE  OF.) 

Lots. 

failure  of  title  to  part  of  several, 
911 

Marketable  title.  (See  DOUBTFUL 
TITLE.) 

original  technical  meaning  of  this 
expression,  768 

modern  use  of  this  expression,  768 

doctrine  of,  no  longer  restricted  to 
equity,  780 

purchaser  may  demand,  767 

question  of,  is  for  the  court,  773, 
819 

opinions  of  counsel  on  question, 
not  admissible,  773 

classification  of  cases  of  unmarket- 
able. 774,  819 

title  by  adverse  possession,   805 


«.)SO 


INDEX 


[RKFBRENCES     ABE    TO     PAGES] 


Married  women.     (Sw  DOWER.) 
right    to    require    covenants    from, 

156 

bound  by  covenants,  373 
estopped     by    their    covenants    in 

some  States,  589 
acknowledgment    of    deed.       (See 

ACKNOWLEDGMENT. ) 

when  deeds  of,  will  be  reformed, 
624 

coverture  to  be  noted  in  examin- 
ing title,  183 

Mechanic's  lien. 

to  be  noted  in  examination  of  title, 
183 

Merger. 

of  executory  contract  in  deed,  489, 

714 
of   verbal   stipulations   as   to   title 

in  deed,  489.  714 

cases    in    which    merger    does    not 
occur  collateral  stipulations  of 
which   deed    not   necessarily   a 
performance,  489 
where  deed   is   void,  711 
rule  in   Pennsylvania,  716 
rule  in  Indiana,  304,  n. 
fraud  not  merged  in  deed,  718 

Mesne  profits.     (See  INTEREST.) 
as  set  off  against   purchaser's  de- 
mand for  interest,  234,  4f>0 
purchaser  not  liable  to  vendor  for, 
when,  234,  759 

Metes  and  bounds. 

not  indispensable  to  description  in 

deed,  54 
where  uncertain   or  impossible,   55 

warranty  does  not  extend  to,  363 

Ministerial  vendors. 

tut  nit  I'm  p  tor  applies  to  sales  by, 

79,  121,  122,  136 
general     covenants     not     required 

from,  162 

Misnomer. 

aa  objection  to  sufficiency  of  deed, 
47 

M  objection  to  sufficiency  of  cer- 
tificate of  acknowledgment,  63 

title  as  dependent  on,  835,  n. 

Misrepresentations.    (See  FRAUD,  DE- 
CEIT.) 

Mistake. 

as  ground  for  reformation  of  deed. 
(See  REFORMATION.) 


Mistake  —  Continued, 
rescission  of  executed  contract,  938, 

943 
mistake   of   fact,   943 

mistake  as  to  fact  on  -which 
title  depends.  944 

as  where  estate  has  been  di- 
vested by  happening  of  some 
event  of  which  the  parties 
are  ignorant,  944 

and  where  subject-matter  of 
contract  has  no  existence, 
945 

but  mere  ignorance  of  out- 
standing title  in  a  stranger 
no  ground  for  relief,  946 

except  when  grantee  has  pur- 
chased his  own  estate,  igno- 
rant of  his  title,  948 

mistake  cannot  be  availed  of 
at  law,  949 

mistake  as  to  existence  of  the 
premises,  949 

where  deed  does  not  convey 
the  lands  purchased,  949 

grantee  must  reconvey  the 
premises,  950 

mistake  must  not  have  arisen 
from  negligence,  951 

mistake  must  have  been  ma- 
terial, 952 

mistakes  as   to  quantity,   952 
mistake  of  law,  953 

in  many  cases  no  ground  for 
relief*  953 

but  relief  granted  in  some 
cases,  954 

distinction  between  ignorance 
of,  and  mistake  of  law,  956 

"  ignorance  of  law  does  not 
excuse  "  applies  only  to  tin* 
general  public  laws,  959 

erroneous  construction  of  de- 
vise or  grant,  960 

where  true  construction  of  the 
law  is  doubtful,  960 

misrepresentation  of  law  by 
vendor.  061 

mistake  must  be  mutual,  961 

Money  had  and  received. 

action  for,  where  title  has  failed, 

639 

expenses  of  examining  title  not 
recoverable  in,  645 

Mortgage.     (Sec  INCUMBRAXCE.  PfR- 

CHA.HK  MONEY.) 
general  covenants  must  be  inserted 

in.  157 
to  be  noted  in  examining  title,  183 


INDEX 


981 


[REFERENCES  ARE  TO  PAGES] 


Mortgage  —  Continued, 
in    form    an    absolute    deed,    pur- 
chaser without   notice  of,    187 
.operates  no  breach  of  covenant  of 

seisin,  277 
is   breach   of   covenant  against   in- 

eumbrances,  310 

excepted    by    parol    from    cove- 
nants, 303 
effect  of  purchase  "  subject  to," 

305 

eviction  under,  is  breach  of  cove- 
nant of  warranty,  404 
mortgagees    entitled   to   benefit   of 

covenant  of  warranty,  419 
for  purchase  money,  foreclosure  of, 
where  title  has   failed,  496,  929 
mortgagor   estopped   by   covenants 

in,  570 
unless  given  for  purchase  money, 

420,  571 
detention  of  purchase  money  where, 

exists,  508,  648 

renders  title  unmarketable,  when, 
849,  859 

Municipal  corporation, 
cannot   warrant  title,  378 

Negligence.     (See  LACHES.) 
mistake  resulting  from,  no  ground 

for  reformation,  614 
nor  for  rescission,  951 

Nominal   damages.      (See   DAMAGES, 

MEASURE  OF.) 
on   breach   of   covenant  for  seisin, 

when,  292,  293 
against  incumbrance,  339 
judgment   for,   bars    second   action 

on  same  covenant,  341 
but  not  on  other  covenants,  292 

Non-claim,  Covenant  of. 

equivalent   to    covenant   of   special 

warranty,   359 
will   operate  an  estoppel   in   some 

States,  598 

Non-residence. 

as  ground  for  purchaser's  lien  on 

the  premises,  681 
as  ground   for  enjoining  collection 

of  purchase  money,  922 
title   as   dependent   on   proceedings 

against  non-resident,  824,  n. 

Notice. 

of  incumbrance,  when  immaterial 
to  action  for  breach  of  cove- 
nant, 311 

when  material  in  case   of  phys- 
ical incumbrance,  327 


Notice  —  Continued, 
of  defect  does  not  affect  liability 

on  warranty,  361 
as  affecting  right  to  rescind  con- 
tract, 203,   492,   652 
rule  in  Texas  and  Pennsylvania, 

512,  724,  726 

to  covenantor  of  ejectment  and  re- 
quest   to    defend,    460.       (See 
WARRANTY.) 
not  indispensable  to  recovery  on 

warranty,  468 
necessary   to   affect  assignee   with 

equities,  422 

purchaser  of  after  acquired  estate 
from    covenantor    without,    pro- 
tected, 576.     (See  ESTOPPEL.) 
deed  recorded  prior  to  inception  of 

grantor's  title,  not,  577 
of  intent  to  rescind,  627 
time  made  material  by,  897 
record  as  notice  to  purchaser,  254, 
726 

Objections, 
to  title,  waiver  of,    (See  WAIVER 

OF  OBJECTIONS.) 
summary  of  different  sources  of, 

173 
to  deed,  should  be  seasonably  made, 

77 
and  to  abstract  of  title,  172 

Officer, 
of  corporation,  should  execute  deed, 

how,  51 

how  acknowledge,  64 
caveat  emptor  applies  to  sales  by, 

122,  136 
covenants'  cannot  be  required  from, 

162 

taking  certificate  of  acknowledg- 
ment. ( See  ACKNOWLEDG- 
MENT.) 

title  as  dependent  on  powers  of, 
834,  n. 

Omissions.     (See  MISTAKE.) 

from  deed  as  ground  for  reforma- 
tion, 607 

Opinion. 

mere  expression  of,  as  to  title,  no 
evidence  of  fraud,  264 

of  conveyancing  counsel  inadmis- 
sible on  question  of  title,  733, 
819 

Orphan's   court   sales.    (See  CAVEAT 
EMPTOR.) 


982 


INDEX 


[REFEUEXCKS   ABE  TO  PAGES] 


Paramount  title. 

in  a  stranger,  no  breach  of  war- 
ranty, 385 

must  be  hostilely  asserted  to  con- 
stitute breach  of  warranty,  394, 
405 

notice  to  defend  ejectment  dis- 
penses with  proof  of,  in  evictor, 
460 

need  not  be  set  forth  with  par- 
ticularity  in   pleading,  472 
but     eviction     under     must     be 

averred,  472 

outstanding,  as  ground  for  detain- 
ing   purchase    money,    658,    687, 
917.     (See  PURCHASE  MONEY  OF 
LANDS.) 
purchaser  may  buy  in,  549 

but  cannot  use  to  defeat  vendor's 

title.  600 
exception,  601 

Parol  agreements.     (See  MERGER.) 
as  to  removal  or  assumption  of  in- 

cumbrance,  302 

as  to  title,  merged  in  deed,  when, 
4S9,  714 

Partial  failure  of  consideration, 
as  ground   for  detaining   purchase 
money,  500 

Particulars  of  sale. 

usually     prepared     and     circulated 

before  day  of  sale,  29 
should  state  defects  of  title,  3*2 

Parties. 

names  of,  must  be  inserted  in 
deed,  46 

competency  of,  to  be  noted  in  ex- 
amining title,  177,  181,  18S 

bound  and  benefited  by  covenant 
of  warranty,  373 

to  suit  for  rescission,  765 

title  as  dependent  on  want  of,  to 

suit,  828 
competency  of,  to  deed,  841 

Partition. 

covenants  implied  in,  when,  372 
title  as  dependent  on   proceedings 
in,  S22,  824,  n. 

Partners.    ( See  Jorxr  TEXANTS,  TEN- 
ANTS IN  COMMON 
how  should  execute  deed,  51 
how  deed  executed  to,  48 

Party  wall. 

is  a  breach  of  covenant  against  in- 

cumbrances,  when,  326 
when  not.  326 

renders  title  unmarketable,  when, 
857 


Patent  defects. 

vendor  not  bound  to  call  attention 
to,  256 

Patents  of  land. 

lying  in  chain  of  vendor's  title. 

180 

purchaser  charged  with   notice  of 
defect  in,  when,  ISO 


Payment.      (See    PURCHASE 

DETENTION  OF.) 
of  purchase  money  is  waiver  of  ob- 

jection  to   title,   when,  201 
as  condition  precedent  to  action 

for  damages,   15 
suit    for   specific   performance, 
526 

Perpetuities. 
to  be  noted  in  examining  title,  1S1 

Personal  expenses. 

when     allowed     as     damages     on 
breach  of  warranty,  459 

Personal  representatives.     (See  Ex- 

ECUTOBS    AND    ADMINISTRATORS.) 

Pew  assessments. 

when  no  breach  of  covenant  against 
incumbrances,  313,  n. 

Pleadings.      (See  the  several  coven- 
ants.) 

Possession. 

taking,   when  waiver  of  objection 

to  title,   196 
inability  to  get,  is  a  constructive 

evicti'on,  390 
of  stranger  is  notice  to  purchaser, 

188 
must  be  restored  to  vendor,  when, 

671 

vendor  may  recover,  when.  673 
title  by  adverse,  is  marketable,  805 
detention      of       purchase       money 

where,  undisturbed,  687 

Possibility. 

bare,   when   no  objection   to  title, 
770,  819,  n.,  826,  n. 

Powers. 

of  parties  to  be  noted  in  examin- 

ing title,  51,  177,  181.  1S8 
defective    execution    of    statutory. 

not  aided  in  equity,  618 
title  as  dependent  on.  and  compe- 

tency of  parties,  841,  843,  n. 

Power  of  attorney. 

validity  of  deed  executed  under,  50 


INDEX 


[REFERENCES  ARE  TO  PAGES] 


Power  of  attorney  —  Continued. 

to  execute  gives  power  to  acknowl- 
edge deed,  64 

title,  as  dependent  upon  exercise 
of,  84-4,  n. 

entry  of  satisfaction  under,  867 

Presumptions. 

every  title  dependent  to  some  ex- 
tent on,  817 

from  lapse  of  time,  title  as  de- 
pendent upon,  814 

of  death,  title  as  dependent  upon, 
815 

of  satisfaction  of  incumbrance,  866 

Principal.     (See  AGENT,  ATTORNEY.) 
is  affected  by  agent's  fraud,  250 
but  not  liable  in  damages,  250 

Privity  of  estate. 

essential  to  doctrine  of  estoppel, 
580 

Privy  examination  of  married  women. 
(See  ACKNOWLEDGMENT.) 

Public  lands. 

estoppel  of  grantor,  574,  599 
entry  by  vendee  of,  440 

Public  road.     (See  HIGHWAY.) 

Purchase. 

of  paramount  title  is  constructive 
eviction,  when,  401 

Purchase-money  mortgage. 

failure  of  title  no  ground  for  en- 
joining foreclosure  of,  929 

Purchase  money  of  lands. 

detention   of,  on   failure   of   title, 

632 

general  principles,  632 
where  the  contract  is  executory, 
634,  636 

general     rule     that     purchase 
money  may  be  detained,  636 

forfeiture  of   deposit  by   pur- 
chaser, 638 

exceptions     to     and    qualifica- 
tions of  general  rule,  642 

what  objections  may  be  made 
to  title,  644,  767 

expenses     of     examining     the 
title,  645 

burden   of   proof  lies   on   pur- 
chaser, 645 

right   to   detain,  where   estate 
is  incumbered,  648 

taxes   and   assessments,   650 

application  'of  purchase  money 
to  incumbrances,  650 


Purchase  money  of  lands  —  Cont'd. 
buying  with  knowledge  of  de- 
fect or  incumbrance,  652 
chancing  bargains,  654 
burden  on  vendor  to  show  as- 
sumption of  risk,  855 
effect  of  accepting  title  bond, 

656 

consideration  of  sealed  instru- 
ment may  be  inquired  into, 
658 
injunction  against  collection  of 

purchase  money,   658 
in  cases  of  fraud,  660 
not   necessarily   a   disaffirm- 

ance  of  contract,  660 
bill  must  aver  tender  of  pur- 
chase money,  661 
effect  of  transfer  of  purchase- 
money  note,  662 
refusal    of    vendor    to    convey 

for  want  of  title,  662 
purchaser  must  show  tender  of 

purchase  money,  210,  663 
,  where  purchase  money  is  pay- 
able in  installments,  665 
payment    of    purchase    money 
not    a    condition    precedent, 
when,   667 
purchaser  must  show  offer  to 

rescind,  667 
pleadings  and  burden  of  proof, 

668 

purchaser  must  restore  prem- 
ises to  vendor,  670 
fact     that     he     has     made 
improvements   immaterial, 
673 
vendor    must    be    placed    in 

statu  quo,  674 
restoration  a  condition  pre- 
cedent to  rescission,  676 
rule  in  Pennsylvania,  677 
restoration  in  cases  of  fraud, 

678 

when  purchaser  need  not  re- 
store premises,  680 
where    vendor    refuses    to 

receive  them,  680 
where  detention  necessary 
for    purchaser's    indem- 
nity, 681 

purchaser's   lien    for    pur- 
chase money,  681 
where  title   fails   to   part 

only,  683 
where  the  contract  is  void, 

685 
where  covenants   for   title  have 

been  broken,  480 
general  rule,  481 


INDEX 


[REFERENCES  ABE  TO  PAGES] 


Purchase  money  of  lands  —  Cont'd. 
cannot      detain,      where       no 

breach  of  covenants,  487 
exception  to  this  rule,  488 
merger  of  prior  agreements, 

489 
purchase    with    knowledge    of 

defect,   492 
recoupment.  493 
recoupment  in  foreclosure  suit, 

496 

partial    failure    of    considera- 
tion, 500 

assumpsit  to  try  title,  503 
what  constitutes  eviction,  504 
purchase  of  outstanding  title, 

504 

discharge  of  incumbrances,  508 
rule  in  Texas,  511 
rule  in  South  Carolina,  514 
pleadings.  517 
resume,  518 
where    covenant    of    seisin    has 

been  brefken,  687 
semblc   that    purchaser  may   de- 
tain in  some  of  the  States,  687 
though  he  ha^s  not  been  evicted, 

689 

provided  there  is  a  moral  cer- 
tainty of  eviction,  702 
and  provided  he  reconveys  the 

premises.  701 
breach  of  this  covenant  as  to 

part  of  the  premises,  704 
where   covenants    for    title   have 

not   boon  broken.  481 
general   rule   is  that   purchase 

money    cannot   be   detained, 

481     ' 

except  in  cases  of  fraud.  799 
and   whore  equity   exercises  a 

quia   timct  jurisdiction,  922 
where    there    are    no    covenants 

for  title.  705 
general  rule  is  that  purchaser 

cannot  dvtain,  705 
reasons  for  this  rule,  707 
want  of   title  is  not  of   itself 

a  mistake.  709 
purchaser     should     be     subro- 

gated   to   benefit  of    incum- 

brance,  710 
exceptions     to     general     rule 

above.  711 
where   the  deed   w  absolutely 

void,  711 

merger    of    all    prior    agree- 
ments   respecting    the   title, 

714 
what  agreements   not  merged 

in  conveyance,  716 


Purchase  money  of  lands  —  Cont'd. 
fraud  not  merged   in  convey- 
ance, 718 

rule  in  Pennsylvania  as  to  de- 
tention       of         purchase 
money,  722 
absence     of     covenants     for 

title  immaterial.  722 
unless   purchaser  had  notice 
of  defective  title,  722,  724 
constructive     notice     insuf- 
ficient, 726 
adverse  title  must  be  clear 

and  undoubted.  725 
incumbrunce  must  equal  un- 
paid  purchase  money.  7'26 
purchaser's  risk  of  the  title, 

when  presumed,  727 
no  presumption   from  notice 
of  pecuniary  incumbrance, 
when,  728 

presumption  where  deed  con- 
tains covenants   for  title, 
728 
no    relief    unless    covenants 

have  been  broken,  729 
no  relief  by  way  of  recover- 
ing    back     the     purchase 
money,  730 

Pennsylvania   rule   does   not 
apply     to    sheriff's     sales, 
732  ' 
nor  to  judicial  or  ministerial 

sales,  732 
detention    or    restitution    in    cases 

pf  fraud,  739 

purchaser    may    always    recover 
back    or    detain,    in    cases'   of 
fraud,  739 
whether  contract  is  executory  or 

has  been  executed,  739 
whether    there    are    or    are    not 

covenants  for  title,  739,  742 
whether  covenants  have  or  have 

not  been  broken.  739,  742 
purchaser     electing     to     rescind 

must  notify  vendor,  739 
purchaser  may  affirm  instead  of 

rescind  contract,  740 
concurrent  remedies  4n  ca»M  of 

fraud,  7.41 
may  be  availed  of.  aa  defense  at 

law,  742 

what  amounts-  to  fraud  by  ven- 
dor, 745 

waiver  in  cases  of  fraud,  745 
by    acceptance    of    conveyance 
with    knowledge    of     fraud, 
746 
by   laches    and   delay,   745 


INDEX 


985 


[REFERENCES    ARE    TO    PAGES] 


Purchase  money  of  lands  —  Cont'd. 

purchaser  does  not  -waive  dam- 
ages   by   affirming   contract, 
747 
may  be  recovered  back  on  failure 

of  title,  when,  632 
where  contract  is  executory,  632. 

(See  above,  DETENTION  OF 
PURCHASE  MONEY,  and  632.) 

general  rule  is  that  purchase 
money  may  be  recovered 
back,  63'2 

where  vendor  wrongfully  con- 
veys away  the  premises,  646 

where  vendor  tenders  insuf- 
ficient deed,  647 

purchaser  at  judicial  sale  can- 
not recover  back,  647 

where  title  is  unmarketable, 
647,  767.  (See  DOUBTFUL 
TITLE.) 

fact  that  contract  was  within 
Statute  of  frauds  immate- 
rial, 647 

cannot  recover  more  than  pur- 
chase money,  interest  and 
expenses,  648 

where  contract  has  been  exe- 
cuted cannot  be  recovered 
back  eo  nomine,  734 

purchaser's  remedy  is  on  the 
covenants,  734 

cannot  recover  on  contempo- 
raneous- parol  agreement  to 
refund,  737 

nor  maintain  bill  in  equity 
against  vendor,  702,  737 

rule  does  not  apply  in  case  of 
mistake,  73.7 

nor  where   deed   is   absolutely 

inoperative,  737 

title  as  dependent  on  duty  to  see 
to  application   of,  662 

Purchaser. 

remedies   of,  on  failure  of  title,  8 

right   of    purchaser   to   action    for 

breach  of  contract,  11 
must  have  paid  purchase  money 
in  full,  15 

in   possession   may   sue   for  dam- 
ages, 17 

right  to  require  a  title  free  from 
defects,  -20,  767 

may    reject    conveyance    tendered, 
when,  42. 

entitled    to    what    covenants    for 
title,  150,  151 

bound    by    maxim    caveat    emptor, 
when,  80 

may  require  abstract  of  title,  163 


Purchaser  —  Continued, 
entitled   to   time   for  examination 

of  title,  171 
should    make    what    inquiries    in 

pais,  186 
what  acts  of,  amount  to  waiver  of 

objections  to   title,   191 
must  tender  purchase  money  and 

demand  deed,  when,  210 
may  maintain  action  on  the   case 

for  deceit,  247 
may  surrender  possession  to  owner 

of  better  title,  394 
may    detain    purchase    money    on 

failure  "of  title  — 
where  the  'contract  is  executory 

626,  632-,  74*9 
where  covenant  of  warranty  ha* 

been  broken,  481 
on  breach  of  covenant  of  seisin, 

semble,  687. 

in  cases  of  fraud,  739/938 
cannot   detain  purchase  money  on 

failure  of  title  — 
where    no    covenants    for    title, 

705 
except  in  certain  States,  722, 

732 
where    objections1    to   title    have 

been  waived,  190 
may  recover  back  purchase  money 

on  failure  of  title  — 
where  the  contract  is  executory, 

632 
but  not  after  contract  has  been 

executed,   734 
his  remedy  is  on  the  covenants 

if  any,  734 
entitled  to  specific  performance  of 

the  contract,  when,  519 
and  to  damag.es  in  equity,  when, 

528 
may  elect  to  take  the  title  though 

defective,  532 
or  with  compensation  for  defects, 

532 

has  a  right  to  perfect  the  title,  549 
estopped  to  deny  title   of  vendor, 

when,  600,  6,78 

subrogated  to  benefit  of  lien,  555 
may    compel    removal    of    incum- 

fcrances,  when,  559 
may  compel   transfer  of   after-ac- 
quired title,  560 

entitled  to  reformation  of  convey- 
ance, when,  603 
may  rescind  contract  on  failure  of 

title,  when-,  626,  749 
by  notice  -without  suit,  626 
by    proceedings    at    law    or    in 
equity,  632,  749 


I'M; 


INDEX 


IOEFERENCKS   AKK  TO  PAGES] 


Purchaser  —  Continued, 
must  restore  premises  to  vendor  on 

rescission,  670 
but  has  lien  for  purchase  money, 

when,  6SO 

cannot  be  required  to  accept  doubt- 
ful title,  767 
may   require   record  title,  when, 

788,  810 
cannot    be   compelled   to   buy   a 

law-suit,  SOI 

compelled   to   take   title   by   ad- 
verse  possession,  when,   805 
must  take  title  with  compensation 

for  defects,  when,  907 
may  enjoin  collection  of   purchase 

money,   when,   658,  917 
relieved  where  subject  of  contract 

does  not  exist,  944 
and  where  lie  buys  his  own  es- 
tate, 948 
and   in   other   cases  of   mistake, 

943,   954 
and     wherever     the     vendor     is 

guilty  of  fraud,  919,  938 
duty  to  see  to  application  of  pur- 
chase  money,  862 
estopped    to   'deny    vendor's    title, 

600,  678 

must  account  for  rents  and  profits, 
675 

Purchaser's  defenses.    (See  PCBCHASE 

MONEY  OF  LANDS.) 
to  action  for  breach  of  contract,  18 
to    suit    for   specific    performance, 

752 

Purchaser  without  notice. 

not  protected  where  vendor  had  no 

actual   legal   title,   186 
is    protected    against    equities    in 

third  persons.  186 
of  equities  between  covenantor  and 

covenantee,  422 
of  after -acquired  estate  protected, 

576 
record  as  notice  to,  255,  726 

Qualified  covenants. 

express     agreement     will     restrict 

covenant  of  warranty,  365 
general    covenants    not    restrained 

unless    intent    clearly    appears, 

365 
subsequent    limited    covenant    will 

not     restrain     prior     covenant, 

when,  365 
restrictive  words  in  first  covenant 

extend  to  all,  when,  365 


Qualified  covenants  —  Continued. 

general  covenant  does  not  enlarge 
subsequent  limited  covenant,  366 

restrictive  words  in  one  will  not 
control  other  covenants,  when, 
366 

equity  will  reform  deed  by  insert- 
ing restriction  or  qualification, 
368 

Quantity. 

covenant  of  warranty  does  not  ex- 
tend to,  363 

purchaser  must  accept  title  with 
compensation  for  loss  of  small, 
of  estate,  when,  907 

Quia  timet. 

equity  will  exercise  this  jurisdic- 
tion on  failure  of  title,  when, 
922 

Quiet  enjoyment,  Covenant  for.  (See 
WARRANTY,  COVENANT  OF.) 

same  in  effect  as  covenant  of  war- 
ranty, 474 

what  constitutes  breach,  475 

implied  in  leases,  371 

tortious  disturbance  by  landlord 
is  breach  of,  382 

Quit  claim.  (See  COVENANTS  FOR 
TITLE.) 

what  is,  148 

agreement  to  convey  by,  39 

purchaser  accepting  cannot  detain 

purchase  money,  707 
except  in  case  of  fraud,  739 

passes  benefit  of  covenants  for 
title,  414 

but  will  not  transfer  after-ac- 
quired title,  when,  591,  597 

Railway. 

when  existence  of,  is  breach  of 
covenant  against  incumbrances, 
330 

Rebutter. 

operation  of  covenants  for  title  by 
way  of,  582 

Recitals. 

in  deed  put  purchaser  upon  no- 
tice, 178 

no  covenants  implied  from  mere, 
373 

sometimes  operate  as  an  estoppel, 
373 

Recognizance. 

to  DO  noted  in  examining  title.  1K4 


INDEX 


987 


[REFERENCES  ARE  TO  PAGES] 


Reconveyance. 

on    detention    of    purchase    money 

where    'breach    of    covenant    of 

seisin,   692,   701 
on  rescission  of  executed  contract, 

939 

Record. 

defects  of  title  apparent  from  pub- 
lic, 182 

purchaser  charged  with  notice 
from  public,  when,  254,  726 

when  purchaser  may  require  good 
title  of,  24,  788,  '810 

cannot  be  collaterally  attacked  on 
question  of  title,  when,  92 

title  as  dependent  on  sufficiency  of, 
833,  834,  n. 

in  ejectment  made  evidence  against 
vendor  by  notice,  460 

Recording  acts. 

notice,  as  between  vendor  and  pur- 
chaser, by  virtue  of,  255 

record  of  deed  prior  to  inception 
of  grantor's  title,  576 

Recoupment. 

distinguished  from  set-off,  495 
detention    of    purchase    money    by 

way  of,  493 

on  foreclosure  of  purchase-money 
mortgage,  496 

Reference  of  title  to  master  in  chan- 
cery. 

title  will  be  referred,  when,  900 
when,  is  matter  of  right,  901 
denied     where     purchase     was     a 

chancing  ibargain,   901 
and   where    the    court    is    satisfied 

about  the  title,  902 
at  what  stage  of  proceedings  refer- 
ence is  directed,  902 
procedure  on,   902 
costs  of,  how  decreed,  903 

Reformation  of  the  conveyance. 

by  insertion  of  covenants  for  title, 
368 

is  a  familiar  ground  of  equitable 
jurisdiction,  603 

is  a  species  of  specific  perform- 
ance, 604 

plaintiff  should  first  have  ten- 
dered corrected  deed,  604 

unless  defendant  has  refused  or 
was  incompetent  to  execute 
same,  604 

and  except  in  suit  to  reform  and 
foreclose  mortgage,  604 

defendant  refusing  to  correct  must 
pay  costs,  605 


Reformation    of    the    conveyance  — 

Continued. 

bill  must  contain  prayer  for  refor- 
mation, 605 

but  held    that   prayer  for   "  other 
and  further  relief  "  sufficient,  605 
reformation  of  deed  does  not  con- 
travene  Statute  of  Frauds,  605 
equities  of  both  parties  will  be  en- 
forced, 605 
adverse  possession  by  stranger  no 

objection  to,  606 

purchaser  under  void  sheriff's  sale 

•cannot  sue  for  reformation,  606 

how    mistakes    in    recording    deed 

corrected,   606 
mistake    of    fact    in    insertion    or 

omission  relievable,  606 
contents  as  intended  but  founded 

in  mistake  of  fact,  606 
mistake  in  wills  cannot  foe  cor- 
rected, 608 
patent  ambiguity  in  a  deed  may 

be  corrected,  608 
reservations  will  not  be  inserted 
unless   omitted   through   fraud 
or  mistake,  608 

equity  will  insert  omitted  cove- 
nants for  title,   608 
unless  purchaser  knew  character 

of  the  deed,  608 

ignorance  of  defective  title  no 
ground  for  inserting  warranty, 
608 

mistake  of  law  no  ground  for  ref- 
ormation,  609 

contrary  view  in  some  cases,  610 
where  deed  fails   to   express   in- 
tention  of  parties,   610 
distinction    between    reformation 

and  rescission,  610 
court    merely    enforces    original 

contract,  '610 
what    is    mistake    of    fact,    and 

what  mistake  of  law,  610 
mistake   must   have   been   mutual, 

612 
unless   defendant   was   guilty   of 

fraud,  614 
though    the    fraud    might    have 

been   discovered,   614 
mere    ignorance    of    contents    of 
deed   no   ground    for   reforma- 
tion, 614 
pleadings  must  allege  mutuality 

of  mistake,    613 
mistake    must    not    have    resulted 

from  negligence,  614 
exceptions  to  this  rule,  615 
nature  and  degree  of  evidence  re- 
quired, 615 


988 


INDEX 


[REFERENCES    ARE    TO    PAGES] 


Reformation    of    the    conveyance  — 
Continued. 

no  difficulty   in   case  of   patent 

mistake,  615 
parol     evidence     admissible     to 

show  mistake,  616 
but  must  be  clear  and  positive, 

616 

burden  of  proof  is  on  complain- 
ant, 616 

inconsistence  of  deed  with  prior 
contract  not  necessarily  a  mis- 
take, 616 

laches  in  application  for  relief,  617 
not  imputable  until  discovery  of 

mistake,  617 
nor  where  grantor  has  refused  to 

correct,   617 
defective    execution    of    statutory 

power  will  not  be  aided,  618 
except    in   mere   matters   of    de- 
scription, 618 
right    not    confined    to    immediate 

parties,  618 
but  complainant  must  be  party 

or  privy  to  the  deed,  618 
remote  grantee  entitled,  618 
denied  purchaser  at  sheriff's  sale, 

619 
denied    grantee    owing    part    of 

purchase  money,  01'.' 
grantor  entitled  to  reformation, 

619 
but  deed   is  always  construed 

strongly  against  -him,  tii'o 
and  denied  in  case  of  his  neg- 
ligence, 620 

and  where  he  insists  upon 
payment  of  the  purchase 
money.  • 

may  be  decreed  again-t  heirs,  de- 
vi-ees,  gnMii <•«••<   and  others, 
120 
persons    in    interest    must    be 

made  partic*.   ii_'l 
when  grantor  not  a  necessary 

party,  621 

may  be  decree  1   iii  favor  of  and 
against       .-ul>-c<|iient       pur- 
chasers  and   creditors,    ti.'l 
but    not    as    ii 

without  notice 
possession  sufficient  as  notice, 

tat 

mistake   on    face   of   deed    ia 

lint: 

bill  miiHt  aver  notice  to  de- 
fendant, 623 

piirrlniHcr  must  have  paid 
value,  623 


Reformation    of    the    conveyance  — 
Continued. 

volunteer  not  entitled  to  refor- 
mation as  against   grantor, 
624 
but  is  entitled  as  against  other 

persons,   624 
granted  in  favor  of  mortgagee 

of  volunteer,  i;-J4 
examples   of   sufficient  consid- 
eration,  (>- 1 
married-  woman's  deed  will  not 

be  reformed,  624 
except    in    matters   of  descrip- 
tion, 625 

and   except   where   disabilities 
fcave  been  removed,  023 

Registration  of  deeds.     (See  RECORD 
AND  KECORDIXO  ACTS.) 


(See     RECORDING 


Registry     acts. 
ACTS.) 

Release.     (See  QUIT  CLAIM.) 

does  not  affect  subsequent  assignee 

of  covenants,  414 
will  pass  benefit  of  covenants  for 

title,    414 

will  not  operate  estoppel  or  rebut- 
ter, 591 

Remedies. 

of  the  parties  on   failure  of  title. 
(See  Analysis,  p.  VII.) 

Rents    and    profits.       (See 

PROMTS.) 
purchaser  must  account  for,  675 

Rescission. 

of  executory  contract,  4,  740 
by  proceedings  at  law. 
by  net   of  the  parties  t'-JiJ 

rescission  is  abrogation  of  the 

contra.  !.   trjil 
ways   in   \\liich   resci.-Mon  may 

iir.  ti'J!> 
may   :iK  ur  by  con-«  nl 

of    parties.   C29 
consent    may   be   implied   from 

acquiescence.    (ij!» 
party    rescinding    should    give 

notice   of    intent.   629 
each  party  must   re-tore  \\h;it 

he  has  received.  • 
HO     forfeiture     of     puicha 

(lepo-ii    in  -inh  eases,  628 
though  contract  proviiN 
siii-h   forfeiture,   i 

liv  act  of  one  party 
only,  628 


INDEX 


989 


[REFERENCES  ABE  TO  PAGES] 


Rescission  —  Continued. 

but  one  party  cannot  deprive 
the  other  of  right  to  per- 
form, 630 

may     sometimes    treat    the 
contract  as  rescinded  630 
rescission  by  consent  not  with- 
in Statute  of  Frauds,  630 
by  proceedings  in  equity,  749 
suit  for  rescission  proper,  749 
may    be    maintained    where 

title  has  failed,  749 
not    dependent   on    right   to 
maintain   action  for  dam- 
ages,  750 

grounds   of    equitable   juris- 
diction, 751 
fraud    always    ground    for, 

751 
reduction    of    agreement    to 

writing,  immaterial,  75 !• 
rescission  where  vendor  had 

no  power  to  sell,  751 
when  purchaser  estopped  to 

rescind,   751 

defenses  to  vendor's  suit  for 
specific         performance, 
752 
doubtful  or  unmarketable 

title,  753 

unless    sale    was    of    such 
title      or     interest      as 
vendor  had,  753 
vendor    must    show    title 

prima  facie,  753 
purchaser  must  then  show 

defects,  754 

objection  to  title  may  be 
made  after  answer,  754 
vendor  resting  his  title  on 
particular  [ground  can- 
not shift  after  suit  be- 
gun, 754 

vendor  on  rescission  must  be 
placed  in  statu  quo,  755 
purchaser     must     restore 
premises  to  vendor,  755 
denied,      where      premises 
cannot    be    restored    in 
same    condition    as    re- 
ceived, 756 

unless  injury  can  be 
abated  from  purchase 
money,  756 

substantial          compliance 
with  rule  sufficient,  758 
vendor's      remedy      when 
purchaser  refuses  to  re- 
store, 757 

contract  must  be  rescinded 
in  toto  or  not  at  all,  757 


Rescission  —  Continued. 

vendor  may  recover  prem- 
ises in  ejectment,  757 
purchaser      estopped      to 

deny  his  title,  757 
restoration     as     condition 
precedent  to   rescission. 
758 

cases  in  which  purchaser 
may  refuse  to  restore 
the  premises,  758 
purchaser  entitled  to  inter- 
est on  purchase  money, 
when,  759 

rents  and  profits  usually 
set  off  against  interest, 
759 

unless  purchaser  liable  to 
true  owner  for  mesne 
profits,  760 

when  not  liable  to  vendor 
for  mesne  profits,  759, 
760 

in     equity    purchaser     al- 
lowed for  improvements, 
762 
unless    made    with   notice 

of  defect,  763 

purchaser's    pleadings    must 
show   how   title   is   defec- 
tive,   764 
who     necessary    parties     to 

suit  for  rescission,  765 
of  executed  contract,  938 

generally  denied  except  in  cases 

of  fraud  and  mistake,  938 
(See  MISTAKE,  and  943.) 
(See     PURCHASE     MOITEY,     and 

•687.) 

fraud   always   a  ground   for  re- 
scission, 940 
fraud  not  merged  in  warranty, 

940 

decree  must   provide  for   recon- 
veyance, 939 
purchaser  must  reconvey  or  offer 

to  reconvey,  941 
except  where  vendor  has  no  color 

of  title,  941 

or  has  refused  to  accept  a  recon- 
veyance, 941 
purchaser  must  act  promptly  on 

discovery  of  fraud,  942 
damages    allowed    purchaser    on 
rescission  when,  5*28,  942 

Reservation. 

unauthorized,  in  deed,  76 
of  vendor's  lien  to  be  noted  in  ex- 
amining title,  179 


990 


INDEX 


[REFERENCES    ARE    TO    PAGES] 


Reservation  —  Continued. 

of  minerals  is  an  incumbrance,  853 

other  reservations,  853 
by  parol,  inadmissible  in  evidence, 

808 

Restoration  of  premises  to  vendor, 
necessary  on  rescission  of  contract, 

670,  755 

though  purchaser  has  made  im- 
provements, 673 
vendor  must  be  placed  in  statu 

quo,  674,  755 

as  condition  precedent  to  rescis- 
sion, 676 

rule  in  Pennsylvania,  677 
in  cases  of  fraud,  678 
when  rule  does  not  apply,  680 

where  vendor  refuses  to  receive 

them,  680 

where  detention  necessary  for 

purchaser's    indemnity,    681 

purchaser's    lien   for    purchase 

money  paid,  681 
where  title  fails  to  part  only, 

683 
where  the  contract  is  void,  685 

Restrictive  covenants, 
as  objection  to  deed,  76 
as  incumbrances,  323 
make  title  unmarketable,  853 

Resulting  trust. 

purchaser   without  notice   not   af- 
fected by,  187 

Right  of  way. 

to   be   inquired   for  by   purchaser, 

1  Otr 

when  a  breach  of  covenant  against 
incumbrances,   323 

notice  of,  to  purchaser  at  time 

of  covenant,  327 
is  not  breach  of  covenant  of  seisin, 

277 

renders  title  unmarketable,  851 
loss  of  or  eviction  from,  a  breach 

of  warrant}',  407 
through     warranted     promises,     a 

breach  of  warranty,  408 

"Right,   Title  and   Interest."      (See 

QUIT  CLAIM.) 

effect  of  agreement  to  sell,  40 
conveyance     of,     passes     after-ac- 
quired estate  when,  597 

Right  to  convey,  Covenant  for.    (See 
COVENANT  OF  SEISIN  ) 

Roads.     (See  HIGHWAYS.) 


Root    of   title.      (See   ABSTRACT  OF 

TITLE.) 
what  is,  165 

Running   with   the   land.      (See   the 
several  covenants  for  title.) 

Sale.     (See  JUDICIAL  SALE,  CAVEAT 

EMPTOB.) 
implies  indefeasible  title  in  vendor, 

20 

of  fee  simple  implied,  21 
by  personal  representatives,   112 
sheriffs  and  others,  122,  136 

Satisfaction  of  lien. 

by  surety  should  be  noted   in  ex- 
amining title,  183 
of    incumbrance,    when    presumed, 
866 

Scroll. 

in  place  of  a  seal  sufficient,  57 

Seal. 

necessity  for,  57 

scroll  sufficient,  57 

must  'be  recognized  as  seal,  when, 
58 

to  be  noted  in  examining  title,  157 

does  not  exclude  inquiry  into  con- 
sideration, 658 

Seisin,  Covenant  for. 

form  and  effect  of,  270 

importance  of,  271 

requires  an  indefeasible  estate,  275 

in  some  States  satisfied  by  bare 
possession,  272 

implied  from  certain  words  of 
grant.  273 

right  of  action  for  breach  is  per- 
sonal, 274 

what  constitutes  breach,  274 
mere  incumhranre  docs  not.  -J77 

not  affected  by  champertous  deed, 
276 

does    not     run    with    land    after 

breach,  270.  280 

contrary  rule  in  some  States,  283 
possession  must  have  passed  with 
deed,  287 

when  Statute  of  Limitations  begin 
to  run,  287 

whore  action  munt  be  brought,  288 

measure  of  dnmngc  for  breach.  2S9 
nominal,  if  no  eviction,  292 
loss  of  part  of  estate  only,  J 

burden  of  proof  in  action  for 
breach,  294 

pleadings  in  action  for  breach,  297 


INDEX 


991 


[REFERENCES   ARK  TO  PAGES] 


Seisin,  Covenant  for  —  Continued, 
detention    of    purchase    money    in 
case  of  breach,  6S7.      (See  PUB- 
CHASE  MONEY  OF  LANDS.) 

Set-off.      (See    COUNTERCLAIM,    RE- 
COUPMENT.) 

Sheriff's  sale.    (See  CAVEAT  EMPTOB.) 
caveat  emptor  applies  to,  122 
exceptions,  127 

title  under  void  judgment,  130 
title  under  void  execution,  133 
purchaser     cannot     require     cove- 
nants, 162 

covenants  enure  to  benefit  of  pur- 
chaser at,  415 

Pennsylvania,  equitable  doctrine  of 
detention  of  purchase  money 
does  not  apply  to,  732 

Signature. 

of  grantor  to  deed  not  essential,  57 

but  should  be  required  by  pur- 
chaser, 57 

of  certifying  officer  to  certificate  of 
acknowledgment,  71 

to  be  noted  in  examination  of  title, 
177 

Sovereignty.      (See   ACTS  OF  SOVER- 
EIGNTY, EMINENT  DOMAIN.) 

Specific    performance.       (See    TITLE, 
RIGHT    TO    PERFECT,   COMPENSA- 
TION FOB   DEFECTS,   PURCHASES, 
DOUBTFUL  TITLE.) 
of   executory  contracts   at   suit   of 

purchaser,  519 
denied  where  vendor  has  no  title, 

520 
and  where  equitable  title  is  in  a 

stranger,  521 

granted    as   against    second   pur- 
chaser with  notice,  521 
vendor  must  make  reasonable  ef- 
fort to  get  in  title,  523 
want  of  title  at  time  of  contract, 

no  objection,  523 
when  vendor  may  be  required  to 

remove  incumbrance,  524 
when   he   cannot   be   required  to 

remove  defect,  524 
abandonment  of  contract  waives 

right   to   specific   performance, 

525 
acceptance  of  offer  to  sell  must 

be  unqualified,  525 
effect  of  acceptance  of  purchaser 

"  provided  the  title  is  perfect," 

525 


Specific  performance — Continued, 
purchaser  must  have  paid  or  ten- 
dered purchase  money,  526 
unless  he  has  notice  that  vendor 

will  not  perform,  527 
laches    takes    away    purchaser's 

right  to  relief,  528 
damages  in  lieu  of  specific  per- 
formance denied,  528 
unless  other  relief  was  in  good 
faith  the  object  of  the  suit,  529 
measure    of    damages    in     such 

cases,  531 

at    suit    of    purchaser,    with   com- 
pensation for  defects,  532 
may  take  such  estate  as  vendor 

has,  532 
or  apply  purchase  money  to  in- 

cumbrances,  536 
or  have  abatement   of  purchase 

money,  534 
basis   upon   which   compensation 

will  be  decreed,  535 
purchaser   bound   by   election   to 

keep  the  estate,  536 
decree      for      abatement,      how 

framed,  536 

purchaser  cannot  require  indem- 
nity against  future  loss,  537 
except,  it  seems,  against  inchoate 

right  of  dower,  538 
and   this  by   abatement   of   pur- 
chase money,  540 
where  specific  performance  with 

abatement  denied,  542 
where  there   is  title  to   small 

portion   only.   542 
where  conditions   of   sale  pro- 
vide for  rescission.  542 
whore   purchaser   bought   with 
'knowledge  of  defect,  543,  544 
where      purchaser      has      been 

guilty  of  laches,  543 
where  contract  was  to  convey 

upon  a  contingency,   543 
where    inconsistent    with    the 

contract,  544 

purchaser  must  have  given  ven- 
dor opportunity  to  abate.   545 
must  take  the  whole  of  part  to 

which  title  i?  pood.  545 
right  of  vendor  to  rescind  where 

title  fails.  545 
denied,    unless    reserved    in    the 

contract,  545 
or  except  in  case  of  fraud  or 

mistake.  546 
vendor  rescinding  must  return 

purchase  money,  548 
specific    performance    of   covenants 
for  title,  557 


992 


INDEX 


[REFERENCES  ARE  TO  PAGES] 


Specific  performance — Continued, 
of    covenant    for    further    assur- 
ance. 557 

removal  of  incumbrance,  558,  559 
conveyance  of   after-acquired  es- 
tate, 560 
at  suit  of  vendor,  767,  872,  907 

State.     (See  EMINENT  DOMAIN.) 
covenants  cannot  be  required  from, 

162 
but   if  given  operate  an   estoppel, 

162 
appropriatien     of     lands     by,     no 

breach  of  warranty,  383 

Statute.    (See  LIMITATIONS,  STATUTE 

OF.) 
of  Frauds,  agreement  to  rescind  is 

not  within,  630 
does  not  affect  right  to  recover 

back  purchase  money,  647 
title  as  dependent  on  private,  827, 
829,  11.,  843,  n. 

Street.     (See  HIGHWAY.) 

Subrogation. 

of  surety,  to  be  noted  in  examining 
title.  183 

of  purchaser  at  judicial  and  min- 
isterial sales,  138,  144 

of  purchaser  to  benefit  of  lien,  555 

where  no  covenants  for  title,  710 

Subsequent    purchaser.      (See    PUR- 
CHASER.) 

entitled  to  benefit  of  covenants  for 
title,  335,  409 

Sufficiency  of  conveyance  tendered. 
(See  DEED.) 

Sufficiency  of  vendor's  title.  (See 
DorHTKri.  TITLE,  TITLE,  ABSTRACT 
or  TITLE.) 

Suit.     (See  ACTION.) 

effect  of  notice  to  covenantor  of, 
and  request  to  defend.  460 

in  equity,  when  a  breach  of  cove- 
nant for  quiet  enjoyment,  475 

Sunday. 

deed  executed  on,  is  valid,  46 

Surplusage. 

doea  not  vitiate  certificate  of 
acknowledgment,  73 

Surrender. 

of  premise*,  when  a  constructive 
eviction,  394 


Surrender  —  Continued. 

adverse  title  must  have  been  bos- 

tilely  asserted,  399 
and  must  be  shown  to  have  been 

paramount,  400 

Suspension  of  power  of  alienation, 
title  as  dependent  on,  cases  cited, 
840,  n.,  842,  11. 

Taxes. 

to  be  noted  in  examining  title,  184 
when   breach   of   covenant    against 

incumbrances,  312 
covenants   for   title   cannot   be   re- 
quired from  tax  officer,  162 
when  to  be  paid  by  purchaser,  649 

Tax  sale. 

will  not  pass  benefit  of  covenants 

for  title,  415 
caveat  emptor  applies  to,  136 

Tax  title. 

validity  of  tax  sale  to  be  noted  in 

examining  title,  184 
burden   is  on   adverse  claimant  to 

show  invalidity  of,  184 
caveat  emptor  applies  to  purchase 

at  tax  sale,  136 
and  has  been  applied  to  transfer 

of  tax  title,  136 
not  marketable,  when,  848 

Tenants  in  common. 

should  covenant  severally,  157 
may   sue    severally    for    breach   of 
warranty,  379 

Tender  of  performance. 

by  purchaser,  necessity  for,  209 
distinction  between  mutual  and  de- 
pendent covenants,  210 
what  is  sufficient  tender,  212 
when  no  tender  need  be  made,  212 
duty  of  vendor  to  tender  perform- 
ance, 216 
vendor    must    prepare    conveyance, 

220 
tender  must  be  averred,  222 

Term  of  years.     (See  LEASE.) 

Timber. 

privilege,       breach       of      covenant 
against  incumbrances,  319 

Time.      (See   LACHES,   LIMITATIONS, 

STATUTE  or.) 

of  completing  contract,  when  mate- 
rial. SS3 

in    which   to  perfect  the  title   al- 
lowed, 872,  879 


INDEX 


993 


[REFERENCES  ARE  TO  PAGES] 


Time  —  Continued. 

in  which  to  examine  title  allowed, 
171 

in  which  abstract  should  be  fur- 
nished, 169 

title  as  dependent  on  presumptions 
from  lapse  of,  814,  866 

Title.    ( See  TITLE,  EIGHT  TO  PERFECT 

THE.) 

absolutely  'bad,  what  is,  2 
purchaser  may  demand  what,   20, 

767 
covenants     for,     which     purchaser 

may  demand,  147 
abstract  of,  163 
should  be  examined  by  purchaser, 

164,  2.54,   259,  428 
of  lessor  not  usually  examined,  157, 

443,  773 

waiver  of  objection  to,  190 
paramount,   may   be  gotten   in   by 

covenantee,  401,  549 
may  be  perfected  by  purchaser,  401 
acceptance    of,    with    compensation 

for  defects,  532,  907 
subsequently    acquired,    enures    to 

grantee,  561 
root  of,  what  is,  165 
doubtful,  what  is,  768 
as  dependent  on  adverse  possession, 
805 

presumptions  from  lapse  of  time, 
814 

notice,  817 

errors    in    judicial    proceedings, 
821 

sale    of    estates    of    infants    and 
others,  826 

want  of  parties  to  suits,  828 

defective  conveyances,  833 

construction  of  deeds  and  wills, 
839 

competency  of  parties  to  instru- 
ments, 841 

intestacy   and    insolvency,   847 

satisfaction      of      incumbrances, 

864 

vendor  may  perfect,  872 
may  be  referred  to  master  in  chan- 
cery, 900 

Title  bond. 

is  a  sealed  obligation  to  make  title 

under  penalty,  2*4 
acceptance    of,    has    been    held    a 
waiver  of  rigiLt  to  rescind,  205 
contrary  view  in  other  cases,  656 

Title,  Right  to  perfect  the. 

right  of  purchaser  to  perfect  the 
title,  549 


.Title,  Right  to  perfect  the  — Cont'd. 
by  the  purchase  of  adverse  claim, 

549 
but  only  as  set-off  to  purchase 

money,  550 

unless  he  has  been  evicted  or  sur- 
rendered the  premises,  549 
purchase  must  have  been  neces- 
sary for  his  protection,  551 
price     paid     not     conclusive     of 

value  of  adverse  claim,  552- 
caution    in    purchasing    prospec- 
tive interests,  552 
discharge    of    liens    and    incum- 
brances, 552 

purchaser  may  always  apply  pur- 
chase money  to  liens,  553 
duty  so  to  Apply  purchase  money, 

553 
takes  the  risk  of  validity  of  ihe 

incumbrance,  554* 
caution   in   paying  off  mortgage 

lien,  554 

rights   of  transferee  of  mort- 
gage note,  554 
can  have  credit  only  for  amount 

actually  paid,  555 
subrogation  to  benefit  of  lien-  dis- 
charged, 555 
and  to  all  of  lienor's  remedies, 

555 
but  only  to  extent  of  amount 

paid  out,  555 
in  case  of  void  sale,  556.     ( See 

CAVEAT  EMPTOR.) 

right  of  vendor  to  perfect  the  title 
before   time   fixed   for   comple- 
tion of  the  contract,  872 
vendor    may    of    right   remove 

objections,  872 
unless  he  has  no  colorable  title, 

873 

existence  of  incumbrances  im- 
material.  8.74 

unless    contract   provides   that 
they  shall  be  discharged  be- 
fore time  for  completion,  S>74 
purchaser   should  make  objec- 
tions to  title  in  time,  875 
day  fixed  for  performance  usu- 
ally a  formality,  875 
rule   where  no   time  is  fixed, 

876 

where  purchase  money  is  pay- 
able in  installments,  877 
vendor  must  pay  costs  of  suit, 

878 
injunction  or  ne  exeat  will  not 

be  granted  vendor,  878 
vendor  not  obliged  to  perfect 
the  title,  878 


994 


INDEX 


[REFERENCES   AHE  TO   PAGES] 


Title,  Right  to  perfect  the  —  Cont'd. 
after  lime  fixed  fur  completion  of 

the  contract.  -87!) 
may   perfect    the   title   at    any 

time  before  decree,  870 
especially    if    purchaser    knew 

title  was  defective,  882 
but     cannot     have     indefinite 

time,  882 

exceptions  to  the  general  rule, 
883 

(1)  where  time  is  material, 
883 

(2)  where  the  covenants  are 
mutual      and      dependent 
8S6 

(3)  where  the  vendor  has  ac- 
quiesced in  purchaser's  ob- 
jections, 887 

(4)  where  much  loss  and  in- 
jury would  result  to  pur- 
chaser, 887 

(5)  where  vendor  has  been 
guilty  of  fraud,  888 

(6)  where    vendor    had    no 
colorahlo  title,  888 

(T)    where  vendor  has  been 
guilty  of  laches,  894 

(8)  where    contract    stipu- 
lates for  rescission,  895 

(9)  where  time  is  made  .ma- 
terial by  notice,  897 

in  what  proceedings  vendor  may 
exercise  the  right,  898 

in  suit  for  specific  perform- 
ance by  either  party,  898 

in  suit  to  enjoin  collection  of 
purchase  money,  899 

in  certain  suits  at  law,  899 
reference   of   title   to  master    in 
chancery,  900 

when  title  will  be  referred,  900 

reference  is  a  matter  of  right 
when  title  i-  doubtful,  900 

denied,  where  mere  interest, 
MH  h  as  it  might  be,  was 
sold,  901 

and  whero  the  court  is  satis- 
fied about  the  title,  902 

at  what  stage  of  the  proceed- 
ing reference  directed,  902 

procedure  on  reference,  902 

coats  of  reference,  how  de- 
creed, 903 

interest  on  purchase  money  while 
title   i»  being  perfected,  904 

purchaser  in  most  onsen  ex- 
cused from  paying  intercut, 
905 


Tortious  acts. 

no  breach  of  covenant  of  warranty, 

379 
except    those    of    grantor    or    his 

agents,  382 

Trust,  Deed  of. 

sale  under,  when  enjoined  for  de- 
fect of  title,  935 

Trustee. 

caveat  emptor  applies  to  sale  by, 
136 

general  covenants  cannot  be  re- 
quired from,  158 

title  as  dependent  on  power  of, 
843-840,  notes. 

Uncultivated  and  waste  lands.     (See 
VACANT  LANDS.) 

Usual   covenants.      (See    COVENANTS 
FOB  TITLE.) 

Vacant  and  unoccupied  land. 

what  is  constructive  eviction  from, 
393 

Value.      (See   IMPROVEMENTS,   DAM- 
AGES.) 

Vendor.     (See  PURCHASER.) 
entitled     to     reasonable     time     in 

which     to    prepare    and    tender 

deed,   15 
when    restrained    from    suing    for 

purchase  money,  15,  917 
what    covenants   may    be    required 

from,  147 

must  furnish  abstract  of  title,  167 
competency    of,    to    be    noted    in 

examining  title,  177,  188 
duty  to  tender  performance  of  con- 
tract, 216 
must  disclose  latent  defects  in  the 

title,  2o2 
not    bound    to    call    attention    to 

patent  defects,  254 
may    rescind    on    failure    of    title, 

when.  545,  626 
must  convey  subsequently  acquired 

title,   476,   518 
may    maintain    ejectment    against 

purchaser,   when,  673 
has   a    right    to   perfect    the   title, 

when,  872 
may  require  purchaser  to  take  title 

with  compensation,  when.  !>"7 
defense  of,  to  purchjuer's  applica- 
tion for  relief,  5,  9 

Vendor's  lien. 

to  be  noted  in  examining  title,  179 


IXDEX 


995 


[REFERENCES  ABE  TO  PAGES] 


Venue. 

of    certificate    of    acknowledgment, 
importance  of,  6JO 

Voluntary  conveyance.     (See  VOLUN- 
TEERS.) 
title  as  dependent  on  notice  of,  817 

Volunteers. 

deed  will  not  be  reformed  in  favor 

of,  624 
Waiver. 

of  objections  to  deed,  77 

Waiver  of  objections  to  title. 

not  necessarily   a   waiver  of  right 

to  compensation,  191 
irf   an  implication  of   law  in  most 

cases,  192 
resale  does  not  amount  to  waiver, 

195 

waiver   by   taking   possession,    196 
implied   from  laches  of   purchaser, 

199 
waiver  by  continuing  negotiations 

with  vendor,  200 
waiver  in  cases  of  fraud,  201 
implied  from  purchase  with  notice 

of  defect,  203 

none  implied  from  want  of  agree- 
ment for  covenants,  205 

Want  of  title.  (See  DOUBTFUL  TITLE, 
TITLE,  PURCHASER,  VENDOR.) 

Warrantia  chartae. 

writ  of,  no  longer  in  use,  356 

Warranty,  Covenant  of. 

origin  and  form,  355 
can  be  created  only  by  deed,  357 
is  either  general  or  special,  357 
construction  and  effect,  359 
includes    the    other    covenants    in 

some  States,  359 
when    does    not    include    covenant 

against   incumbrances,   360 
effect  by  way  of   estoppel   or   re- 
buttal.    (See  ESTOPPEL.) 
not  affected  by  notice  of   adverse 

claim,  361 
want  of  consideration  no  defense  to 

action  on,  362 
Statute   of   Limitations   begins    to 

run,  when,  362,  3S7 
does  not  extend  to  quantity,  363 
qualification    and    restrictions    of, 
365 

express     intention     to     restrict 
must  appear,  366 

conveyance   of  "  right,  title   and 
interest"  with  warranty,   367 


Warranty,  Covenant  of  —  Continued. 
when   implied,  3G9 
in  a  lease,  37 1« 
in  an  exchange,  372 
in   partition,    372- 
none  from  recitals  in  a  deed,  373 
parties  bound  and  benefited,  373. 
married-  women,  373 
heirs  and  devisees-,  374 
joint  covenantors,  376 
bankrupts;  376 
personal       representatives       and 

fiduciaries,  .377 
municipal  corporations,  37S 
who  may  sue  for  breach,  378 
what  constitutes  breach 

not  broken  by  tortious  disturb- 
ance, 379 

except  by  covenantor  himself, 
•    382 

nor  by  exercise   of  eminent   do- 
main, 383 

broken  by  eviction  only,  385 
entry    by    paramount    claimant, 

3SS 

under  legal  process,  388 
under      foreclosure      of      incum- 

brance,  389 
constructive  eviction,  390 

inability  to  get  possession,  390 
vacant    and    unoccupied    land, 

393 

surrender  of  possession,  394 
judgment   in    ejectment    not 

an  eviction,  396 
hostile  assertion  of  adverse 

claim,  399,   405 
must  show   paramount   title 

in  surrenderee,  400 
purchase  of  outstanding  title, 

401 

covenantee   must  show   that 

title  was   paramount,  403 

discharge  of  incumbrance  to 

prevent  eviction,  404 
loss  of  incorporeal  hereditament, 

407 
existence    of    adverse    easement, 

407 

runs  with  land  till  eviction,  409 
assignee  after  eviction,  entitled, 

when,  410 

equitable  owner  not  entitled,  411 
assignee    may    sue    in    his    own 

name,  411 
several   actions    against   original 

covenantor,  412 
release  of  covenant  by  immediate 

covenantee,  412 
quit  claim  passes  benefit  of,  414 


996 


INDEX 


[REFERENCES  ARE  TO  PAGES] 


Warranty,  Covenant  of  —  Continued, 
intermediate     covenanted    _must 

have   been  damnified.   415 
remote  assignee  may  sue  original 
covenantor,  417 
mortgagee  entitled  to  benefit  of, 

419 
original    covenantor    must    have 

been  actually  seized,  420 
nominal  grantor  joining  for  con- 
formity not  liable  to  assignee, 
421,  430 
assignee  not  affected  by  equities 

of  covenantor,  422 
covenant  extinguished  by  recon- 
veyance to  grantor,  423 
pleadings  in  suit  by  assignee,  423 
measure  of  damages,  424 

in  most   States  is   consideration 

money,  424 

value  a*t   time  of  eviction   is,  in 

New  England  States,  425,  433 

exception  to  general  rule  in  case 

of  mortgage,  427 
no  allowance  for  improvements, 

428,  450 

not     aggravated      by     grantor's 

fraud,  but  actual  damages  may 

be  given  in  action  for  deceit, 

429 

is  value  at  time  of  contract  and 

not  time  of  conveyance,  429 
nominal    only    against    nominal 

grantor,  430 
and    against    mere    voluntary 

grantor,  430 
purpose  of   purchase   immaterial 

on  question  of,  431 
governed   by   lea   loci   contracts, 

431 
on  collateral  contract  to  remove 

incumbrance,  432 
failure  of   grantee   to  take    pos- 

session   does  not  affect,  432 
where  purchase  money  ia  unpaid, 

432 

in  favor  of  assignee,  436 
true      consideration       may      be 

shown,  436 

stated  in  deed  prima  facie  evi- 
dence only,  430 
where  none  stated,  437 
where  not  paid  in  money,  43S 
agreement  for  non-liability  in- 
admissible, 438 

where  covenantee  buys  in  para- 
mount title.  439 
can    recover    only    amount    so. 

paid,  439 

except  where  premises  were 
public   luiuN,  440 


Warranty,  Covenant  of  —  Continued, 
and  necessary  expenses  there- 
with incurred,  440 
must  show  that  title  was  para- 
mount, 440 
refusal   to   buy   in   immaterial 

on  question  of,  440 
on  eviction  from  leased  premises, 

442 
actual  value  of  residue  of  term, 

442 
where  lessee  liable  for  mesne 

profits,  444 

on  eviction  from  part  of  prem- 
ises, 444 
relative  and  not  average  value 

of  part  lost,  444 
loss  of  part  no  ground  for  re- 
scission, 44S 
where   grantor   had   only    a    life 

estate,  448 
burden    on    plaintiff    to    show 

relative  value,  449 
where    premises    are    subject    to 

easement,  449 
interest  as  element  of  damages, 

450 
as    governed    by    liability    for 

mesne  profits,  453 
runs   from   time   of    purchase, 

453 

costs  in  suits  by  adverse  claim- 
ant as  element  of  damage, 
453 
where  notice  of  suit  has  been 

given,  453 
conflict   of    authority   on    this 

question,  454 
refused,    unless    plaintiff    has 

been  evicted,  455 
other  cases  in  which,  refused, 

456 

special    agreement    to    indem- 
nify not  merged  in  deed,  457 
grantee    need    not    show    pre- 
vious demand  for  reimburse- 
ment, 457 

counsel  fees  and  expenses  as  ele- 
ments of  damage,  45S 
conflict    of    authority    on    this 

point,  458 

as  dependent  on  notice  and  re- 
quest to  defend.  459 
notice  to  defend  or  prosecute  eject- 
ment, 460 

if  given  relieves  covenantee  from 
showing  recovery  under  para- 
mount title,  461 
denied  in  North   Carolina.  462 
concludes    covenantor    from   dis- 
puting title  of  evii-tor.  463 


INDEX 


997 


[REFERENCES  ARE  TO  PAGES] 


Warranty,  Covenant  of  —  Continued, 
unless  derived  from  covenantee 

himself,  465 
should    be    given    to    covenantee 

himself,  464 

to  agent  for  collection  of  pur- 
chase money  insufficient,  464 
is  nugatory  in  case  of  actual  col- 
lusion, 465 
right  of  covenantor  to  new  trial, 

465 
must  be  unequivocal,  certain  and 

explicit,  465 

mere  knowledge  of  action  insuffi- 
cient, 465 
effect     of     notice     to     prosecute 

ejectment,  466 
no  particular  form  of,  necessary, 

466 

need  not  be  in  writing,  466 
if  not  given,  judgment  not  even 
prima  facie  evidence  of  title, 
467 
must  be  given  in  reasonable  time, 

468 

fact  of,  is  question  for  jury,  468 
sufficiency    of,    is    question    for 

court,  468 
not  indispensable  to  recovery  on 

warranty,  468 
merely  dispenses   with   proof   of 

title  in  evictor,  46S 
but    covenantee    must    always 
show  that  such  title  was  not 
derived  from  himself,  469 
pleadings    in  action   for  breach   of 

warranty,  471 

covenant  must  be  set  out  in  sub- 
stance, 471 


Warranty,  Covenant  of  —  Continued, 
eviction    by    one    having    lawful 

right  must  be  averred,  472 
not  sufficient  merely  to  negative 

words  of  covenant,  471 
but  nature  of  eviction  need  not 

be  alleged,  471 
title  of  evictor  need  not  be  set 

forth,  472 
reliance   on   warranty   need   not 

be  alleged,  472 

must  aver  that  title  of  evictor 
was  older  than  that  con- 
veyed, 472 

unless  warranty  was  limited  to 
claims   of   a   particular  per- 
son, 472 
notice  and  request  to  defend  need 

not  be  averred,  473 
must   aver  that  title  of   evictor 
was  within  the   covenant,  473 
burden  of  proof  lies  on  plaintilT 
but  shifts  under  certain  circum- 
stances, 473 

warranty  is  proven  by  the  deed, 
without  proof  of  execution, 
474 

detention  of  purchase  money  on 
breach  of,  480.  (See  PURCHASE 
MOIHET.) 

Will. 

objections  to  title  apparent  on  face 
of,  180 

mistake  in,  cannot  be  corrected, 
608 

questions  of  title  arising  on  con- 
struction of,  839 

Words  of  conveyance. 

indispensable  in  deed.     (See  DEED.) 


LAW  UBRARY 

OF  CAUFORMA 
LOS  ANGELES 


^£  J?Si.THIRN  REGIONAL  LIBRARY  FACIUTY 


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